Commonwealth v. Scott

• Decision Date: 06 September 1876
• Citation: 121 Mass. 33
• Parties: Commonwealth v. James Scott
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 33

Commonwealth v. James Scott

Supreme Court of Massachusetts

September 6, 1876

Suffolk. Indictment in three counts for three distinct larcenies from three different persons, at different times.

At the trial in the Superior Court, before Colburn, J., William J Flynn was called by the government as a witness, and testified to facts tending to connect the defendant with each of the larcenies. After Flynn had testified, it appeared that the name of the owner of the property described in the third count in the indictment was erroneously stated in that count and the district attorney stated that he withdrew the charge in that count, and offered to enter a nolle prosequi upon it or consent that a verdict of not guilty should be rendered on that count, and offered no further evidence upon it.

After the testimony for the government was in, and before the defendant's case was opened, the defendant recalled Flynn for cross-examination, and asked him if he had not given to one McCausland a different account of his knowledge of the property described in said third count from that which he had given at the trial; he said that he had. The counsel for the defendant was proceeding to examine him as to the statement made to McCausland, when the district attorney objected; and upon being asked his purpose by the court, the counsel for the defendant stated that he desired to examine the witness as to his statements to McCausland, and then contradict him by McCausland, for the purpose of showing that he had made statements to McCausland as to his knowledge of the property described in the third count inconsistent with the testimony he had already given. The judge ruled that the defendant was no longer on trial on the third count, and that the course proposed was not competent, and the witness was no further examined.

The jury returned a verdict of guilty on the first count, but not guilty on the second and third counts of the indictment; and the defendant alleged exceptions.

Exceptions sustained.

W. W. Doherty, for the defendant.

C. R. Train, Attorney General, for the Commonwealth.

OPINION

Endicott, J.

We are of opinion that the ruling of the learned judge in the court below was erroneous. It does not appear by the bill of exceptions that the defendant in terms objected to the entry of a nolle prosequi; or insisted on a verdict, on the third count; but as the jury found a verdict of not guilty on that count, it is evident that a nolle prosequi was not entered during the trial, and it is to be presumed that the defendant did not assent that it should be done.

Before the jury is empanelled, or after conviction, a nolle prosequi may be entered without the assent of the defendant; but not during the trial. It is then the right of the defendant to have the jury pass upon his case, and he is entitled to a verdict which will be a bar to another indictment for the same offence; and a nolle prosequi is not a bar. At that stage of the proceedings his consent is necessary. Commonwealth v. Tuck, 20 Pick. 356, 365. Commonwealth v. Kimball, 7 Gray 328.

The mere offer to enter a nolle prosequi did not therefore limit the trial to the two other counts. The defendant was still on trial upon all the counts, and he had the right to meet any evidence offered by the government in support of the charge in the indictment. The ground upon which the district attorney made this offer is immaterial, as affecting the principle involved. He might do so for any reason in his discretion; he might because he thought the evidence insufficient, and thus discontinue for the purpose of...