Commonwealth v. St. John , 173 Mass. 566 ( 1899 )

Morton, J.

The decisive question in each case is the same, and the cases may therefore properly be considered together. The question is whether the immunity that was promised to the defendants by the city marshal and by Boyle, the chief detective of the police department of Springfield, can be pleaded in bar of the indictment against them. We think that it cannot. The immunity and protection which may be promised from the consequences of crime on condition of a full disclosure and readiness to testify are not a matter of right, but rest in the last resort on the sound judicial discretion of the court having final jurisdiction to sentence, and cannot therefore be pleaded in bar. Wight v. Rindskopf, 43 Wis. 344. State v. Moody, 69 N. C. 529. State v. Graham, 12 Vroom, 15. Rex v. Rudd, Cowp. 331. Whart. Grim. Ev. §§ 439, 443. 3 Russ. Crimes, (9th Am. ed.) 599.

When such promises are made by the public prosecutor or with his authority, the court will see that due regard is paid to them, and that the public faith which has been pledged by him is duly kept. The prosecuting officer has also the power to enter a nolle prosequi. It appears in each case that neither the city marshal nor Boyle had any authority from the District Attorney to make the promises or hold out the inducements which they did. There is nothing in either bill of exceptions tending to show that the District Attorney had anything to do with the prosecution in the police court. Neither of the defendants appeared before the grand jury, although they were at the court-house from day to day when the grand jury was in session, ready to testify, relying on the promises of immunity made by the city marshal and by Boyle. And there is nothing tending to show that there was any expectation or understanding on the part of the District Attorney that either was to testify as a government witness in the Superior Court, and neither did so testify. If an appeal had been made to the clemency of the court, it would no doubt have been competent for the court to take into consideration the inducements which had been held out and the promises that had been made, if any, by the city marshal and by Boyle. But what was done was to plead the promises and inducements in bar. A question of law was thus presented, and we think that the ruling of the court was clearly right. Exceptions overruled.