356 Mass. 447 (1969), Commonwealth v. Benton

Citation:356 Mass. 447, 252 N.E.2d 891
Party Name:COMMONWEALTH v. Richard A. BENTON (and a companion case [ 1]).
Case Date:December 02, 1969
Court:Supreme Judicial Court of Massachusetts

Page 447

356 Mass. 447 (1969)

252 N.E.2d 891



Richard A. BENTON (and a companion case 1).

Supreme Judicial Court of Massachusetts, Dukes County.

December 2, 1969

Argued Nov. 3, 1969.

Joseph P. Harrington, Asst. Dist. Atty., for Commonwealth.

Harold Hestnes, Boston, Gordon T. Walker, Milton, for defendants.


WILKINS, Chief Justice.

These are indictments in the Superior Court for Dukes County. The defendants [252 N.E.2d 892] were arraigned in the District Court of Dukes County and each pleaded not guilty to six complaints charging possession of marihuana, G.L. c. 94, § 205; conspiracy to violate the narcotic drug laws, G.L. c. 94, § 213A; possession of marihuana, G.L. c. 94, § 205; being present where a narcotic drug was illegally kept, G.L. c. 94, § 213A; possession of a harmful drug, a

Page 448

derivative of barbituric acid, G.L. c. 94, § 187B; and unlawful sale of a narcotic drug, to wit, marihuana, G.L. c. 94, § 217. The sales were felonies, and the other crimes were misdemeanors. G.L. c. 94, § 217.

Subsequently, with police approval, an assistant district attorney entered into an arrangement with the defendants whereby he agreed to nol pros the complaints charging unlawful sale provided the defendants pleaded guilty to the other complaints, and would cooperate by providing the police with all information they had as to the source of the marihuana. The defendants actually did plead guilty to all complaints except the two for selling. On each of the latter the assistant district attorney indorsed and signed, 'April 10, 1968. The within complaint is nol prossed for reason of insufficient evidence at this time.'

On or about May 13, 1968, the district attorney obtained indictments for the identical offences which were the subject of the nol prossed complaints. This was in breach of the agreement between the assistant district attorney and the defendants upon which the defendants relied and which they fully performed.

A Superior Court judge allowed motions to dismiss the indictments, and reported the cases to this court for a determination whether a nol pros of a felony complaint in consideration of pleading guilty to several complaints charging misdemeanors is a bar to the prosecution of a subsequent indictment for the offence nol prossed. G.L. c. 278, § 30A.


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