Christmas v. State

McCay, Judge.

Under the facts stated in the judge’s certificate, ¿to-wit: that on this application being made, the solicitor general replied that he was about to present another bill, and that he expected to prove the two “no bills” had been procured by the fraud of the defendant, we think it was eminently proper in the judge to refuse the order asked for. But we do not think the order was a proper one had there been no such statement by the solicitor general. The Code does not contemplate that two “no bills” shall entitle the person charged to a judgment of acquittal, or to a discharge from the crime. It simply provides that they “shall be a bar to another indictment, unless they have been procured by the fraudulent conduct of the person charged, on proof of which or of newly discovered evidence, the judge may allow a third bill to be presented, found and prosecuted:” Code, 4708. This is a very different thing from an acquittal or final discharge by a judgment of the court. The two returns of no bill are on the minutes; they stand there for what they are worth, and whatever may be their legal effect they need no new order or judgment of the court’. Perhaps on two such returns a prisoner might be discharged from arrest; but the order sought here is for more than that, and would, perhaps, if granted, bar the third indictment, even onder the conditions provided for.

Judgment affirmed.