Com. v. McClusky

• Decision Date: 10 May 1890
• Citation: 25 N.E. 72,151 Mass. 488
• Parties: COMMONWEALTH v. MCCLUSKY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 488

25 N.E. 72

COMMONWEALTH v. MCCLUSKY.

Supreme Judicial Court of Massachusetts, Middlesex.

May 10, 1890

Exceptions from superior court, Middlesex county.

COUNSEL

A.J Waterman, Atty. Gen., and H.A. Wyman, Asst. Atty. Gen., for the Commonwealth.

M Coggan, for defendant.

OPINION

C ALLEN, J.

It is obvious that the defendant was put in peril by his trial in the district court, and while that peril continued, that is, during the trial in that court, it may be assumed that the refusal to prosecute further would have amounted to an acquittal. Com. v. Hart, 149 Mass. 7 20 N.E. 310; Com. v. McCormick, 130 Mass. 61. But the defendant by his appeal from the judgment of the district court has availed himself of his right to have the trial in that court go for nothing, and to be tried anew in the superior court. By availing himself of this right he placed himself in the same position as if he had not been tried at all, so far, at least, as respects the question now before us. The former judgment was set aside, and vacated. He was discharged, and free from the peril in which he formerly stood, and, as one consequence, the district attorney might enter a nolle prosequi with the same effect as if there had been no previous trial; and the general rule was applicable, that a nolle prosequi may be entered without the defendant's consent before the jury is impaneled. Com. v. Scott, 121 Mass. 33. The case of Com. v. Smith, 98 Mass. 10, is analogous, where it was held that after the verdict of guilty on an indictment had been set aside on a motion for a new trial, and before further proceedings in the case, the district attorney might enter a nolle prosequi against the objection of the defendant. It is plain that the effect of entering a nolle prosequi under such circumstances is not to acquit the defendant of the offense so as to bar a new prosecution for it. Bacon v. Towne, 4 Cush. 217, 235. There has been some discussion elsewhere as to whether a nolle prosequi after being once duly entered can be recalled and fresh proceedings taken in the same case. King v. Pickering, Hardr. 83; Queen v. Allen, 1 Best & S. 850; State v. Shilling, 10 Iowa, 106; Woodworth v. Mills, 61 Wis. 44, 20 N.W. 728; Bowden v. State, 1 Tex.App. 145. See, also, 1 Bish.Crim.Proc. § 1395, and Moulton v. Beecher, 1 Abb.N.C. 193, for ample citations of authorities. We need not enter upon that question, since no such course was attempted in the case before us. A nolle prosequi was duly entered, and it still remains of record. So far as this complaint is concerned, the district attorney declared, and still declares, that he will no further prosecute it. The defendant, therefore, should not be held further to attend to answer to it while this state of things continues, and he is entitled to be released and discharged from actual or constructive custody on this complaint, at the very least, until some step is taken to recall the nolle prosequi and to revive the complaint. But the defendant has no right to decide this question for himself, and to depart without leave. Com. v. Teevens, 143 Mass. 210, 9 N.E....