149 Mass. 7 | Mass. | 1889
To a complaint brought before a police court for a misdemeanor, the defendant pleaded in bar a former acquittal by the same court on a complaint for the same offence. The defendant pleaded not guilty to the former complaint, and was put upon his trial thereon, and evidence heard against him,
In general a person put upon trial for a crime is thereby put in jeopardy, and cannot be again tried for the same offence. Of the exceptions to this rule it is necessary to refer only to the one upon which the Commonwealth relies, — when a prosecution is terminated during the progress of a trial by the entry of a nolle prosequi by the Commonwealth’s attorney, with the consent of the defendant. The general right of a defendant on trial to insist upon a determination of the trial which will bar another prosecution is admitted; but it is claimed that the attorney for the Commonwealth has a right to enter a nolle prosequi during a trial, and leave with the defendant his right to a verdict; and that if the defendant does not insist upon that right, but accepts his discharge without a verdict, there will be no bar to another prosecution. It would seem that after the termination of a prosecution there would be nothing before the court upon which a verdict could be rendered, and that the court could do nothing except to discharge the defendant. The true rule would seem to be, that, after a trial has commenced, the Commonwealth’s attorney, though he has the power, has not the right, to terminate the prosecution without a verdict; and his refusal of record to further prosecute the indictment has the effect of and amounts to an acquittal of the defendant, unless it is done with his consent. Commonwealth, v. Roby, 12 Pick. 496. Commonwealth v. Tuck, 20 Pick. 356. Commonwealth v. Scott, 121 Mass. 33. Commonwealth v. McCormick, 130 Mass. 61.
But whatever the rule may be in regard to the discontinuance of a prosecution by the authorized attorney for the Commonwealth, we do not think that it applies to the case at bar. No nolle prosequi was entered'in this case. Only an attorney authorized by the Commonwealth to represent it has authority to declare that he will not further prosecute a case in behalf of the Commonwealth. A court is not a prosecuting officer, and does not act as the attorney for the Commonwealth. Its office is judicial, — to hear and determine between the Commonwealth arid the defendant. The fact that no authorized attorney for the Commonwealth is before the court does not give to it the
The formal record shows that the defendant was put on trial and was discharged. This is a record of acquittal. Sayles v. Briggs, 4 Met. 421. We think it has the same effect whether the statement that the “court nolpros'd” the complaint is rejected, or is construed to mean that the court dismissed the complaint without completing the trial. When the defendant was put on trial he was put in jeopardy. If there were facts, analogous to those that frequently exist in jury trials, which showed, that there could not be a valid trial, as that the judge was interested, or in any way incapacitated from going on with the trial,.or if the defendant consented that there should be another trial upon another complaint, such facts should appear. All that appears is that the judge, after the trial was commenced and partly concluded, decided to try the defendant again upon another complaint, and discharged him. We think this was properly pleaded as an acquittal.
Exceptions sustained.