Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1913-03-19
THE N0LLE PR0SEQUI
IN CRIMINAL CASES.
lEx-Chief-Justice Emery in Maine Lap Re-
riese; written and published at the request
Of several lawyers and laymen.

The notie prosequi In criminal cases, as
the term itself indicates, is a declaration
of record by the prosecuting officer of the
government attorney general or county
attorney or district-sttorney) that he
will no further prosecute the particular
complaint or indictment or some desig-
mated part thereof. In England the power
of nolle prosequi is exclusively with the
attorney general, or his deputy, who exer-
cises it without interference from the
court.
An amusing and yet forceful illustration
of this is given in Csmpbell's "Lives of
the Lord Chief Justices, vol. 3. page SO.
One John Atkins was being prosecuted
ton, when one of his friends visited the
chief-iustice and said: al come to you a
! prophet from the Lord God who has sent
| me to thee and would have thee grant a
nolle prosequi for John Atkins, His SER
want, whom thou has cast into prison.
The chief Justice replied: ssThou art a
false prophet and lying knave. II the
/
been to the attorney-genersl, for He
knows it belongeth not to the chief jus
tice to grant a nolle prosequi; but l, as
chief Justice, can grant a warrant to COM
! nit thee to bear him company" which he
| did.
| With us the functions of the English
attorney general are performed by prose-
cutting officers, known in different states
| by the official name OF attorney general,
county-attorney, district attorney and the
| like, and to them, therefore, pertains the
| common law power OF noIIs prosequi to
| be exercised, as in England, free from ju-
| dicial control. Indeed, by the better
practice, the Court should not even advise
| the prosecuting officer in the matter. l
! Bish. on Grim. Procedure, secs. 1887, 1855.
| Thus, in Commonwealth V. Wheeler 2
| Mass, IT2-4, Chief Justice Parsons, in
| speaking of the entry OF noIie prosequi
| in the case, said: ~ observe the noite
| prosequi is alleged to have been entered
| by the advice of the court of common
/ pleas. Certainly the Court are not legally
| competent to give any advice on this sub
| iect. The power of entering nolie prose-
qui is to be exercised at the discretion of
the attorney who prosecutes for the gov
eminent, and for its exercise be alone is
responsible"
In Commonwealth V. Tuck 20 Pick. 1856,
the Court said: "The power to enter a
notle prosequi is held by the attorney
general rirtate ogicii. He exerts it upon
his official responsibility. The Court has
no right to interfere with its exercise.
They can only judge of the effect of the
act when done and of the legal conse-
quences which may follow from it," In
Agnew v. Cumberland County IL s. & r.
95, the supreme court of Pennsylvania
said: 1.-THE nolie prosequi is never the act
of the Court, but of the attorney general"
The record of a nolte prosequi, in this
State at least, usually reads; "The county
attorney Tor attorney-general), says he
will no further prosecute this indictment
Tor complaint" In the United States
district courts, the practice is for the
district-attorney to write upon the back
of the indictment: II will no furt her prose-
cute this Indictment" 1t is the prosecut-
ing officer, and not the judge, who directs
the making OF the entry by the clerk. In
the case State v. Smith, 81 Me. $50, it is
stated: "No written order or declaration
of nolle prosequi was signed and filed by
the attorney for the State, but in open
court he directed the clerk to enter upon
the docket the nolfs prosequi as to the
second count, which was accordingly
DONE" This was held proper.
Further. it is too well settled to require
citation of authorities that this power of
notte prosequi may be exercised without
the consent, and even against the protest,
of the defendant at any time before jury
verdict OF guilty and before sentence; but
between the empanelling Of the jury and
the verdict the power cannot be exercised
without the consent of the defendant.
Com. v. Tuck, 20 Pick. 1856, 1856, Com. v.
Smith IS Mass. 10, Com. v. Cain 102 Mass.
467.
1t follows, rs said in the case cited, tina.
after verdict Of guilty is rendered, the
defendant is to be sentenced upon the
motion of the prosecuting attorney. In
deed, without such motion the court will
not impose sentence. Inc 1urtner prosecu-
tion of the case is still at the discretion of
the prosecuting officer. His power over it
only ceases when sentence is pronounced;
and it does cease then.
In some states statutes have been en-
acted and sustained by the courts,
requiring the consent of the Court to an
entry of nolle pyosequi by the prosecuting
| officer, thus requiring the Court to judge
of the propriety or expediency of the
entry. In this State is a somewhat SINH
lar statute as to prosecutions for violation
of our liquor laws. Whatever may be the
power of the legislature and Of the courts
in other states, l submit that under the
constitution of Maine the legislature can
not require the courts to pass upon the
| propriety or expediency Of Diminishing a
criminal prosecution by q noite prosequi.