151 Mass. 488 | Mass. | 1890
It is obvious that the defendant was put in peril by his trial in the district court, and while that peril continued, that is, during the trial in that court, it may be assumed that the refusal to prosecute further would have amounted to an acquittal. Commonwealth v. McCormick, 130 Mass. 61. Commonwealth v. Hart, 149 Mass. 7. But the defendant by his appeal from the judgment of the district court has availed himself of his right to have the trial in that court go for nothing, and to be tried anew in the Superior Court. By availing himself of this right, he placed himself in the sarde position as if he had not been tried at all, so far at least as respects the question now before us. The former judgment was set aside and vacated; he was discharged and free from the peril in which he formerly stood, and as one consequence the district attorney might enter a nolle prosequi with the same effect as if there had been no previous trial, and the general rule was applicable, that a nolle prosequi may be entered without the defendant’s consent before the jury are impanelled. Commonwealth v. Scott, 121 Mass. 33. The case of Commonwealth v. Smith, 98 Mass. 10, is analogous, where it was. held that, after the verdict of guilty on an indictment had been set aside on a motion for a new trial, and before further proceedings in the case, the district attorney might enter a nolle prosequi against the objection of the defendant.
It is plain that the effect of entering a nolle prosequi under such circumstances is not to acquit the defendant of the offence, so as to bar a new prosecution for it. Bacon v. Towne, 4 Cush.
_Exceptions sustained.