State v. Morgan

• Decision Date: 28 June 1870
• Citation: State v. Morgan, 33 Md. 44 (Md. 1870)
• Parties: THE STATE OF MARYLAND v. JOHN T. MORGAN.
• Court: Maryland Court of Appeals

33 Md. 44

THE STATE OF MARYLAND v. JOHN T. MORGAN.

Court of Appeals of Maryland

June 28, 1870

The cause was argued before BARTOL, C.J., BRENT, MAULSBY and ALVEY, JJ.

John Ritchie, State's Attorney, and Attorney General Jones, for the plaintiff in error.

Frederick J. Nelson and William B. Nelson for the defendant in error.

Bartol C.J., delivered the opinion of the court.

It appears, by the record, that the defendant in error was indicted for a felony by the grand jury of Frederick County. A motion was made to quash the indictment, and pending the motion, on the 20th of October, 1868, there was received and filed in the Circuit Court a nolle prosequi granted by the Governor, ordering "that all further proceedings against Morgan on the indictment should cease and determine upon payment of the costs accrued upon the indictment, and that no further prosecution be had or carried on against him for or on account of the said offenses."

Whereupon the counsel for the traverser moved the court to enter a " stet" in the case for the reasons "1st, that a nolle prosequi had been granted. And 2nd, because by virtue of the nolle prosequi Morgan was absolutely discharged from said prosecution."

And the Circuit Court ordered and adjudged that the motion be granted, and that a " stet" be entered in the prosecution, and further proceedings therein be stayed.

From the action or judgment of the Circuit Court the State has brought this writ of error.

The error assigned by the Attorney-General, and for which he asks a reversal of the judgment, consists as alleged, in the Circuit Court considering the nolle prosequi as an absolute discharge of the accused from the prosecution, without the payment of the costs by him; and that as to these he became liable only to the civil or ordinary process of execution by fieri facias, etc.

The defendant in error has moved this court to quash or dismiss the writ of error for two reasons.

1st. Because the judgment or determination of the court below was not such a final and conclusive judgment as is subject to review on writ of error.

2nd. Because the point made by the Attorney-General is not presented by the record, or in other words because it does not affirmatively appear from the record that the condition precedent, upon which the nolle prosequi was made to depend, had not been performed by the payment of the costs as required.

It is well settled by the authorities that a nolle prosequi ordinarily does not operate as a pardon; but that the accused remains subject to be proceeded against by another indictment for the same offense. State v. McNiel, 3 Hawks, 183; Com. v. Wheeler, 2 Mass. 172; Com. v. Briggs, 7 Pick. 179.

And so where a stet has been entered in a criminal case, it is not ordinarily a final determination or acquittal of the party accused; but he remains liable to be proceeded...