23 N.J.L. 143 | N.J. | 1851
The defendant, to an indictment for an assault and battery, pleaded that a previous indictment, found against him for the same offence, not having been tried at the term or session in which issue was joined, or the term after, it was ordered by the court that the defendant be, and he was thereby discharged. To this plea there is a general demurrer on the part of the state.
This demurrer presents for consideration the true construction of the first section of the “ act relative to indictments,” Rev. Stat. 292. That section provides “that every indictment shall be tried the term or session in which issue is joined, or the term after, unless the court, for just cause, shall allow further time for the trial thereof; and if such indictment be not so tried, as aforesaid, the defendant shall be discharged.” To sustain the plea the construction given to the act must be, that the defendant is discharged not only from imprisonment and from his recognisance, but also from further prosecution of the indictment and from the penalty of the crime itself. The term “ discharge,” in its proper signification, may import either of these meanings. It may mean a discharge from .imprisonment without trial, a discharge from the further prosecution of the indictment, or a discharge from the legal penalty of the crime. The section itself throw's no light upou the true intent of the law makers. We must look elsewhere to discover it.
The earliest legislation in New Jersey upon this subject was an act for preventing malicious prosecutions by informations, passed March 11, 1713-14, (Allinson’s Laws 23). The four
The next aet of legislation is “an act for preventing malicious prosecutions on indictments and other suits of the crown, and rectifying sundry abuses in the proceedings thereon, passed February 10, 1727 — 8, (Allinson’s Laws 73.) It appears, by the preamble, that the indictments and other suits had been maliciously preferred and carried on against people altogether innocent, who on trial by the country had been fairly acquitted,
Before considering the provisions of this act, it may be material to advert to another enactment upon the same subject, contained in the seventh section of the “ act for preventing the injury of illegal confinement, and better securing the liberty of the people.” This act, usually denominated the “ habeas corpus act,” though passed by the British parliament in the 31st year of Gar. II, A. D. 1679, was not enacted in this state until March 11, 1795, after the revolution. Paterson 168. By the seventh section, which is substantially the same in both acts, it is enacted, that if any person, committed for certain specified offences plainly expressed in the warrant of commitment, upon his petition in open court the first week of the term or the first day of the sessions of Oyer and Terminer or general jail delivery, to be brought to trial, shall not be indict
So stood the law on the 2d of February, 1799, when the act relative to indictments, now under consideration, was passed. The first section provides that every indictment shall be tried the term in which issue is joined, or the term after, or that the defendant shall be discharged. It embodies the provisions both of the habeas corpus act and the act of 1713-14. It extends the provisions of the habeas corpus aet to every indictment, as well for misdemeanors as for felonies. It requires the discharge of the defendant, whether he petition to be tried or not. The second, third, and fourth sections of the act contain, in a somewhat modified form, the provisions of the aet of
This conclusion will be found supported by a view of the legislation of our sister states. In Pennsylvania and North Carolina the provisions of the seventh section of the habeas corpus act (31 Car. II.) have been substantially adopted, and appear to be the only legislative provisions of those states to secure a speedy trial in criminal cases. Dunlop’s Laws 142 (2d ed.), act of 1785, § 3; 1 Rev. Stat. (N. Car. 1837,) 316, § 9.
In New York, Maine, Massachusetts, and Ohio, their enactments, extend only to discharging the prisoner from confinement or from his recognizance for want of prosecution of the indictment. 2 Rev. Stat. N. Y. 3d ed., 821, § 28, 29, 30; Rev. Stat. (Maine) 1841, 748, § 14, 15 ; Rev. Stat. (Mass.) 1836, 762, § 13; Rev. Stat. (Ohio) 1841, 726, § 13.
In Georgia, a more stringent provision is made for the protection of the prisoner. By the law of that state, it is enacted that “ any person against whom an indictment is found for any offence not affecting life may demand a trial at the term when the indictment is found, or at the next succeeding term thereafter, which demand shall be placed on the minutes of the court; and if such person shall not be tried at the term when the demand is made, or at the next succeeding term thereafter, provided that at both terms there were jurors empanneled and qualified to try such prisoner, then he or she shall be’ absolutely discharged and acquitted of the offence charged in the indictment. Hotchkiss’ Stat. Laws of Georgia (1845) 791, § 64.
It is unnecessary now to decide a point which was mooted at the bar upon the argument, viz. whether a defendant thus discharged can afterwards be tried upon the same indictment, admitting it to stand in full force. There is certainly serious embarrassment in the way of such a proceeding. The spirit of the law, which requires that the defendant should be discharged, forbids that he should be at once again arrested and imprisoned or held to bail. If this may be done, the law is a nullity ; and if it may not be done, how is the defendant ever to be placed upon trial, except by his voluntary consent? "Admitting, however, that the discharge operates as an effectual bar to a further prosecution of that indictment, may it be pleaded as a bar to another indictment for the same offence?
The books furnish us no precedent of a similar pica. The sentiment of the profession, for many years, is believed to have been adverse to the validity of the defence; and although we have no reported adjudication, we have undoubted assurance that the opinion of that most accurate common law lawyer, Chief Justice Kirkpatrick, was against it.
But upon principle the plea cannot be valid. The utmost effect that can be attributed to the discharge, is that of an abandonment of the prosecution. It cannot be higher or greater than that of a nolle prosequi, which is an open and direct renunciation of the further prosecution of the indictment.
But it is well settled, that although the effect of a nolle prosequi is to put the defendant “ without day,” it does not at all operate ds an acquittal, nor can it be pleaded as such. It is simply a discharge of the particular indictment upon which it is entered, and is no bar to future indictments for the same offence. Goddard v. Smith, 1 Salk. 21; S. C. 2 Salk. 456;
The plea is therefore invalid, and the demurrer must be sustained.
Nevitjs and Ogden, Justices, concurred.