State ex rel. Bier v. Klock

• Decision Date: 21 December 1895
• Docket Number: 12,003
• Citation: State ex rel. Bier v. Klock, 48 La.Ann. 140, 18 So. 942 (La. 1895)
• Court: Louisiana Supreme Court
• Parties: STATE EX REL. HENRY BIER v. REMY KLOCK, CRIMINAL SHERIFF, ET AL

18 So. 942

48 La.Ann. 140

STATE EX REL. HENRY BIER v. REMY KLOCK, CRIMINAL SHERIFF, ET AL

No. 12,003

Supreme Court of Louisiana

December 21, 1895

Argued December 12, 1895

APPLICATION for Habeas Corpus.

Lazarus Moore & Luce and E. B. Kruttschnitt, for Relator.

E Howard McCaleb and Richard H. Browne, for Respondents.

OPINION

BREAUX J.

In answer to the order nisi issued by this court on the application of the plaintiff for a writ of habeas corpus, omitting the words of form, the sheriff says that the plaintiff is held by him under a capias and commitment issued by the Judge of Section B of the Criminal District Court, by reason of a verdict of guilty of the crime with which he was charged.

The question in the case is, whether the District Attorney, in his motion having substantially averred that the testimony of the plaintiff had been accepted by the State, and the ends of justice suggesting, could have a nolle prosequi entered after verdict and the action dismissed.

It is only an act of justice to the prosecuting officer to add that a majority of the grand jurors who indicted the plaintiff, and all the grand jurors of a subsequent term of the court, as well as eleven of the petit jurors who heard the cause, signed petitions requesting him to present a motion for a discontinuance of the case; he also made a certificate of a highly reputable physician in regard to the dangerous illness of the plaintiff and the needful opportunity for recuperating, that he might testify, part of the motion.

Plaintiff urges that the detention of his person is oppressive and without process of law, no judgment having been rendered.

There can be no question that the effect of the different acts in regard to the functions of the District Attorney invests him, under some limits, with the authority to represent the State in criminal cases. With energy and force the common law of England is invoked at the bar as applying to the question here involved.

To illustrate the power claimed we state the proposition thus: The Attorney General in England has control of the nolle prosequi; the Attorney General here has similar authority; the District Attorney's duties are not different from those of the Attorney General of Louisiana, therefore the former, the District Attorney, is charged with all the powers of the Attorney General in England.

If we were to accept the foregoing as conclusive we might illustrate by the familiar example: A=X power B=A, therefore B equals X. Unfortunately, the issues involved are not as easily disposed of; not being similar in all respects to the familiar axiom: things equal to the same thing are equal to each other.

The powers are in certain particulars entirely different; the period, the locality, the condition and many other differences suggest themselves.

The Attorney General in England is the sovereign's "own Attorney General," and is vested with many and various functions. It is said that the power to enter a nolle prosequi is completely in the hands of this high officer of the crown, and that no other person, official or unofficial, can prevent its exercise. The crown has no local prosecuting officer.

Granted (for the moment, for we have authority not in accord with the foregoing, to which we will hereafter refer) that the powers are as just stated; the limitation in England is not entirely without application here; the necessity for expanding the power, under the terms of the law, is not more evident here than it was in England. Why should the power of the Attorney General in regard to the nolle prosequi, not distributed in England, be distributed in the twenty-two judicial districts of this State, without express exactment?

But we recur to the authority of that officer and quote as follows as pertinent: "In the Oyer and Terminer case, in New York, it was considered to be a question for the court to decide on motion of the prosecuting officer, 'whether or not to admit an accomplice,' and in the particular instance the court refused. Said Duer, J.: 'So long as by the policy of the law accomplices are deemed competent witnesses against their fellows, so long must a discretion in regard to admitting them be vested somewhere or other in the government. It could not consistently with the nature of the power or the course and...