State v. . Moody , 69 N.C. 529 ( 1873 )

Reade, J.

Suppose it were true, as the defendant offered to prove, that the Solicitor for the State promised him that if he would turn State’s evidence against his co-defendant he would not prosecute him; and suppose the defendant had, in all things, complied with his agreement, and the Solicitor had nevertheless refused to discharge him, and the defendant left the Court, and the Solicitor called him out, and had judgment entered against him and his sureties upon his recognizance. The defendant could not plead the promise of the Solicitor in bar or in discharge pf the judgment, because that is matter of record, and the discharge must be of record or of equal solemnity. But if it could be so pleaded, still the defendant would have to show that he did in all things comply with his agreement. And here the agreement must be understood to have been that he would become a witness for the State and testify upon the trial, as well as before the grand jury. But all that he alleges was that the did testify before the grand jury, and then, understanding that a bill had been found against him about another matter, he left the Court to avoid that indictment, and did not appear as a witness upon the trial. So that it would seem he did not comply with his agreement, and for that reason it could not avail him for any purpose. His Honor held that while the alleged agreement could not -operate to discharge the defendant, yet he could consider it as an excuse or in mitigation; and so considering it, he was of the opinion that there was nothing in the conduct of the defendant which would induce his Honor, in the exercise of his discretion, to remit the forfeiture, or any part of it. .And in this we cannot say that his Honor erred.

It was discussed at the bar whether it is within the power of a Solicitor to discharge a defendant, or to enter a nol. pros., &c., or whether that is the province of the Court. The rule is that it is within the control of the Court, but it is usually and properly left to the discretion of the Solicitor. It is scarcely to be supposed that a Solicitor would abuse this confidence to the prejudice of a defendant, and it is .always within-the power of a defendant to protect himself by having his discharge entered of record at the time of the .agreement. And it would be a dangerous practice to allow defendants to have themselves discharged upon allegation ■of some out door agreement.

The reason which his Honor gave for his judgment, and whether he heard the evidence offered, even to enlighten his discretion, is not very clearly stated. If, however, we have misunderstood his Honor, no irreparable injury need result to the defendant, as he can move the matter again before his Honor at the next, or even at any subsequent, term before the money is paid.

There is no error. This will be certified, &c.

Per Curiam. Order affirmed.