Ward v. State

Eldridge, J., delivered the opinion of the Court. In this criminal case, two different counts of the indictment charged the same offense. At the trial after jeopardy had attached, the State entered a nolle prosequi, without the defendant’s consent, as to one of the counts, and the defendant was convicted on the other count. Later, the defendant was successful in having the conviction set aside and a new trial awarded.

The issue before us now is whether the new trial may proceed in light of the earlier nolle pros of a count charging the same offense. I. A Prince George’s County grand jury, in a five count indictment, charged the defendant James Edward Ward with various offenses relating to the 1972 murder of Gerald Joseph Godbout, Jr., and the attempted murder of Dorothy Mae Ward. Count one charged the defendant with conspiracy to murder Dorothy Mae Ward; count two accused him of conspiracy to murder Godbout; count three expressly ⁷⁹ charged him with being an accessory before the fact to the murder of Godbout; and the fourth count alleged that he attempted to murder Dorothy Mae Ward. Count five, charging the defendant with responsibility for the murder of Godbout, was the statutory form of indictment set forth in Maryland Code (1957,1971 Repl.

Vol.), Art. 27, § 616, which encompasses murder, manslaughter or "being an accessory thereto.” 1 Consequently, the fifth count included a charge which was identical to the charge in the third count, namely being an accessory before the fact to the murder of Godbout. See State v. Williamson, 282 Md. 100, 107-110 , 382 A.2d 588 (1978). The defendant Ward was brought to trial in the Circuit Court for Prince George’s County on all five counts, and the jury was empanelled and sworn. Therefore, jeopardy attached to all offenses covered by the indictment.

Crist v. Bretz, 437 U.S. 28 , 98 S. Ct. 2156 , 57 L. Ed. 2d 24 (1978); Blondes v. State, 273 Md. 435, 444-446 , 330 A.2d 169 (1975). At the close of the State’s case, a nolle prosequi was entered by the prosecuting attorney, without the defendant’s consent, with regard to counts four and five in their entirety The trial continued, and the jury found the defendant guilty on counts one, two and three. The court imposed a life sentence on each count, all three sentences to run concurrently, and the judgment was affirmed on appeal, Ward v. State, 30 Md. App. 113 , 351 A.2d 452 , cert. denied, 277 Md. 742 (1976). Thereafter, the defendant filed a petition for relief under the Post Conviction Procedure Act, Code (1957, 1976 Repl.

Vol.), Art. 27, § 645A et seq. The circuit court in the post conviction proceeding held that Ward had been denied the effective assistance of counsel with respect to counts one and two, the conspiracy counts, because of counsel’s failure to plead limitations, and these counts were dismissed. The circuit court granted a new trial on the third count, apparently on the theory that certain evidence introduced solely to ⁸⁰ prove conspiracy may have affected the jury’s verdict on count three. The circuit court’s decision was affirmed by the Court of Special Appeals in an unreported opinion.

Prior to his new trial on count three, the only remaining count, Ward filed three motions to dismiss, each on a separate ground. One motion asserted that the third count was defective under the common law doctrine of accessoryship; another claimed a denial of the right to speedy trial; and in the third motion Ward argued that a second trial would violate the prohibition against double jeopardy. The double jeopardy theory was that the nolle prosequi of count five at the first trial, after the attachment of jeopardy and without the defendant’s consent, amounted to an acquittal of all offenses charged in the fifth count, including the accessory charge. Therefore, the argument continued, a second trial on the same accessory charge, under the third count, would violate the double jeopardy prohibition against a trial for the same offense following an acquittal.

The circuit court agreed with Ward that count three was invalid under the doctrine of accessoryship and dismissed the indictment on this ground. 2 The trial court did not rule upon the motions to dismiss on speedy trial and double jeopardy grounds. The State appealed the dismissal of the indictment, and this Court issued a writ of certiorari prior to any proceedings in the Court of Special Appeals. In this Court, in addition to defending the trial court’s action, Ward contended that the indictment should have been dismissed on double jeopardy grounds. We reversed, holding that a trial under count three, for allegedly being an accessory before the fact to second degree murder, was not precluded by the doctrine of accessoryship.

State v. Ward, 284 Md. 189 , 396 A.2d 1041 (1978). 3 Because the trial court had not ⁸¹ decided the double jeopardy contention, we declined under Maryland Rule 885 to decide the question. After the remand, and before the commencement of the second trial on count three, a hearing was held on the remaining motions to dismiss on speedy trial and double jeopardy grounds. The trial court denied both motions, and the defendant took an immediate appeal from the denial of the double jeopardy claim. 4 Again, before any proceedings in the Court of Special Appeals, we issued a writ of certiorari. We shall affirm.

II

The defendant initially relies upon the "well settle[d]” principle that the entry of a nolle prosequi, after jeopardy has attached, has the "effect” of an acquittal. Consequently, in the defendant’s view, because count five charged him with being an accessory before the fact to the murder of Godbout, and because the nolle pros of count five "operated” as an acquittal, a second trial for the same offense is absolutely precluded. Under this theory, a retrial would violate that aspect of the double jeopardy prohibition based upon the common law plea of autrefois acquit. See Pugh v. State, 271 ⁸² Md. 701, 705, 319 A.2d 542 (1974); State v. Shields, 49 Md. 301, 303 (1878). 5 If a nolle prosequi after the attachment of jeopardy, without the defendant’s consent, were unqualifiedly an acquittal of the offense charged, regardless of the fact that the nolle prosequi related to only one of the two counts charging the same offense, there would be a strong basis for the defendant’s argument.

In fact, carrying the argument to its logical conclusion, not only would a second trial be precluded but a continuation of the original trial on the accessory offense, after an acquittal of that offense, would be deemed a second trial and would also be prohibited. Block v. State, 286 Md. 266 , 407 A.2d 320 (1979); Pugh v. State, supra. However, the fallacy in the defendant’s argument is his treating the nolle prosequi as an acquittal. Moreover, the argument fails to distinguish between the broad nolle pros of an offense and the nolle pros of one count when another viable count charges the same offense.

In light of the defendant’s argument, it is necessary to examine the nature of a nolle prosequi and the often repeated statement that a nolle prosequi, after jeopardy attaches and without the defendant’s consent, "operates as an acquittal.” III. Apparently the first reported case discussing the entry of a nolle prosequi in a criminal prosecution was Stretton and Taylors Case, 1 Leon. 119, 74 Eng. Rep. 111 (K.B. 1588), where the Attorney General entered a "non vult prosequi’ for purpose of preventing a private prosecution. Since that time, the nolle prosequi has been a means whereby the gov- ⁸³ eminent exercises control over pending criminal cases.

See Note, Nolle Prosequi, 41 N.Y.U.L. Rev. 996, 997 (1966). Thus, as Bishop points out, a KNolle Prosequi in criminal practice (for it pertains also to civil), is a declaration of record from the legal representative of the government, that he will no further prosecute the particular indictment or some designated part thereof.” 2 Bishop, New Criminal Procedure § 1387, p. 1194 (2d ed. 1913). It is an "abandonment of the prosecution,” Barrett v. State, 155 Md. 636, 638 , 142 A. 96 (1928), or a "discontinuance of a prosecution by the authorized attorney” for the state, Commonwealth v. Hart, 149 Mass. 7, 8 , 20 N.E. 310 (1889). The entry of a nolle prosequi is generally within the sole discretion of the prosecuting attorney, free from judicial control and not dependent upon the defendant’s consent.

Barrett v. State, supra, 155 Md. at 637-638 ; Greathouse v. State, 5 Md. App. 675, 685 , 249 A.2d 207 , cert. denied, 253 Md. 734 (1969); Commonwealth v. Tuck, 20 Pick. 356 , 366 (Mass. 1838); Bishop, supra, § 1388; Hochheimer, The Law of Crimes and Criminal Procedure § 152, p. 170 (2d ed. (1904)). 6 A nolle prosequi may be entered as to an entire charging document, or one or more counts, or even a part of a count. The prosecution may nolle pros part of a count for the purpose, inter alia, of curing duplicity or of reducing a greater offense to a lesser included one. Knotts v. State, 237 Md. 417, 420 , 207 A.2d 100 (1965); Commonwealth v. Briggs, 7 Pick. 177 , 179 (Mass. 1828); Bishop, supra, §§ 1391-1392, pp. 1196-1197; Hochheimer, supra.

However, the prosecution cannot, by a nolle pros of part of a count, change the entire nature of the offense charged. Commonwealth v. Dunster, 145 Mass. 101, 102-103 , 13 N.E. 350 (1887). It has been settled since at least the opinion of Chief Justice Holt in Goddard v. Smith, 6 Mod. 261, 1 Salk. 21 (1704), ⁸⁴ that while a nolle prosequi discharges the defendant on the charging document or count which was nolle prossed, and while it is a bar to any further prosecution under that charging document or count, a nolle prosequi is not an acquittal or pardon of the underlying offense and does not preclude a prosecution for the same offense under a different charging document or different count. More than one hundred years ago, this Court stated in State v. Morgan, 33 Md. 44, 46 (1870): "It is well settled by the authorities that a nolle prosequi ordinarily does not operate as a pardon; but that the accused remains subject to be proceeded against by another indictment for the same offence.” Later, in Barrett y.

State, supra, 155 Md. at 638 , the Court reiterated that when an indictment was nolle prossed or abandoned, "the case was terminated .. . and there can be no further prosecution under that indictment,” but that the discontinuance by the prosecuting attorney was not the equivalent of "confessing a plea of not guilty.” Accord, Dealy v. United States, 152 U.S. 539, 542 , 14 S. Ct. 680, 681 , 38 L. Ed. 545 (1894) ("a nolle works no acquittal, and leaves the prosecution just as though no such count had ever been inserted in the indictment”); Dortch v. United States, 203 F.2d 709, 710 (6th Cir. 1953), cert. denied, 346 U.S. 814 , 74 S. Ct. 25 , 98 L. Ed. 342 (1953); People v. McGinnis, 234 Ill. 68 , 84 N.E. 687, 691 (1908); Commonwealth v. Briggs, supra, 7 Pick, at 179; Commonwealth v. Wheeler, 2 Mass. 172 (1806); People v. Tenerowicz, 266 Mich. 276 , 253 N.W. 296, 304 (1934); State v. McNeill, 3 Hawks 183 (N.C. 1824); Sellers v. Boone, 261 S.C. 462 , 200 S.E.2d 686 (1973). 7 ⁸⁵ In sum, absent constitutional or statutory provisions governing the effect of a nolle prosequi such as exist in some jurisdictions, there is nothing inherent in the nature of a nolle prosequi which causes its entry to operate as an acquittal of the underlying offense.

IV

The proposition that a nolle prosequi, without the defendant’s consent, "amounts to” or is "tantamount to” or is the "equivalent of’ or "operates as” an acquittal if it is entered after the attachment of jeopardy, is not a characteristic of a nolle prosequi itself. Instead, the proposition originated with, and is an aspect of, a body of double jeopardy law which developed in several nineteenth century American cases, both under American common law double jeopardy principles and under the Fifth Amendment. Under the English common law, the pleas of former jeopardy (autrefois acquit, autrefois convict and pardon) provided protection to a defendant only if there had been an earlier acquittal or conviction or pardon. Hoffman v. State, 20 Md. 425, 434 (1863); Boone v. State, 3 Md. App. 11, 23-24 , 237 A.2d 787 , cert. denied, 248 Md. 733 , cert. denied, 393 U.S. 872 , 89 S. Ct. 161 , 21 L. Ed. 2d 141 (1968); United States v. Herbert, 5 Cranch C.C. 87, 92, 26 Fed. Cas. 284, 286 (Fed. Case No. 15, 354, C.C.D.C. 1836).

However in several American jurisdictions, the principle developed that, because the defendant was entitled to a verdict once the trial began, if the trial (or portion of the trial relating to a particular offense) were aborted by certain actions of the court or prosecutor without the defendant’s consent, thereby depriving him of his right to a verdict, then the prohibition ⁸⁶ against double jeopardy would preclude a subsequent trial. This principle was applied when the trial was aborted either by the prosecutor’s entering a nolle prosequi or otherwise abandoning the prosecution, or by the court’s declaring a mistrial without a "manifest necessity” for so doing (whether sua sponte or upon the prosecutor’s motion). The earlier opinions discussed both circumstances together, viewing mistrial cases as authority in cases involving a nolle prosequi, and vice versa. Many cases took the position that the termination of a trial under either of these circumstances would be deemed an acquittal, thereby bringing the matter within the common law plea of autrefois acquit.

See generally, e.g., United States v. Shoemaker, 2 McLean 114 , 27 Fed. Cas. 1067 (Fed. Case No. 16,279, C.C.D. Ill. 1840); Commonwealth v. McCormick, 130 Mass. 61 (1881); Commonwealth v. Tuck, supra, 20 Pick, at 365; Commonwealth v. Wade, 17 Pick. 395 , 399 (Mass. 1835); Mounts v. The State of Ohio, 14 Ohio 295 , 303-305, 45 Am. Dec. 542 (1846); Commonwealth v. Cook, 6 Serg. & Rawl. 577 (Pa. 1822); State v. M’Kee, 1 Bail. 651 (S.C. 1830). The 1830 South Carolina case, State v. M’Kee, supra, represents perhaps the earliest application of this double jeopardy principle in the context of a nolle prosequi. The defendant in that case was being tried for murder.

After all evidence had been introduced and during the closing arguments before the jury, the prosecuting attorney entered a nolle prosequi. The court held that this action amounted to an acquittal and that, therefore, the defendant could not be tried a second time for the offense, 1 Bail, at 656. In arriving at this conclusion, the court first reviewed the mistrial cases, particularly those involving hung juries where retrials were permitted under the manifest necessity standard, 8 and then stated (id. at 655): ⁸⁷ "The maxim of the common law, that 'no man shall be twice put in jeopardy of his life for the same offence/ is the foundation of the rule, which prevents the arrest of the trial after this stage, except for the causes already noticed. "But say that the . .. question was a new one, and that it must be settled by general principles, could we fail to come to the same conclusion?

Starting with the common law maxim before us, 'no man shall be twice put in jeopardy of his life for the same offence/ we ask what is meant by jeopardy of his life? It is where one is put upon his trial, upon a valid indictment.... It may result in his condemnation, and hence he is in jeopardy. To give every opportunity to innocence to escape, the law humanely affords to the prisoner the arbitrary choice of his jurors: he may challenge twenty of them peremptorily.

After he has selected his jury, and they are charged with his case, can the Solicitor from defect of evidence, or an objection to a juryman, say, I will not now proceed with the trial; I will enter a nolle prosequi, and at another term give out a second one, and be prepared then with more evidence, and have a jury better suited to my wishes? This would, indeed, be literally twice putting the prisoner’s life in jeopardy for the same offence. Carry the matter a little farther, and as was well argued by the learned counsel for the prisoner, allow this right to the Solicitor, and the prosecutor is prepared, by the first trial, to meet all the points of the prisoner’s defence, and even to shape his own testimony to conviction. This would be making the Court hold out every inducement to perjury, and subornation of perjury, and convert jury trials into engines to oppress and destroy, at the pleasure of the prosecutor.

Such is not, cannot, and never will be the law.” ⁸⁸ And later (id. at 656): "This Court has over and over again said, that in no case in the sessions will they grant a new trial, when the verdict is for the defendant. It is the extension of the principle that no man shall be twice put in jeopardy of his life, so far, that no man shall be twice tried for the same offence, when one jury have passed upon, and declared his innocence. It is giving to the prisoner the benefit, not only of the prejudices of his jurors, but even of the errors of the judge. Where would be this protection if the Solicitor could say, I find the jury are with you, and therefore, will enter a nolle prosequi, and give out, and try you on a second indictment?

It would be, in effect, allowing to the Solicitor a power which this Court denies that itself possesses, of subjecting the prisoner to a new trial, as often as it might be necessary to obtain a verdict of guilty.” A few years later, in Commonwealth v. Wade, supra, 17 Pick, at 399-400, the Massachusetts court, although stating that necessity may warrant a mistrial and retrial "as if the jury cannot agrfee, or if one of them is taken ill,” nevertheless took the position that when the prosecutor entered a nolle prosequi (because of a failure to prove an allegation in the indictment), the defendant was entitled to an acquittal barring a new trial for the same offense. In the leading case of United States v. Shoemaker, supra, involving a nolle pros of the indictment after the jury was impaneled and the witnesses sworn, Justice McLean for the court, relying upon Commonwealth v. Wade, supra, and other state cases, held that under the Fifth Amendment’s Double Jeopardy Clause, the nolle prosequi "must be considered the equivalent to a verdict of acquittal, and, as such, ... is a bar to the present | second] indictment.” 27 Fed. Cas. at 1069-1070 . The reason underlying the holding was the double jeopardy principle that "a jury having been sworn to ⁸⁹ try his [the defendant’s] case, he has a right to their verdict.” Id. at 1069. The court in Shoemaker , after discussing the relationship between the mistrial and the nolle pros cases (id. at 1067-1068), also took the position that the "manifest necessity” standard governing the discretion of a court in declaring a mistrial was inapplicable to the entry of a nolle prosequi.

The reason was, apparently, because the prosecutor’s discretion in entering a nolle prosequi, unlike a court’s declaration of a mistrial, is limited "by no fixed principle, or guided by no known rule,” and is not reviewable. Id. at 1068-1069. 9 An analysis of the leading Maryland case involving a nolle prosequi after the attachment of jeopardy, Friend v. State, 175 Md. 352 , 2 A.2d 430 (1938), confirms that a nolle prosequi ordinarily "operates as an acquittal” of the underlying offense only if this result is required by double ⁹⁰ jeopardy principles. Friend is the Maryland case regularly cited for the proposition that a nolle prosequi, after jeopardy attaches, operates as an acquittal. 10 However, Friend neither established nor even mentioned any such principle. In Friend , the defendant was tried before a justice of the peace and convicted of receiving stolen goods under the value of $25.00.

While his de novo appeal to the circuit court was pending, he was indicted for the same offense. After the indictment, the state’s attorney entered a nolle prosequi with respect to the case pending on appeal. The defendant then moved on double jeopardy grounds to quash the indictment; the circuit court denied the motion; and the defendant was again tried and was convicted of receiving stolen goods. On the defendant’s appeal to this Court, the State’s argument was that jeopardy had not attached at the first trial because the justice of the peace lacked jurisdiction over the offense.

This Court, however, held that in light of certain recent statutory changes, the justice of the peace did have jurisdiction and that, therefore, the defendant was in jeopardy in the first proceeding. 175 Md. at 354-355 . The Court pointed out that jeopardy had attached because the trial had begun, witnesses had been called, etc. Id. at 356 . The Court stated that the second trial under the indictment violated "the common law and . .. our constitutional prohibition with respect to placing a person in double jeopardy as to the same crime.” Id. at 355 . 11 The Court went on to state that the defendant had a right, as he saw fit, to proceed with the de novo appeal or allow the magistrate’s judgment to stand. Ibid. 12 ⁹¹ This Court’s decision in Friend was based entirely upon the application of double jeopardy principles.

At no time did the Court suggest that the nolle prosequi effected an acquittal. On the contrary, the Court indicated that the result would be the same whether the nolle prosequi had been entered or not, as the Court, erroneously, treated the nolle prosequi as a complete nullity. Id. at 356 . 13 Consequently, Friend merely stands for the principle that when the defendant is placed in jeopardy at his first trial, he has a right to accept the consequences of that proceeding, and a nolle prosequi and second trial on a new indictment for the same offense ordinarily violates double jeopardy principles. 14 V. As reviewed above, the statement that a nolle prosequi, without the defendant’s consent and after jeopardy attaches, "amounts to an acquittal” of the underlying offense, originated as an application of the same double jeopardy principle which prevents a retrial after an unconsented and ⁹² unnecessary mistrial. In accordance with its origins, the proposition that an unconsented nolle prosequi after jeopardy attaches "operates as an acquittal,” has been applied to prevent trials only when that result is dictated by the prohibition against double jeopardy.

The cases hold that, under circumstances where a continuation of a trial or a new trial for the same offense would not be precluded by double jeopardy principles, it is not precluded by the entry of a nolle prosequi. Thus, in Bynum v. State, 277 Md. 703 , 357 A.2d 339 , cert. denied, 429 U.S. 899 , 97 S. Ct. 264 , 50 L. Ed. 2d 183 (1976), the defendant was charged in one count with armed robbery and in another count with simple robbery based on the same acts. After the attachment of jeopardy, and without the defendant’s consent, the State nolle prossed the simple robbery count. The trial continued on the armed robbery charge, and the defendant was convicted.

In affirming, we held that even though the simple robbery charge was a lesser included offense of armed robbery, and even though the two offenses must be deemed the same under the required evidence test of Blockburger v. United States, 284 U.S. 299 , 52 S. Ct. 180 , 76 L. Ed. 306 (1932), the nolle prosequi of one count did not operate as an acquittal of the underlying offense so as to preclude the continuation of the trial on the other count, 277 Md. at 706-707 . The reason for our holding was that settled double jeopardy principles did not preclude the continuation of the same trial on a different count, as the defendant was not being "twice put to trial.” Id. at 707 . 15 The holding in Bynum is in accord with the virtually unanimous view that a nolle prosequi or abandonment after jeopardy attaches of a greater or lesser included charge does not amount to an acquittal of the other charge deemed to be the same under the Blockburger test, ⁹³ and that the trial on the latter charge may continue. See, e.g., Tyler v. State, 5 Md. App. 158 , 245 A.2d 592 (1968), cert. denied, 252 Md. 733 (1969), cert. denied, 398 U.S. 940 , 90 S. Ct. 1846 , 26 L. Ed. 2d 274 (1970); Holtz v. State, 1 Md. App. 358, 361-362, 230 A.2d 117 (1967); Blair v. State, 216 Ala. 463 , 113 So. 414 (1927); People v. Carothers, 77 Cal. App. 2d 252, 254 , 175 P.2d 30 (1946); People v. Dreyer, 71 Cal.

App. 2d 181, 192-195 , 162 P.2d 468 (1945); Briola v. People, 76 Colo. 489 , 232 P. 924 (1925); People v. Murray, 73 Ill. App. 2d 376, 384 , 220 N.E.2d 84 (1966); Commonwealth v. Dean, 109 Mass. 349 (1872); State v. Puckett, 39 N.M. 511, 514-515 , 50 P.2d 964 (1935); State v. Mundy, 243 N.C. 149, 152 , 90 S.E.2d 312 (1955); Baker v. State, 12 Ohio St. 214 (1861). Moreover, the cases go beyond the situation of a count charging a greater offense and another a lesser included offense. It is generally held that the nolle pros of one count after jeopardy attaches has no bearing upon another count charging the identical offense, and that the trial may continue on the count charging that same offense.

United States v. McDaniel, 538 F.2d 408, 414 (D.C. Cir. 1976); Barsock v. United States, 177 F.2d 141, 143 (9th Cir. 1949); Oliver v. State, 234 Ala. 460 , 175 So. 305, 307 (1937); Barnett v. The State, 54 Ala. 579, 586 (1875); People v. Horowitz, 131 Cal. App. Supp. 791 , 19 P.2d 874 (1933); Gilliam v. The State, 131 Tex. Cr. 8, 96 S.W.2d 86 (1936). See also Dealy v. United States, supra, 152 U.S. at 542 ; Shafer v. United States, 179 F.2d 929, 930 (9th Cir. 1950), cert. denied, 339 U.S. 979 , 70 S. Ct. 1024 , 94 L. Ed. 1384 (1950).

But see State v. Hess, 240 Mo. 147, 158 , 144 S.W. 489 (1912). 16 ⁹⁴ On the other hand, cases actually holding that a nolle pros or abandonment of a charge or count was equivalent to an acquittal of the underlying offense all involved a second trial which would have been barred by the double jeopardy principle set forth in Friend v. State, supra, 175 Md. 352 ; United States v. Shoemaker, supra, 27 Fed. Cas. 1067 ; State v. M’Kee, supra, 1 Bail. 651 ; and similar decisions. They are cases where the prosecution, for whatever reason, nolle prossed a charge after jeopardy attached and instituted a subsequent prosecution which was inconsistent with settled American double jeopardy law. See, e.g., Franklin v. State, 85 Ga. 570 , 11 S.E. 876 (1890); Jones v. State, 55 Ga. 625 (1876); State v. Reed, 168 Ind. 588 , 81 N.E. 571 (1907); State v. Madden, 119 Kan. 263 , 237 P. 663 (1925); State v. Washington, 33 La. Ann. 1473 (1882) (involving successive prosecutions for murder and accessory before the fact to murder); State v. Linton, 283 Mo. 1 , 222 S.W. 847 (1920); State v. Miller, 272 N.C. 243 , 158 S.E.2d 47 (1967); State v. Pearce, 266 N.C. 234, 237-238 , 145 S.E.2d 918 (1966); Mounts v. State of Ohio, supra, 14 Ohio 295 ; Gilliam v. The State, 131 Tex.

Cr. 8, 96 S.W.2d 86 (1936).

VI

Applying these principles to the instant case requires an affirmance of the trial court’s denial of Ward’s double jeopardy motion. The nolle pros of count five at the defendant’s trial was not an acquittal as to the underlying offense of being an accessory before the fact to murder, and in no way precluded the continuation of the trial under count three, also charging him with being an accessory. The defendant was entitled to a verdict on the accessory charge, and he received it. The State did not then attempt a prohibited subsequent prosecution under the nolle prossed count five.

It did