130 N.E.2d 855 | Ohio Ct. App. | 1955
This is an action in habeas corpus, originating in this court. The facts have been stipulated. *89
The petitioner was indicted for forgery by the Grand Jury of Franklin County. On February 2, 1954, after arraignment and the entering of a plea of not guilty, an order was made as follows:
"This day upon application of the prosecuting attorney and for good cause shown, it is ordered by the court that nolle prosequi be entered in this indictment."
Upon the face of the record, it appears that this order was legally and properly entered under the provisions of Section
"The prosecuting attorney shall not enter a nolle prosequi in any cause without leave of the court, on good cause shown, in open court. A nolle prosequi entered contrary to this section is invalid."
In a subsequent term, to wit, on December 28, 1954, an order vacating the former order was entered, which order states as follows:
"It appearing to this court that the nolle prosequi entered by this court was entered contrary to statute R. C.
The petitioner was rearrested and is now in custody.
It does not appear from the record that a motion or petition was filed requesting the vacation of a former order; neither does the record show that notice was given or summons issued to the adverse party, or that an appearance was made. Ordinarily, in the absence of proof to the contrary, we would be required to indulge the presumption of the regularity and validity of the order, but for defects apparent upon the face of the record the presumption of validity does not obtain.
It has been held that in a criminal case the court has no power or authority to vacate its order after term except in the manner prescribed by statute. In re Robinson,
We come now to discuss the contention of counsel for petitioner which we consider to be more important and determinative of the issue presented, to wit, after entering thenolle prosequi order as provided by statute, the court lacked jurisdiction to make an order at a subsequent term reinstating the original indictment and prosecution under it. Counsel for respondent contend that the court may vacate a nolle prosequi
after term, citing in support thereof 22 Corpus Juris Secundum, 711, Section 463; Commonwealth v. McLaughlin,
"The general rule is that where in a criminal proceeding the prosecuting attorney causes the entrance of an unconditional nolle prosequi or dismissal of the indictment or information, the proceeding is terminated, and the same indictment or information cannot be reinstated at a subsequent term and prosecution thereon resumed."
The authorities clearly hold that during term the court may set aside its order of nolle prosequi and reinstate the indictment, but after term the overwhelming weight of authority is that a new indictment must be brought in order to prosecute the offender for the same offense. We have examined numerous cases cited in 22 Corpus Juris Secundum, 704, Section 456, and in the supplements, together with all the cases cited in 112 A.L.R., 386, and the supplements, and we are constrained to apply the rule of law pronounced in those cases to the issue presented here. Among the cases following the majority view are:People v. Watson,
While the issue presented is one of first impression in Ohio, our Supreme Court, in Douglas v. Allen,
"Considering the question on principle, it would seem that the reason of the rule requiring the termination of the prosecution before the commencement of the action, is as well satisfied where the prosecution is ended by a nolle prosequi, followed by the discharge of the accused, as it is by his acquittal of the *92 charge. The prosecution being so ended, there can thereafter be no conviction of the accused in that proceeding, and therefore no opportunity to establish in that proceeding the existence of probable cause for the prosecution. True, a nolle may be entered at a time when it will not preclude another prosecution for the same offense; but the institution of another prosecution requires a new complaint or indictment, and it becomes a new proceeding. The former one, after the discharge of the defendant therefrom, cannot be reinstated or revived and proceeded with; or if it could be, unless that is done within the proper time, the prosecution would nevertheless be ended."
In that case the accused brought an action for malicious prosecution. The question presented was whether the prosecution had terminated. The court held that the prosecution had legally terminated, and that the suit could be maintained.
While this court, in the application of the majority rule to the issue here presented, is required to rule that the petitioner cannot be held to answer the charge under the original indictment, we must observe that the authorities following the majority view hold that after a nolle prosequi has been entered, at a subsequent term the offender in a proper case may be prosecuted under a new indictment.
Petitioner ordered discharged from custody.
Petitioner discharged from custody.
WISEMAN, P. J., MILLER and HORNBECK, JJ., concur. *93