State v. Morgan , 33 Md. 44 ( 1870 )

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 day 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 hini for or on account of the said offences.”

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 2d, 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 ho 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, &c.

The defendant in eri’or has moved this Court to quash or dismiss the wxfit of error for two reasons.

1st. Because the judgment or determination of the Court below was ixot such a final and conclusive jxidgment as is subject to review on writ of error.

2d. Because the point xxxade by the Attorney General is not px’csented 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 beeix performed by the payment of the costs as required.

It is well settled by the authoxities that a nolle prosequi ordinax’ily does ixot operate as a pax’don; but that the accused remains subject to be proceeded against by another indictment for the same offence. State vs. McNiel, 3 Hawks, 183; Com. vs. Wheeler, 2 Mass., 172; Com. vs. Briggs, 7 Pick, 179.

And so, where a stet has been entered in a crirninal case, it is not ordinax-ily a final determination or acquittal of the party accused; but he remains liable to be proceeded against under the same indictment.

In this case however by the terms of the nolle prosequi, when it becomes effective, the' accused is expressly saved fx’om 'all further prosecution for or on account of the same offence. His discharge tlxex-efore was a final end and deterxnination of the suit, and in such a final judgxnent as may be reviewed orx writ of ei'ror.

. But in oxxr opinion there is no error in the actioxx of the Court below disclosed by the record.

There is no doubt of the soundness of the position maintaixxed by the Attorney General that by the terxxxs of the nolle prosequi, the payment of costs by the party accused is a condition precedent, without which he is not entitled to bo discharged.

(Decided 28th June, 1870.)

Until that condition is performed the party cannot lawfully claim the benefit of the nolle prosequi, and it would be error in the Court to give effect to the writ, and allow the slet to be entered, or the party to be discharged until they are satisfied the costs have been paid.

By the express provision of the Code, Art. 42, sec. 11, the Governor is prohibited from granting a nolle prosequi except “ on condition that the costs of the prosecution shall be paid by the person applying for the same.” In the present case the Governor acted in strict conformity with the law, and the party accused was not entitled to claim the benefit of the writ until lie had first paid the costs of the prosecution. Until that condition was performed the nolle prosequi was inoperative.

The record does not state affirmatively that the costs were not paid by him. It does not appear that any objection was made in the Circuit Court to discharge the party because the costs were not paid, nor does it appear that any such question was raised in that Court. The record is silent as to the matter of costs, and merely shows that the Court directed the “ stet” to be entered, and ordered the party to be discharged. Now the presumption is that- the Court discharged its duty, and in the absence of any express statement in the record to the contrary, it must be intended that the condition precedent was performed by the defendant in error.

Judgment affirmed.