Barrett v. State

• Court: Maryland Supreme Court
• Writing for the Court: ADKINS, J.
• Citation: Barrett v. State, 155 Md. 636, 142 A. 96 (Md. 1928)
• Decision Date: 25 May 1928
• Docket Number: 26.
• Parties: BARRETT v. STATE.

142 A. 96

155 Md. 636

BARRETT v. STATE.

No. 26.

Court of Appeals of Maryland

May 25, 1928

Appeal from Circuit Court, Harford County; Walter W. Preston, Judge.

Elmer Barrett was indicted for larceny, and from an order directing the entry of a nolle prosequi, he appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

William H. Harlan, of Bel Air, for appellant.

Thomas H. Robinson, Atty. Gen., and W. Worthington Hopkins State's Atty., of Bel Air, for the State.

ADKINS, J.

Appellant was indicted for larceny, and pleaded "not guilty." When the case was called for trial, the witnesses for both sides were present, and both sides stated they were ready for trial, and the defendant elected to be tried by a jury. The jury being about to be impaneled, the state's attorney stated to the court that the state was unable to prove the charge against the defendant, and further stated that he desired to enter a nolle prosequi in the case. The defendant objected to this entry being made, and moved the court to require the state's attorney either to enter "not guilty confessed," or to proceed then and there to impanel a jury to try the charge upon which the defendant had been indicted. The court ruled that the state's attorney had the absolute right against the protest, and therefore overruled the motion of the defendant, and directed the entry of a nolle prosequi to be made as asked by the state's attorney. This appeal is from that action of the court.

There is a motion by appellee to dismiss the appeal on the ground that there was no sentence, judgment, or final determination of the case.

The motion is overruled. There was a final disposition of the case when the court ordered the entry of the nolle prosequi at the instance of the state's attorney. The question raised by the motion of the defendant was, not the proper exercise of discretion, but the right to make the entry over the objection of the defendant.

If we agreed that there had not been "a final determination of the case," it would be difficult to sustain the action of the trial court. For it would be intolerable, and subversive of the constitutional rights of the accused to a speedy trial, if the state's attorney had the power, with or without the concurrence of the court, to discontinue the trial by the entry of such an order, and at some future time again put the accused on trial under the same indictment. By the great weight of authority the case was terminated when the order was entered, and there can be no further prosecution under that indictment. 16 C.J. p....