Commonwealth v. Ruth

• Decision Date: 29 October 1883
• Citation: 104 Pa. 294
• Parties: Commonwealth <I>versus</I> Ruth Same <I>versus</I> Same.
• Court: Pennsylvania Supreme Court

104 Pa. 294

Commonwealth versus Ruth

Same versus Same.

Supreme Court of Pennsylvania.

October 16, 1883.

October 29, 1883.

October 16th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Quarter Sessions of Washington county: Of October and November Term 1883, Nos. 83 and 84 R. C. McConnell, district attorney, for the Commonwealth. —The action of the court was substantially the exercise of a power to enter a nolle prosequi in a criminal cause, against the protest of the representative of the Commonwealth, who alone has that power, to be exercised by him, however, only by leave of the court. The court can assent, but cannot require: Act of 1860 Purd. Dig. 381, pl. 30.

[MERCUR, C. J. Where is there any final judgment to which a writ of error will lie?]

In form the judgment is interlocutory, but in effect it is final, because it stays the Commonwealth's indictment indefinitely against the protest of the Commonwealth's officer. The facts set forth in the petition show that a criminal prosecution was resorted to enforce the settlement of a civil claim, and that the private prosecutor in now willing to abandon the prosecution. But this cannot be done, where the district attorney is unwilling, in the exercise of his official duty, to enter a nolle prosequi.

A stet is something technically unknown to our criminal law. Text-writers ignore such a term. In Whart. Law Lex. (English), it is thus defined: "stet processus, an order of the Court to stay proceedings, and strictly, it can only be made with the consent of the parties; but where the ends of justice will be better answered by this course, it is authoritatively recommended by the court." And Bouvier, Law D.: "An order made, upon proper cause shown, that the process remain stationary." But, though the term is unknown to the text-writers on Criminal Law, and to our Crimes Act and Criminal Procedure Act, yet it is applied in courts below, at least in ours, to a suspension of sentence after a conviction, in minor misdemeanors, when the circumstances of the case will justify, but never without the consent of the district attorney. Such suspension is only temporary and can be lifted at any time on motion of that officer. In the present case, however, the term was applied to an act which, being against the protest of the district attorney and overruling his motion for judgment, was an absolute termination of the prosecution, and to all intents and purposes was the entry on the part of the court of a nolle prosequi against the protest of the district attorney, and this, the court had no power to do: People v. McLeod, 1 Hill 377; 25 Wend. 483; 37 Amer. Decis. 328; Thomason v. Demotte, 9 Abb. Pr. 243; 18 Howard Pr. 529.

[PAXSON, J. You concede the power of the court to enter the stet if you had given your consent?]

Yes.

[MERCUR, C. J. And that if the court below were to take off the stet, there would be no impediment to proceeding to trial and final judgment?]

There would be none, but the error is in tying up the district attorney's hands, as he cannot compel the court to undo what, we submit, the court had no power to do except with the consent of the prosecuting officer, who represents the executive. The action of the court, unrevoked, is equivalent to a pardon of the defendant.

Jas. B. R. Streator (Aiken & Duncan with him), for the defendant in error, moved to quash the writs of error, on the ground that there was no final judgment in the court below.

Chief Justice MERCUR delivered the opinions of the court, October 29th 188...