Ex parte McGrane

• Decision Date: 06 November 1925
• Docket Number: No. 447.,447.
• Citation: Ex parte McGrane, 47 R.I. 106, 130 A. 804 (R.I. 1925)
• Parties: Ex parte McGRANE.
• Court: Rhode Island Supreme Court

130 A. 804

Ex parte McGRANE.

No. 447.

Supreme Court of Rhode Island.

Nov. 6, 1925.

On Motion for Reargument Nov. 18, 1925.

Application by Paul A. McGrane for writ of habeas corpus, against the Keeper of the Providence County Jail. Writ denied.

John J. Cosgrove, of Providence, for petitioner.

Oscar L. Heltzen, Asst. Atty. Gen., for the State.

STEARNS, J. Petition for a writ of habeas corpus directed to the keeper of the Providence county jail.

The petitioner, McGrane, was indicted for an assault with a dangerous weapon. He alleges that he appeared before the Superior Court to answer to the indictment; that the Assistant Attorney General in open court entered a nolle prosequi of the indictment, and thereby said indictment was annulled; that petitioner was required to answer to a charge of assault and battery to which charge he pleaded nolo contendere and was then sentenced by the court to be imprisoned and to pay a fine; that petitioner has been committed to jail; and that his imprisonment is illegal, as there was no indictment upon which sentence could be based.

The indictment, which is in the usual form, charges that McGrane did commit an assault upon Clarence F. Pine with a dangerous weapon, to wit, a bottle, and him the said Clarence F. Pine then and there did cut, wound, and ill treat. The jacket entry of record on the indictment is as follows;

"1925 Oct. 23. Hahn J. Nol pros'd as to assault with a dangerous weapon, deft, arraigned pleads nolo contendere to simple assault and sentenced to pay a fine of 300.00 and costs and to Prov. county jail for 2 months and committed."

This record, although condensed, is sufficient to disprove the allegation of the petition that the entire indictment was nol prossed. Assault with a dangerous weapon is merely an aggravated assault, the penalty for which by statute is made more severe than for a simple assault. The offense includes an assault with the additional element of the use of a dangerous weapon. A nolle prosequi has been defined (16 C. J. s. 778) as a formal entry upon the record by the prosecuting officer, by which he declares that he will not prosecute the case further, either as to some of the counts of the indictment, or as to part of a divisible count, or as to some of the defendants, or altogether. In this state the power of and responsibility for the entry of a nolle prosequi is by the Constitution (article 7, § 12) exclusively in the Attorney General and his assistants (G. L. c. 22, § 5...