Merwin v. Huntington , 2 Conn. 209 ( 1817 )

Swift, Cb. J.

Whether a public prosecutor has a right to discontinue the prosecution on the payment of costs, is a point that has not been decided. It would seem, that cases might occur where this would be reasonable, and for the public good ; and in the present, case, there is nothing that shews this transaction was unfair or oppressive, on the part of.thu defendant : and as the money was regularly paid over to the treasurer of the United States, there could be no corrupt, view of private and personal advantage. At the same time, it. will be agreed, that as such power might be perverted, and become the instrument of corruption and oppression, courts should be very cautious about giving it their sanction. Rut in this case, 1 think, we are not called upon to decide this point ; for admitting it to be illegal for the defendant to receive a sum of money by way of costs, on the consideration of discontinuing a legal prosecution pending before a court, of justice, then it was equally illegal for the plaintiffs to apply to the defendant, and offer him a sum of money to do such act; for this was offering and giving him a bribe to do an unlawful act. In this view of the case, the parties arc equally criminal ; and there is no rule better settled than this, that where the parties are in pari delicto potior est con-ditiodefendentis.

f would not adv-se a new trial.

Hosmeu, J.

The opinion expressed at the circuit in this case, that if the state’s attorney was convinced his duty required him to enter a nolle prosequi, but suspended doing it until he was brought to it by the money paid, the plaintiffs had right to recover, it is unnecessary to discuss. "Whether it were correct or not, on which I express no opinion, it was favourable to the movers for a new trial.

The court directed the jury, that the money offered was the inducement for stopping the prosecution ; that both parties were in delicio ; and their verdict must be for the defendant.

The verdict necessarily implies, that the above fact was established. This presents to the court two enquiries ; was there a fault or delictum, on the part of the defendant ; and if so, were the plaintiffs equally culpable ?

The first question depends on the powers belonging to the district attorney. They are included in this expression ; “ to prosecute for the United States Stat. U.S. vol. 1. 74. To enter a nolle prosequi, is an authority unquestionably appertaining to the attorney. But, neither duty, nor the public interest requires, that he should be induced by money, to commence or abandon prosecutions. It matters not, that the sum received, after the payment of necessary expenses, was intended for the national treasury. The pecuniary interests of the United States are not committed to the district attorney. His path is distinctly marked by the general nature of the business confided to him, and the established usage of persons in that office. To prosecute, where there arc just grounds lor prosecution, and to enter a nol. pros. where the person indicted, on free and full enquiry, appears to be innocent, or proof cannot be obtained, to manifest his guilt, is his undoubted duty. In the performance of it, he has no right to judge, w hether it is best that guilt should he pardoned, or punishment mitigated.

The abuses, which might be practised under the cover of the supposed right of omitting to prosecute, on the reception of money for the national treasury, might he enormous, and strike at the foundation of criminal justice. They are too obvious to require enumeration. In the principal case, the attorney thought proper to abandon a prosecution, on the payment of costs, to which no person had any claim. The plaintiffs had never been arrested, and for aught that has appeared, were perfectly innocent of the allegations made agajnst them. B ut, costs are the consequence of some default of the party against whom they are awarded. Clinton Strong, 9 Johns. Rep, 376. On the other hand, the plaintiffs may ],ave been guilty. On this point, if there is no trial, the United States have a right to demand the. judgment of the attorney, unbiassed by improper communications, or the. reception of money, on any pretext whatever. Í am clearly of opinion, that the proceeding of the at torney was unwar ranted, and a delictum.

Were not the plaintiffs in pari delicto ? This was a fact submitted to the jury, and they have found in the affirmative. Independently of this, there can exist no doubt on the subject. If it was wrong for the district attorney to receive the money, it was equally so for the plaintiffs to pay it. There, may be a difference in the degree, but there is none in the nature of the offence.

I am of opinion, that no new trial should be granted.

Gocid, J.

Upon the general question, whether the defendant had a legal right to demand and receive the costs, paid by the plaintiffs, it is not necessary to decide. Assuming, that he had no such right, the question is, upon what principle are the plaintiffs, who have voluntarily paid them, entitled to recover them back ? I say voluntarily, because I do not understand, that actual extortion, in a sense which implies coercion, is pretended. At any rate, the facts stated show, that the payment was not, in any proper sense, compulsory. The previous proceedings were confessedly legal: and no oppressive use appears to have been made of them. The plaintiffs had not even been arrested ; and neither their persons, nor property, could he said to be in the power of the defendant: but they deliberately chose rather to pay the costs, than abide the result of atrial. Thus far, then, the maxim applies, volenti non jit injuria. Besides : the question, whether any fraud, or intentional wrong, was practised upon the plaintiffs, has been substantially submitted to the jury, and found against them.

Was the payment, then, made under any mistake, against which a court of justice can relieve ? This, as I understand the case, is not distinctly claimed; but if the claim were made, and established : the fact, that the money was received expressly for the use of the United States, and has been paid over, would be a satisfactory answer to it. But it is said, there was no consideration for the payment; or, if there was, it was an illegal one. In reply to the first of these propositions, it is sufficient to repeat, that the payment was voluntary, and that the money has been paid over. In point of fact, however, there certainly was a consideration, and one, which, according to the strictest rule, was clearly sufficient, unless, as is alleged, it was illegal — viz. the withdrawing of the prosecution, pending against the plaintiffs. And I do not perceive, how that transaction could have been illegal, except upon the supposition, that the payment of the costs, which was the inducement t:o it, was in nature of a bribe, given for the purpose of effecting a fraud upon public justice. If this is nor claimed to have been the fact, (for it is difficult to learn what, are the precise grounds of claim ;) the case requires, I think, no further answer. If it is so claimed, the plaintiffs must admit themselves to be involved in the guilt of the transar tion : and if so, the objection is decisive, in pari delicto, potior est conditio defendentis. 1 can, therefore, discover no ground, upon which the, motion can he supported.

The other Judges were of the same opinion.

New trial not to be granted.