Commonwealth v. Shields , 1926 Pa. Super. LEXIS 48 ( 1926 )

Argued November 8, 1926. We are obliged to quash this appeal because it was taken before a nolle prosequi had actually been entered, and hence was premature. The order of the lower court contained a direction to enter a nolle prosequi in the event that certain things were done, but the record fails to show that it was ever actually entered.

To avoid further and unnecessary controversy, however, we deem it proper to say that the right of the court to enter a nolle prosequi against the protest of the district attorney, was denied by this court in Com. v. Reed, 65 Pa. Super. 91, a case apparently not called to the lower court's attention, as it was not on the appellant's brief.

We pointed out, in that case, speaking through our present President Judge, that a nolle prosequi is the voluntary withdrawal by the attorney general or the district attorney of further proceedings against a defendant upon a particular bill; that it is not the act of the court but of the Commonwealth's attorney, that is, the attorney general or the district attorney. While the Act of March 31, 1860 P.L. 427, sec. 29, provides that no district attorney shall enter a nolle prosequi in any criminal case without the assent of the proper court in writing first had and obtained, it does not invest the court with the functions of the district attorney in that respect, or authorize the entry of a nolle prosequi against his protest; the act must still be the voluntary act of the district attorney, but may not be entered without the consent of the court.

The agreement of the district attorney, of June 5, 1924, to enter a nolle prosequi against all of the defendants, provided certain conditions were complied with, was repudiated by him on failure of the defendants to carry out such agreement. In doing so he was wholly within his rights. His act in moving the entry of the nolle prosequi must be voluntary. It cannot be forced by the court. There is no doubt of his right to enter a nolle prosequi, with the consent of the court, against one or more defendants leaving the indictment in force against the remaining defendants: Hester v. Com., 85 Pa. 139; Com. v. Casey, 14 Pa. Co. Ct. Rp. 389 (RICE, P.J.).

The lower court evidently regretted having, in the circumstances of this case, consented to the entry of a nolle prosequi as to two of the defendants, and felt that it should have been entered as to all or none. It can, on the trial, see that the appellees suffer no injustice; but a nolle prosequi cannot be entered except on motion of the district attorney or attorney general.

The appeal is quashed.