Com. v. Hart

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: W. ALLEN, J.
• Citation: Com. v. Hart, 149 Mass. 7, 20 N.E. 310 (Mass. 1889)
• Decision Date: 01 March 1889
• Parties: COMMONWEALTH v. HART.

149 Mass. 7

20 N.E. 310

COMMONWEALTH v. HART.

Supreme Judicial Court of Massachusetts, Middlesex.

March 1, 1889

COUNSEL

J.L. Eldridge, for appellant.

A.J Waterman, Atty. Gen., for the Commonwealth.

OPINION

W ALLEN, J.

To a complaint brought before a police court for a misdemeanor the defendant pleaded in bar a former acquittal by the same court on a complaint for the same offense. The defendant pleaded not guilty to the former complaint, and was put upon his trial thereon, and evidence heard against him and he was discharged.

The only ground for holding that the former judgment is not a bar is in the statement that, during the progress of the trial "the court nol. prossed the complaint." In general, a person put upon trial for a crime is thereby put in jeopardy, and cannot be again tried for the same offense. Of the exceptions to this rule it is necessary to refer only to the one upon which the commonwealth relies. Where a prosecution is terminated during the progress of a trial by the entry of a nolle prosequi by the commonwealth's attorney, with the consent of the defendant, the general right of a defendant on trial to insist upon a determination of the trial which will bar another prosecution is admitted; but it is claimed that the attorney for the commonwealth has a right to enter a nol. pros. during a trial, and leave with the defendant his right to a verdict, and that if the defendant does not insist upon that right, but accepts his discharge without a verdict, there will be no bar to another prosecution.

It would seem that after the termination of a prosecution there would be nothing before the court upon which a verdict could be rendered, and that the court could do nothing except to discharge the defendant. The true rule would seem to be that after a trial has commenced the commonwealth's attorney though he has the power, has not the right to terminate the prosecution without a verdict, and his refusal of record to further prosecute the indictment has the effect of, and amounts to, an acquittal of the defendant, unless it is done with his consent. Com. v. Roby, 12 Pick. 496; Com. v. Tuck, 20 Pick. 356; Com. v. Scott, 121 Mass. 33; Com. v. McCormick, 130 Mass. 61. But, whatever the rule may be in regard to the discontinuance of a prosecution by the authorized attorney for the commonwealth, we do not think that it applies to the case at bar. No nolle prosequi was entered in this case. Only an attorney authorized by the commonwealth to represent it has authority to declare that he will not further prosecute a case in behalf of the commonwealth. A court is not a prosecuting officer, and does not act as the attorney for the...