State v. Ridge ( 1977 )

Gregory, Justice.

This case concerns the dismissal of two indictments with prejudice over the objection of the solicitor. The State appeals. We find the trial judge erred, and reverse.

Respondent was charged by the Richland County Grand Jury in two indictments with possession and sale of drugs. Trial was scheduled in the Court of General Sessions for Richland County and was postponed twice by the Solocitor’s Office, once by respondent and once by agreement of the parties. Finally, an assistant solicitor scheduled the case for the morning of July 26, 1976.

On that morning respondent’s counsel (“counsel”) appeared with respondent and witnesses. The solicitor was also present. What then occurred is not altogether clear from the record. Apparently the solicitor had set only one indictment for trial. Counsel therefore made a motion in chambers for the indictments to be consolidated, as they involved similar incidents and the same witnesses. It is inferable that the judge granted this motion.

In any event, before the trial started (the jurors had not yet been drawn) the solicitor told counsel he would not try the case because one of the State’s important witnesses was on vacation. In open court the solicitor, counsel and the judge conferred. Counsel moved to dismiss the case for lack of prosecution. No motion for dismissal on the ground of denial of a speedy trial was ever made. The judge ordered the solicitor to try the case or dismiss it, whereupon the solicitor offered to enter a nolle prosequi on one indictment, which he said was the only one he had “called” (set) for trial. The judge rejected his offer and dismissed both indictments with prejudice.

Later in the day the solicitor stated for the record that he had not, that morning, “called” either indictment for trial.

Appellant argues essentially that the trial judge improperly interfered with the solicitor’s control over the case.

“[T]he solicitor has authority to call cases in such order and in such manner as will facilitate the efficient administration of his official duties, subject to the overall broad supervision of the trial judge.” State v. Mikell, 257 S. C. 315, 322, 185 S. E. (2d) 814, 816-17 (1971). The supervision of the judge does not extend to or justify the dismissals here.

In this State, the entering of a nolle prosequi at any time before the jury is impaneled and sworn is within the discretion of the solicitor; the trial judge may not direct or prevent a nol pros at that time. State v. Charles, 183 S. C. 188, 190 S. E. 466 (1937). The only exception to this rule is when the judge finds the solicitor has acted corruptly. State v. Charles, supra. Other jurisdictions have expanded this exception somewhat, to include “capricious and vexatiously repetitious” exercise of the right to nol pros. See District of Columbia v. Dixon, 230 A. (2d) 481 (D. C. App. 1967); State ex rel. Bokowsky v. Rudman, 111 N. H. 57, 274 A. (2d) 785 (1971).

We find neither corrupt nor capricious exercise of the right to nol pros in this case. Furthermore, it \ does not appear that the solicitor was harassing respondent with repeated delays of the case. The trial judge might have correctly concluded that the solicitor was derelict in his duty of marshalling his witnesses; from the record we cannot say. But regardless, the judge erred in refusing to allow the solicitor to enter the nol pros, because he did not find the solicitor was acting corruptly or capriciously. Thus we find the lower court erred in refusing to allow the solicitor to nol pros the indictment he attempted to.

There remains the question of the second indictment. In In re Brittian, 263 S. C. 363, 366, 210 S. E. (2d) 600, 601 (1974), this Court quoted with approval 21 Am. Jur. (2d) Criminal Law, § 517 (1965) :

“A statute may authorize the court, either of its own motion or on the application of the prosecuting officer, to order an indictment or prosecution dismissed. But in the absence of such a statute, a court has no power ... to dismiss a criminal prosecution except at the instance of the prosecutor. . . .” We adhere to'this statement and apply it to the present case.

Accordingly, the order dismissing both indictments is

Reversed.

Lewis, C. J. and Littlejohn, J., concur. Ness and Rhodes, JJ., dissent.