Berks County v. Pile

| Pa. | Jun 24, 1852

The opinion of the Court was delivered, by

Black, C. J.

An indictment for conspiracy was pending in the Quarter Sessions of Berks, on which a verdict of guilty had been rendered by a traverse jury, and a new trial granted by the Court. The prosecutor and the defendants agreed to settle if the county w'ould pay the costs. It is alleged that the Commissioners agreed to this, and a nolle prosequi was entered accordingly. The present action is against the county on the Commissioners’ promise.

As the law stood previously to 1791, an innocent person acquitted of a crime could not be released from his recognisance or delivered from prison, until he paid the costs incurred by the prosecutor in his effort to maintain the false accusation. To remedy this injustice it was enacted {Dunlop 186), that in all cases where the bill was returned ignoramus, the costs should be paid out of the county stock. But this being found to encourage trifling, unfounded, and malicious prosecutions at the expense of the public, the Act of 1804 {Dunl. 231), was passed, which changed the whole system and made it what it now is. By this Act the county can be made liable for costs on an indictment for an offence below felony only in one of three ways. 1. By the finding of the grand jury that the county shall pay the costs when the bill is returned ignoramus ; 2. By a similar finding of the traverse jury when the defendant is acquitted upon trial; and 3. By the discharge according to law of a convict, who is sentenced to pay the costs and does not. The county is never chargeable with costs in any case which is not strictly and literally within one or the other of these categories (5 Ser. & R. 199; 3 Penn. Rep. 365; 7 Watts 485). It is not possible so to construe the statute as to make a nolle prosequi, whether with or without the consent of the Court, equivalent to a verdict against the county (12 Ser. & R. 94). By the common law the public pays no costs. As the liability is created by statute, it cannot be extended beyond the limit assigned to it by the legislature.

In the case of an acquittal, nothing but the verdict of a jury can bind the county for costs. All jurisdiction is withheld from every other functionary. The Commissioners have no more control of the question than the sheriff or prothonotary. The law has wisely left the decision to be made by a tribunal which hears the evidence and understands the justice of the case. To transfer it from the Courthouse to the Commissioners’ office would be very impolitic. If it were so transferred, the parties, when they would tire of the strife or become frightened with the prospect, might unite their influence and easily induce a board of commissioners, ignorant both of the law and the facts, to impose on the county expenses which ought to be borne by those who created them. The Commissioners, in supposing that the interests of the county were not safe in the hands of a jury, were probably mistaken. It is not usual for juries to put costs on the county, except in a clear case of innocence on the part of the defendant, and proper motives on the part of the prosecutor. In such a case the public ought to bear the burden; and an interference by the Commissioners to prevent the jury from so deciding, would be both unjust and unauthorized. Besides, the nolle prosequi was no termination of the case. The indictment might be called up again at the will of either party, and thus the county be in as much danger as ever of a verdict against it. The county indeed could make nothing by such an arrangement. But even if it could, this was not a question of financial policy, but of public justice, with which nobody had a right to meddle but those to whom the law and the constitution had intrusted its administration. Such an agreement cannot be enforced for yet another reason. A nolle prosequi is expressly forbidden by the Act of 29th March, 1819 (Dunl. 347), in all but certain excepted cases, of which' conspiracy is not one. It was therefore a contract to pay the parties out of the public treasury for violating a positive statute, and turning the criminal law of the country aside from its due and proper course.

There are also objections to this record of another kind. Though it professes to be a case stated in the nature of a special verdict, the fundamental fact is not found. The evidence of the contract is furnished to us in a raw state, and so doubtful that what one party affirms to be proved by it, the other as stoutly denies. Perhaps a jury might infer an agreement from it, but a Court cannot. In a case stated, whatever is not distinctly and expressly agreed upon and set forth as admitted, must be taken not to exist. It is not even settled what judgment shall be given if the law is with the plaintiffs, nor is any rule or principle agreed upon by which the amount shall be liquidated. The case is therefore not only destitute of merits, but out of all technical shape.

Judgment reversed and judgment in favor of the defendant below.