State v. Morgan

Bartol, C. J., delivered the opinion of the Court. It appears, by the record, that the defendant in error was indicted for a felony by the grand jury of Frederick County. A motion was made to quash the indictment, and pending the motion, on the 20th day of October, 1868, there was received and filed in the Circuit Court a nolle prosequi granted by the Governor, ordering “ that all further proceedings against Morgan on the indictment should cease and determine upon payment of the costs accrued upon the indictment, and that no further prosecution be had or carried on against hini for or on account of the said offences.” Whereupon the counsel for the traverser moved the Court to enter a “stet” in the case for the reasons: “ 1st, that a nolle prosequi had been granted. And 2d, because by virtue of the nolle prosequi Morgan was absolutely discharged from said prosecution.” And the Circuit Court ordered and adjudged that the motion be granted, and that a “stet” be entered in the prosecution, and further proceedings therein be stayed.

From the action or judgment of the Circuit Court the State has brought this writ of error. The error assigned by the Attorney General, and for which ho asks a reversal of the judgment, consists as alleged, in the Circuit Court considering the nolle prosequi as an absolute ⁴⁶ discharge of the accused from the prosecution, without the payment of the costs by him; and that as to these he became liable only to the civil or ordinary process of execution by fieri facias, &c. The defendant in eri’or has moved this Court to quash or dismiss the wxfit of error for two reasons. 1st. Because the judgment or determination of the Court below was ixot such a final and conclusive jxidgment as is subject to review on writ of error. 2d.

Because the point xxxade by the Attorney General is not px’csented by the record, or in other words because it does not affirmatively appear from the record that the condition precedent, upon which the nolle prosequi was made to depend, had not beeix performed by the payment of the costs as required. It is well settled by the authoxities that a nolle prosequi ordinax’ily does ixot operate as a pax’don; but that the accused remains subject to be proceeded against by another indictment for the same offence. State vs. McNiel, 3 Hawks, 183 ; Com. vs. Wheeler, 2 Mass., 172 ; Com. vs. Briggs,