State v. Anderson

• Decision Date: 26 March 1930
• Docket Number: No. 925-5015.,925-5015.
• Citation: 26 S.W.2d 174
• Parties: STATE v. ANDERSON, District Judge.
• Court: Texas Supreme Court

26 S.W.2d 174

STATE v. ANDERSON, District Judge.

No. 925-5015.

Commission of Appeals of Texas, Section B.

March 26, 1930.

Original mandamus proceeding by the State, on the relation of H. S. Groesbeeck, as District Attorney pro tem, against William S. Anderson, District Judge, to compel respondent to set certain criminal cases for trial and to seasonably proceed to trial thereof.

Writ of mandamus awarded.

H. S. Groesbeeck, of San Antonio, for the State.

Boyle, Ezell & Grover, of San Antonio, Black & Graves, of Austin, and W. S. Anderson, of San Antonio, for respondent.

LEDDY, J.

The grand jury of Bexar county returned 40 felony indictments each against Peter and Paul O'Brien, charging theft and embezzlement from D. Sullivan, by whom they were employed, the amount of the alleged defalcation aggregating several hundred thousand dollars. Each of these parties was tried in separate cases in the district court under one indictment, such trials resulting in acquittals.

It appears that the judge of the Thirty-Seventh judicial district called a special summer term of that court to convene on August 10, 1926. At that time, the regular judge being absent, Hon. George O. Brown, a practicing attorney of the San Antonio bar, was elected as a special judge by members of the bar who were present. In the latter part of this special term the defendants in such criminal cases filed their respective motions asking the court to dismiss all of these pending indictments. None of these motions were sworn to. They set up various grounds of dismissal, among others, that the judgments entered in the cases where the defendants were acquitted were res adjudicata of the principal question involved in the pending cases, and that further trials would involve a useless expense to the state. On account of the disqualification of the then district attorney, the special judge appointed Hon. H. S. Groesbeeck as district attorney pro tem to represent the state on the hearing of these motions. He appeared in that capacity and vigorously protested the granting of said motions, but, notwithstanding such protest, on the last day of the term of said court, said special judge entered orders dismissing all of these cases, and thereupon adjourned the court for the term.

The following Monday the regular term of the Thirty-Seventh district court began, the regular judge, Hon. W. S. Anderson, presiding. The district attorney pro tem filed in said court his motion requesting the court to set for trial all of the felony cases which the special judge had attempted to dismiss. alleging that said court was without power to dismiss said causes over the protest of the district attorney, that the orders dismissing such cases were void, and that all of said cases were therefore still pending upon the docket of said court. The court overruled the motion, and refused to set such cases for trial, assigning as a reason therefor that he believed the orders of the special judge in dismissing these cases were valid, and that the cases were therefore disposed of and off the docket.

Leave was granted by the Supreme Court for relator, the district attorney pro tem, in the name of the state of Texas, to file this petition asking that writ of mandamus be awarded, compelling the regular district judge to set said criminal cases for trial and to seasonably proceed to the trial thereof.

If a district court, under the laws of this state, is without power to dismiss a good and sufficient indictment on motion of the defendant over the protest of the district attorney, then the writ of mandamus prayed for should be granted, otherwise it should be refused.

The courts of Texas must look to the Constitution of this state, the enactments of the Legislature, and the common law for their authority to summarily dismiss criminal cases over the protest of the district attorney in charge of such prosecution. And, if the authority does not exist at common law, and has not been conferred by the Constitution nor by the statutes of this state, then the attempted exercise of such power by the court in this instance is ineffectual and void. Austin & N. W. Ry. Co. v. Cluck, 97 Tex. 172, 77 S. W. 405, 64 L. R. A. 494, 104 Am. St. Rep. 863, 1 Ann. Cas. 261.

The common law is followed in criminal as well as in civil matters where it has not been changed by the Code. Matthews v. State, 32 Tex. 117; article 4, Penal Code 1925; article 24, Code of Criminal Procedure, 1925; article 1, R. S. 1925.

Prior to 1876 there was not found either in the Constitution or in the statute any specific provision conferring authority upon the district court to summarily dismiss a criminal case; hence it becomes necessary to ascertain whether such power existed at common law. In Cyc. vol. 12, p. 375, the common-law rule on this subject is stated to be:

"At common law, the matter of entering a nolle prosequi rests entirely within the discretion of the prosecuting officer and leave of the court is not necessary; and, by the weight of authority, this is still the rule in the absence of a statute where the entry is before the trial begins."

It is further said by the same text:

"In the absence of a statute, the court has no power to enter or direct the prosecuting officer to enter a nolle prosequi"—citing Commonwealth v. Wheeler, 2 Mass. 172; State v. Mathews, 98 Mo. 125, 10 S. W. 144, 11 S. W. 1135; State v. Hickling, 45 N. J. Law, 152; People v. Bennett, 49 N. Y. 137; People v. McLeod, 1 Hill (N. Y.) 377, 25 Wend. (N. Y.) 483, 37 Am. Dec. 328; People v. Beckwith, 2 N. Y. Cr. R. 29; State v. McLane, 31 Tex. 260.

The same rule is announced in Corpus Juris, vol. 16, p. 452, in this language:

"At common law only the attorney general could exercise the power to enter a nolle prosequi upon an indictment; and where there is no statute upon the subject, this power is still imposed in the attorney general or the several public prosecutors."

Numerous authorities are cited to support the text, and none are cited announcing a contrary doctrine.

Standard Cyclopedia of Procedure, vol. 20, p. 56, is along the same line. Discussing where the power rests to enter a nolle prosequi, it is said:

"The authority to enter a nolle prosequi rests usually in the prosecuting attorney alone; it cannot be entered by the court on its own motion unless authorized by statute; nor can a nolle prosequi be entered by others, even though they be connected with the case.

In the same text, at page 657, in discussing how the motion to dismiss must originate, it is said:

"Defendant's attorney cannot originate the motion," citing People v. Bruzzo, 24 Cal. 41; State v. Frazier, 52 La. Ann. 1305, 27 So. 799; State v. Hickling, 45 N. J. Law, 152; People v. Beckwith, 2 N. Y. Cr. R. 29.

In Wharton on Criminal Procedure (10th Ed., vol. 2, p. 177, § 1310), regarding the summary dismissal of criminal cases, it is remarked:

"A nolle prosequi is the voluntary withdrawal by the prosecuting attorney of present proceedings on a particular bill, and at common law is a prerogative vested in the executive by whom alone it can be exercised."

The rule is recognized by the Supreme Court of Massachusetts in the case of Commonwealth v. Wheeler, 2 Mass. 172, wherein it is said:

"I observe in the bar, the nolle prosequi is alleged to have been entered by the advice of the Court of Common Pleas. Certainly, the courts are not legally competent to give any advice on this subject. The power of entering a nolle prosequi is to be exercised at the discretion of the attorney who prosecutes for the government, and for its exercise he alone is responsible."

In People v. Bennett, 49 N. Y. 141, the Court of Appeals of New York, in discussing the power of the trial court to dismiss a criminal case before trial, said:

"The court has no power to nolle prosequi an indictment, except on motion of the district attorney; and the necessity of procuring the consent of court is of comparatively recent statutory regulation. (2 R. S. 728.) This restriction applies to district attorneys only; the attorney-general still having power to enter a nolle prosequi upon any indictment without the consent of the courts."

A similar rule is announced in the case of People v. Zobel, 54 Colo. 284, 130 P. 837, 838, wherein it is said:

"It was not competent for the court of its own motion, and against the protest and objection of the district attorney, to dismiss the cause and discharge the defendant. At that stage of the proceedings [before trial commenced] the district attorney was the only one who could order the proceedings discontinued."

In the case of People ex rel. Carr v. District Court, 23 Colo. 466, 48 P. 500, 501, the court, in discussing the common-law rule on this subject, says:

"It is admitted that at common law the attorney general has such power, and it seems clear from our statute that the mantle of the attorney general in this respect rests upon the several district attorneys of this state, acting in their respective districts. The statute provides that the prosecution of criminal offenses shall be conducted according to the course of the common law, except when the Criminal Code points out a different mode."

That the power sought to be exercised by the court in the proceedings in question rests exclusively with the district attorney is indicated by the opinion in the case of Gray v. District Court, 42 Colo. 298, 94 P. 287, 289, wherein it is remarked:

"The law does not vest in the district attorney power to dismiss cases subject to the approval of the court, but vests the absolute power of dismissal in that officer."

In the state of Kentucky there exists a statute with reference to the dismissal of criminal cases that is practically identical with the statute on that subject in this state. The power of the court to enter a dismissal for reasons that seem good and valid was elaborately considered by the Supreme Court of Kentucky in the case of Commonwealth v. Cundiff, ...