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him on matter of law.78

Where a demurrer by the state to a plea of former acquittal or conviction is overruled, defendant is not entitled to discharge, but the state may reply;79 but if the state does not reply, the judgment must be that defendant be discharged, for the demurrer admits the facts stated in the plea.so The judgment on the issue raised by a plea of former acquittal, conviction, or jeopardy should be entered on the records of the court;81 but failure to enter a judgment against defendant on such a plea does not invalidate a conviction on a plea of not guilty entered by him without objection under permission to plead over.82

260, 7 AmR 611.

Ind.-Clem 13 AmR 369. Mass.-Com. v. Golding, 14 Gray 49; Com. v. Roby, 12 Pick. 496; Com. v. Goddard, 13 Mass. 455.

v. State, 42 Ind. 420,

N. J.-State v. Ackerman, 64 N. J. L. 99, 45 A 27.

N. Y.-Peo. v. Trimble, 131 N. Y. 118, 29 NE 1100 [aff 60 Hun 364, 15 NYS 60]; Peo. v. Saunders, 4 Park. Cr. 196.

N. C.-Pollard v. State, 83 N. C. 597.

Or.-State v. Holloway, 57 Or. 162, 110 P 397, 791.

33.

Tenn.-Fulkner v. State, 3 Heisk.

Vt.-State v. Pianfetti, 79 Vt. 236, 65 A 84, 9 AnnCas 127.

W. Va.-State v. Cross, 44 W. Va. 315, 29 SE 527.

Wis.-McFarland v. State, 68 Wis. 400, 32 NW 226, 60 AmR 867.

[a] English rule criticized.-"We do not think the English rule rests upon any sound principle. Why a man should be held to have conclusively admitted himself guilty of an offense for which he is being prosecuted, merely because he avers that he has theretofore been prosecuted for the same offense and acquitted or convicted thereof and fails to prove it, we cannot comprehend. The verdict against him on such special plea is simply that he was not theretofore so acquitted or convicted of the offense charged. By what rule of logic or legal presumption can it be said that, because he asserts an acquittal or conviction therefor, which the jury negatives, he conclusively admits his guilt of the offense charged, or must be conclusively presumed guilty thereof? . . . Take another view of the question. The rules governing the two pleas of autrefois acquit and autrefois convict are the same. State v. Parish, 43 Wis. 345. Now, suppose one criminally charged pleads that he has theretofore been tried for the same offense and acquitted. The state takes issue on the plea, and the jury find that he has not been so tried and acquitted. The utter injustice, as well as absurdity, of convicting the accused on these proceedings, without further inquiry of the crime charged, is obvious. Such proceedings fail to establish a single element of guilt. Yet the English rule demands and upholds such convictions. We adopt the opposite rule, and hold, with most of the courts of this country, that the court erred in pronouncing judgment of conviction without a trial of the issue made by the plea of not guilty." McFarland v. State, 68 Wis. 400, 404, 32 NW 226, 60 AmR 817.

84

[§ 774] 7. Plea of Not Guilty 88-a. In General. If defendant denies his guilt of the offense charged, he must plead not guilty; or if he refuses to plead, the court must direct such a plea to be entered for him, unless the objection may be and is waived or cured by statute.85 It has been held, however, that by announcing himself ready for trial defendant in effect enters a plea of not guilty.86 Where a plea of not guilty has not been entered at the time of the prisoner's arraignment, the court may order it to be entered thereafter nunc pro tunc.87 The plea of not guilty is sufficient, although informal, if it is certain to a common intent.8 88 Withdrawal of a

down that, when the issue on the special plea becomes one of law, and it is decided against the respondent, he is allowed to plead over in misdemeanors as well as in felonies; but when the issue becomes one of fact, and is decided against the respondent, in misdemeanors it amounts to a conviction, and the court proceeds to fix the penalty).

[a] The reason for this distinction is said to be that respondent is supposed to know the facts; and if such an issue is found against him, the judgment should be final on account of the falsehood. But since a respondent is not presumed to know the law, the determination of such an issue against him should not prejudice his rights, and judgment should be a respondeat ouster. Barge v. Com., 3 Penr. & W. (Pa.) 262, 23 Am D 81.

79. State v. Nelson, 7 Ala. 610. 80. State v. Ackerman, 64 N. J. L. 99, 45 A 27; State v. Cross, 44 W. Va. 315, 29 SE 527.

81.

Rust v. State, 31 Tex. Cr. 75, 19 SW 763.

82. Peo. v. Trimble, 131 N. Y. 118, 29 NE 1100 [aff 60 Hun 364, 15 NYS 60].

83. Cross-references: As waiver of:

Objection to jurisdiction see supra § 257.

Right to move to quash indictment

see Indictments and Informations [22 Cyc 484].

Entry on refusal of accused to plead see supra § 721. Failure to plead ground for new trial see infra § 2624. Order of pleading see supra § 724. Right to question jurisdiction under plea of not guilty see supra § 740. 84. U. S.-Crain v. U. S., 162 U. S. 625, 16 SCt 952, 40 L. ed. 1097.

Ala.-Hamilton v. State, 147 Ala. 110, 41 S 940; Bowen v. State, 98 Ala. 83, 12 S 808; Jackson v. State, 91 Ala. 55, 8 S 773, 24 AmSR 860; Fisher v. State, 46 Ala. 717. Ariz.-Terr. v. Blevins, 4 Ariz. 68, 77 P 616; Terr. v. Brash, 3 Ariz. 141, 32 P 260.

Cal.-Peo. v. Gaines, 52 Cal. 479; Peo. v. Corbett, 28 Cal. 328.

Colo.-Ray v. Peo., 6 Colo. 231. Il-Parkinson v. Peo., 135 Ill. 401, 25 NE 764, 10 LRA 91; Gould v. Peo., 89 III. 216; Hoskins v. Peo., 84 I11. 87, 25 AmR 433; Gundt v. Peo., 65 Ill. 372; Miller v. Peo., 47 Ill. A. 472; Spicer v. Peo., 11 Ill. A. 294; Price v. Peo., 9 Ill. A. 36.

Ind. Johns v. State, 104 Ind. 557. 4 NE 153; Fletcher v. State, 54 Ind. 462; Clem v. State, 42 Ind. 420, 13 AmR 369.

Kan.-State v. Wilson, 42 Kan. 587, 22 P 622.

La.-State v. Hunter, 43 La. Ann. 157, 8 S 624; State v. Ford, 30 La. Ann. 311.

Mich-Grigg v. Peo., 31 Mich. 471.
Miss.-Sartorious v. State, 24 Miss.

78. Foster v. Com., 8 Watts. & S. (Pa.) 77, 83 (where the court said: "Listening to the voice not of humanity but justice, we have carried this discretion a single step further, by applying it to all cases, without regard to the punishment, in which the plea contains no confession of facts which constitute guilt"); Barge v. Com., 30 Penr. & W. (Pa.) 262, 23 AmD 81. See also 2 Bishop Cr. Proc. 755 (where the rule is laid A. 262.

602.

Mo.-State v. Boatright, 182 Mo. 33, 81 SW 450; State v. Williams, 117 Mo. 379, 22 SW 1104; State v. Koerner, 51 Mo. 174; State v. Hubbell, 55 Mo.

N. C.-State v. Cunningham, 94 N. C. 824.

Tenn.-Sams v. State, 133 Tenn. 188, 180 SW 173; Link v. State, 3 Heisk. 252; Hill v. State, 1 Yerg. 76, 24 AmD 441.

Tex.-Munson v. State, (A.) 11 SW 114; Jefferson v. State, 24 Tex. A. 535, 7 SW 244; Shaw v. State, 17 Tex. A. 225; Huddleston v. State, 14 Tex. A. 73; Warren v. State, 13 Tex. A. 348; Ellison v. State, 6 Tex. A. 248; Parchman v. State, 3 Tex. A. 225; Smith v. State, 1 Tex. A. 408. Wash.-Palmer v. U. S., 1 Wash.

T. 5.

Wis.-Davis v. State, 38 Wis. 487; Douglass v. State, 3 Wis. 820; Anderson v. State, 3 Pinn. 367.

And see supra § 721.

Demurrer and plea at same time see supra § 724.

Plea of not guilty after plea in abatement or specially in bar or demurrer see supra §§ 752, 773.

[a] A plea admitting the facts but denying criminal responsibility is a plea of not guilty. State v. Sullivan, 52 Or. 614, 98 P 493; U. S. v. Betiong, 2 Philippine 126.

[b] Presumption that plea was entered. The indictment being read to the jury, it will be presumed, unless the contrary appears, that the plea of not guilty was entered. Hinkle v. Com., 66 SW 1020, 23 KyL 1979.

Plea on trial de novo on appeal from summary conviction see supra § 699.

85. See supra § 720.

86. Avery v. Peo., 11 Ill. A. 332; Spicer v. Peo., 11 Ill. A. 294; Arbuckle v. State, 80 Miss. 15, 31 S 437; Peo. v. Bradner, 107 N. Y. 1, 113 NE 87, 27 NYWklyDig 272; Peo. v. Frost, 5 Park Cr. (N. Y.) 52.

87. Parkinson v. Peo., 135 Ill. 401, 25 NE 764, 10 LRA 91; Long v. Peo.. 102 Ill. 331 (where the plea was entered after trial); Arbuckle v. State, 80 Miss. 15, 31 S 437; Waggoner v. State, 30 Oh. St. 575 (where the plea was entered after the jury had been sworn); State v. Straub, 16 Wash.

111, 47 P 227.

Time of pleading see supra §_714. 88. Peo. v. Bradner, 107 N. Y. 1. 13 NE 87, 27 NYWkly Dig 272 (holding that a formal plea of not guilty is not necessary in order to put defendant on trial, but that it is sufficient to constitute an issue that de fendant on his arraignment informed the court that he denies the charge or that he demands a trial); Smith V State, Peck (Tenn.) 165 (holding that, although the language of the plea should be the language of the prisoner, "He saith," yet where the record ran, "He appeared upon his ar raignment and put himself upon the country," it was sufficient). And see U. S. v. Betiong, 2 Philippine 126 (holding that. where a defendant charged with aiding a band of brig ands in his own defense admits the fact and alleges that he did so through fear of his life, his state ment must be regarded as a plea of not guilty).

[a] Sufficiency of plea under Callfornia statute. A plea of defense,

plea of not guilty has been treated elsewhere.89
[775] b. Defendants Jointly Indicted. Per-
sons jointly indicted for the same crime have
a right to plead severally not guilty, but a gen-
eral plea of not guilty by all is a separate plea as to
each.90

[776] c. Plea by Counsel. It seems that in a
prosecution for a misdemeanor a plea of not guilty
may be made by defendant by counsel, even in de-
fendant's absence,91 and there are cases sustaining
a plea by counsel in prosecutions for a felony, both
where defendant was present 92 and where he was
absent.93 Other cases hold that one accused of a
felony must plead in person, and that a plea of not
guilty by counsel, whether in defendant's absence or
presence, is a nullity.94 Where, however, the record
shows that defendant pleaded not guilty on arraign-
ment, and it appears that he actually was present,
evidence that the plea actually was made by de-
fendant's counsel and not by defendant himself
should not be heard to impeach the record.95
[ 7762] d. Joinder in Issue. The
must show defendant's plea of not guilty, in those

record

jurisdictions in which there can be no valid conviction without such a plea;96 but the omission from the record of the similiter or joinder in issue in such case does not vitiate the judgment;97 for the plea of not guilty, without more, legally puts defendant on trial by jury,98 and the similiter is a mere form, although the better practice is to insert it.99

[§ 777] e. Issues under Plea of Not Guilty. Defendant's plea of not guilty puts in issue every material allegation of the indictment,1 including the question of intent or knowledge, the identity 3 or the corporate existence of defendant; the corpus delicti, the place of the crime," its degree, the allegation that the name of the person injured was unknown to the grand jurors, and the objection that the indictment does not charge a criminal offense; and it places upon the prosecution the burden to prove accused's guilt beyond a reasonable doubt.10 Such a plea also puts in issue the question of accused's guilt of any minor offense which may be included in the charge.11 Under the general issue, defendant also is entitled to show all matters of justification and excuse. Misnomer has been

entered on the minutes, reciting that | in the progress of the trial by the | 67_SE_453.
"defendant thereupon interposes a
plea of not guilty as stated in_the
information," is sufficient, under Pen.
Code § 1017, which provides that such
entry shall recite that "the defendant
pleads that he is not guilty of the
offense charged." Peo. V.
Wallace,
101 Cal. 281, 35 P 862.

89. See supra § 731. 90. State V. Taylor, 1 Root (Conn.) 226; State v. Smith, 24 N. C. 402.

91. State v. Sullivan, 52 Or. 614, 98 P 493; State v. Dean, Brayt. (Vt.) 26.

92. Peo. v. Emerson, 130 Cal. 562, 62 P 1069; Peo. v. McCoy, 71 Cal. 395, 12 P 272; Minich v. Peo., 8 Colo. 440, 9P4; Stewart v. State, 111 Ind. 554, 13 NE 59; Feriter v. State, 33 Ind. 283.

93. Peo. v. Thompson, 4 Cal. 238; State v. Andrews, 84 Iowa 88, 50 NW 549; State v. Jones, 70 Iowa 505, 30 NW 750.

See also Rex v. Penprase, 4 B. & Ad. 573, 24 ECL 252, 110 Reprint 571 (where defendant was allowed to plead by a clerk in court).

94. Wilson v. State, 42 Miss. 639; McQuillen v. State, 16 Miss. 581; Sperry v. Com., 9 Leigh (36 Va.) 623, 33 AmD 261; Elick v. Territory, 1 Wash. T. 136; State v. Moore, 57 W. Va. 146, 49 SE 1015 [cit Cyc]; State V. Allen, 45 W. Va. 65, 30 SE 209; State v. Sutfin, 22 W. Va. 771; State V. Conkle, 16 W. Va. 736; Younger v. State, 2 W. Va. 579, 98 AmD 791.

95. Peo. v. Emerson, 130 Cal. 562, 62 P 1069; State v. Taylor, 171 Mo. 465, 71 SW 1005.

96. State v. Aler, 39 W. Va. 549, 20 SE 585. See supra §§ 712, 774.

97. Fla.-Dixon v. State, 13 Fla. 631.

Md-Rawlings v. State, 2 Md. 201. Mo.-Hawkins v. State, 7 Mo. 190. N. J-Berrian v. State, 22 N. J. L. 9 [rev on other grounds 22 N. J. L. 679].

N. C.-State v. DeBerry, 92 N. C. 800; State v. Carroll, 27 N. C. 139; State v. Christmas, 20 N. C. 545; State v. Lamon, 10 N. C. 175; State v. Fort, 4 N. C. 122.

Tenn.-Smith v. State, Peck 165.
W. Va.-State v. Lavin. 64 W. Va.
26. 60 SE 888; State v. Beatty, 51 W.
Va. 232, 41 SE 434; State v. Aler, 39
W. Va. 549, 20 SE 585.

98. U. S. v. Gibert, 25 F. Cas. No. 15,204, 2 Sumn. 19; State v. Beatty, 51 W. Va. 232, 41 SE 434.

12

rulings of the court in reference to 6. Peo. v. More, 68 Cal. 500, 9 P
the admission and rejection of testi- | 461; Peo. v. Aleck, 61 Cal. 137; Peo.
mony, and the prisoner may have the v. Bevans, 52 Cal. 470; Peo. v. Roach,
benefit of the court's instructions to 48 Cal. 382; Peo. v. Parks, 44 Cal.
the jury upon every proposition of 105; Field v. State, 34 Tex. 39 [overr
law arising in the case by simply ask- Myers v. State, 33 Tex. 525]; Thomas
ing for them. His protection lies not v. Com., 22 Gratt. (63 Va.) 912.
in the formal words of his plea but
in its legal denial of his guilt of the
charge laid against him in the indict-
ment and in the fair, impartial and
legal trial of the issue thus raised,
by jury under the supervision and
direction of the court. These views
lead to the conclusion that the fail-
ure of the record to formally set out
the plea does not vitiate the proceed-
ings and the conviction." State v.
Beatty, 51 W. Va. 232, 237, 41 SE
434.

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Cal.-Peo. v. Collis, 30 Cal. A. 656, 159 P 229; Peo. v. Wong Sang Lung, 3 Cal. A. 221, 84 P 843.

Ga.-Phillips v. State, 131 Ga. 426, 62 SE 239; Jones v. State, 12 Ga. A. 133, 76 SE 1070; Cooper v. State, 2 Ga. A. 730, 59 SE 20.

Ill.-Peo. v. Lee, 248 Ill. 64, 93 NE

[blocks in formation]

Or.-State v. Whitney, 7 Or. 386. Va.-Potts v. Com., 113 Va. 732, 73 SE 470.

W. Va.-State v. Beatty, 51 W. Va. 232, 41 SE 434.

2. Peo. v. Everhardt, 104 N. Y. 591, 11 NE 62, 2 Silv. App. 506, 6 N. Y. Cr. 231, 26 NYWkly Dig 114 [aff 5 N. Y. Cr. 91, 25 NYWkly Dig 300].

[a] Bule discussed. "The words, 'Not Guilty are a full and complete 3. Peo. v. Wong Sang Lung, 3 Cal. answer and response to every allega- A. 221, 84 P 843. tion contained in the indictment. 4. Madisonville, etc., R. Co. V. They are so understood by the court Com., 140 Ky. 255, 130 SW 1084. and the prisoner is fully protected 5. State v. Johnson, 85 S. C. 265,

[a] In North Carolina (1) under the express provisions of Code § 1194, an objection that an offense was not committed in the county of indictment and trial must be raised by plea in abatement. State v. Burton, 138 N. C. 575, 50 SE 214. (2) But the fact that the offense was committed in another state is matter of defense, which defendant may show upon the plea of not guilty. State v. Barrington, 141 N. C. 820, 53 SE 663; State v. Blackley, 138 N. C. 620, 50 SE 310; State v. Burton, 138 N. C. 575, 50 SE 214; State v. Buchanan, 130 N. C. 660, 41 SE 107; State v. Mitchell, 83 N. C. 674.

[b] And in Iowa it was held that the courts would not consider the question of jurisdiction on a plea of not guilty. State v. Day, 58 Iowa 678, 12 NW 733.

7. State v. Whitney, 7 Or. 386. [a] An indictment for murder charges every grade of unlawful homicide, and a plea of not guilty puts in issue the guilt of defendant as to every grade and degree of homicide prohibited by law. Reynolds v. State, 34 Fla. 175, 16 S 78. 8. Cameron v. State, 13 Ark. 712. 9. Peo. v. Pierson, 80 App. Div. 415, 81 NYS 214 [rev on other grounds 176 N. Y. 201, 68 NE 243, 63 LRA 187, 98 AmSR 666].

10. Potts v. Com., 113 Va. 732, 73 SE 470.

11. State V. Buonomo, 87 Conn. 285, 87 A 977; Jones v. State, 12 Ga. A. 133, 76 SE 1070.

12. Ala.-Roberson v. State, 183 Ala. 43, 62 S 837.

Fla.-Hodge v. State, 29 Fla. 500, 10 S 556: Adams v. State, 28 Fla. 511, 10 S 106; Savage v. State, 18 Fla. 909.

Md. Mills v. State, 76 Md. 274, 25 A 229: Cooper v. State, 64 Md. 40, 20 A 986. Mass.-Martin

v. Com., 1 Mass. 347. N. Y.-Peo. v. Benjamin, 2 Park Cr. 201.

S. C.-State v. Farr, 46 S. C. L. 24.

Wis.-Richards v. State, 82 Wis. 172, 51 NW 652.

Eng.-4 Blackstone Comm. p 338; 2 Hale P. C. p 258. And see supra § 753. [a]

Alibi-Ragsdale v. State, 12 Ala. A. 1, 67 S 783; Ariosi v. State,

held not available under a plea of not guilty, being

XII. NOLLE PROSEQUI

14

[ 778] A. Nolle Prosequi 1. Definition. Nolle prosequi has been defined as an entry made on the record, by which the prosecutor or plaintiff declares that he will proceed no further;15 a formal entry upon the record by the prosecuting officer by which he declares that he will not prosecute the case further, either as to some of the counts of the indictment, or as to part of a divisible count, or as to some of the defendants, or altogether.16 Striking a case from the docket unconditionally and absolutely amounts to a nolle prosequi.17 So also, except where defendant has not been apprehended and is not before the court,18 an order retiring an indictment from the trial docket of a court is equivalent to the dismissal thereof, and the same may not thereafter, on motion of the state, be restored to the docket for trial.19

[ 779] 2. Nature and Effect. A nolle prosequi can be entered only for an offense with which accused is charged formally in an indictment or information.20 It is not a final disposition of the case, and will not bar another prosecution for the same offense, unless it is entered after defendant has been put to his trial upon a valid indictment before a jury duly sworn and impaneled.21 It is

(Ark.) 163 SW 166.
[b]
Where accused is indicted for
assault with intent to kill by shoot-
ing, a plea of not guilty raises the
defenses that he did not shoot as
claimed, and that if he did his act
was justifiable. Broughton v. State,
9 Ga. A. 820, 72 SE 276.

[c] Intoxication.-The plea of "not guilty" to a criminal charge admits of any defense which the facts justify except former jeopardy, so that defendant, to avail himself of the defense of intoxication at the time of the offense, need not specially plead it. Peo. v. Collis, 30 Cal. A. 656, 159 P 229.

Former acquittal, conviction,

jeopardy see supra § 760.

Insanity see supra § 757.

Pardon see supra § 758.

or

Statute of limitations see supra

§ 756.

13. See supra § 745.

14. Bar to subsequent prosecution see supra § 390 et seq.

Basis of suit for malicious prosecution see Malicious Prosecution [26 Cyc 60].

15. Bouvier L. D. [quot Denham v. Robinson, 72 W. Va. 243, 247, 77 SE 970, 45 LRANS 1123, AnnCas1915 D 9971; Com. V. Casey, 12 Allen (Mass.) 214; State v. Primm, 61 Mo. 166; Wilkinson v. Wilkinson, 159 N. C. 265, 74 SE 740, 39 LRANS 1215; State v. Thornton, 35 N. C. 256; Com. v. Evans, 26 Pa. Co. 90.

16. Black L. D.; Clark Cr. Proc. p 135; Wilkinson v. Wilkinson, 159 N. C. 265, 74 SE 740, 39 LRANS 1215; Scheibler V. Steinburg. 129 Tenn. 614, 617, 167 SW 866, AnnCas 1915D 1162 [cit Cyc]; Denham V. Robinson, 72 W. Va. 243, 247, 77 SE 970, 45 LRANS 1123, AnnCas1915D 997 [quot Cycl.

17. Kistler v. State, 64 Ind. 371, 375 (where it is said: "We do not doubt, that, by arrangement of the parties, a civil, and probably a criminal, cause may be temporarily omitted from the docket, without being absolutely dismissed. Perhaps the court may order that a cause may be temporarily omitted from the docket, without the consent of parties. But it would be inconsistent with the regard due to the rights of criminals even, to sanction the practice and recognize as law a rule,

available only under a plea in abatement.13

AND DISCONTINUANCE.

not an acquittal,22 nor a retraxit;23 nor can it be
considered as equivalent to a pardon.24 It is like a
nonsuit or discontinuance in a civil suit, and leaves
the matter in the same condition in which it was
before the commencement of the prosecution.25 Be-
ing a discharge, it is necessarily a termination of
the particular prosecution,26 and defendant is en-
titled to be released 27 without entering into a rec-
ognizance to appear at any other time,28 although
it has been held that the court may, in its discre-
tion, require defendant to find security for his ap-
pearance.29
The only difference between a general
or unqualified nolle prosequi and one "with leave"
is that, in the latter case, the leave to issue a capias
upon the same bill is given by the court in ad-
vance, instead of upon a special application made
afterward.30

Curative effect. A nolle prosequi destroys all basis for quashing an indictment as to the counts upon which the order is entered.31 Thus it will cure the objection of a misjoinder of counts,32 or of duplicity in a count.33

[§ 780] 3. Authority to Enter and Time of Entry-a. In General. At the common law, only the attorney-general could exercise the power to enter

that the court might strike from the | 589.
docket and reinstate their causes, [b] Appeal from conviction on
and order them re-arrested, at pleas- complaint.-After a conviction on a
ure"); State v. Dix, 18 Ind. A. 472, complaint in the district court, and
48 NE 261.
an appeal by defendant to the su-
18. Gross v. Com., 118 Ky. 907, perior court, a nolle prosequi may
82 SW 618, 26 KyL 870.
be entered in the latter and it is
19.
Dudley v. State, 55 W. Va. not an acquittal. Com. v. McClusky,
472, 47 SE 285.
151 Mass. 488, 25 NE 72.
20. McCreary v. Com., 163 Ky. 206,
173 SW 351.

21. Scheibler V. Steinburg, 129 Tenn. 614, 167 SW 866, AnnCas1915 D 1162. See supra § 391.

22. U. S.-U. S. v. Shoemaker, 27 F. Cas. No. 16,279, 2 McLean 114. Ala.-O'Brien v. State, 91 Ala. 25, 8 S 560; State v. Blackwell, 9 Ala. 79.

Ark.-Floyd v. State, 80 Ark. 94, 96 SW 125.

Iowa.-U. S. v. Switzer, Morr. 302. Kan.-State v. Child, 44 Kan. 420, 24 P 952.

La.-State v. Hornsby, 8 Rob. 583,
41 AmD 314.

Me.-State v. Nutting, 39 Me. 359.
Mass.-Com.
V. McClusky. 151
Mass. 488, 25 NE 72; Com. v. Wheel-
er, 2 Mass. 172.

Mo.-State v. Primm, 61 Mo. 166;
Ex p. Donaldson, 44 Mo. 149.
N.. C.-Wilkinson

V. Wilkinson,
159 N. C. 265, 74 SE 740, 39 LRANS
1215; State v. Smith, 129 N. C. 546,
40 SE 1; State v. Thornton, 35 N.
C. 256; State v. McNeill, 10 N. C.
183.

S. C.-State v. Haskett, 21 S. C.
L. 95; Heyward v. Cuthbert, 15 S.
C. L. 354; Teague v. Wilks, 14 S. C.
L. 461; Shackleford v. Smith, 10 S.
C. L. 36.

Va.-Wortham v. Com., 5 Rand. (26
Va.) 669; Lindsay v. Com., 2 Va. Cas.
(4 Va.) 345.

But see Morgan County v. John- | son, 31 Ind. 463 (holding that, when a nolle prosequi is entered and defendant is discharged, he is acquitted of the prosecution; the proper judgment in such cases is "defendant go hence acquit," etc.).

[a] After a new trial granted, a nolle prosequi may be entered and is not an acquittal. State v. Rust, 31 Kan. 509, 3 P 428 [cit State v. Redman, 17 Iowa 329; Clarke v. State, 23 Miss. 261]; Com. V. Smith, 98 Mass. 10; Reg. v. Leatham, 3 E. & E. 658, 107 ECL 658, 121 Reprint

23. State v. Primm, 61 Mo. 166. 24. State v. Hornsby, 8 Rob. (La.) 583, 41 AmD 314; State v. Morgan, 33 Md. 44; Com. v. Wheeler, 2 Mass. 172; State v. Wear, 145 Mo. 162, 46 SW 1099.

25. State V. Main, 31 Conn. 572.

26. Lizotte v. Dloska, 200 Mass. 327, 86 NE 774; Scheibler v. Steinburg, 129 Tenn. 614, 167 SW 866, AnnCas1915D 1162. And see infra § 790.

27. Com v. McClusky, 151 Mass.

488, 25 NE 72.

28. Wilkinson V. Wilkinson, 159 N. C. 265, 74 SE 740, 39 LRANS 1215; State v. Thornton, 35 N. C. 256.

29. State v. Gulden, 13 S. C. L. 524.

30. Wilkinson V. Wilkinson, 159 N. C. 265, 74 SE 740, 39 LRANS 1215; State v. Smith, 129 N. C. 546, 40 SE 1.

31. State v. Smith, 67 Me. 328; State v. Pillsbury, 47 Me. 449; Com. v. Andrews, 132 Mass. 263; Com. v. Holmes, 103 Mass. 440; Com. v. Cain, 102 Mass. 487; Com. v. Tuck, 20 Pick. (Mass.) 356; State v. Buchanan, 23 N. C. 59; State v. Lockwood, 58 Vt. 378, 3 A 539.

32. U. S.-U. S. v. Scott, 27 F Cas. No. 16,241, 4 Biss. 29.

Colo. Heller v. Peo., 2 Colo. A. 459, 31 P_773.

Mass.-Com. V. Cain, 102 Mass. 487; Com. V. Kimball, 7 Gray 328.

N. H.-State v. Merrill, 44 N. H.

624.

N. C.-State v. Jones, 82 N. C. 685. 33. Conn.-State V. Miller, 24 Conn. 522.

Me.-State v. Bean, 77 Me. 486.
Mass.-Com. v. Holmes, 119 Mass.

195.

N. H.-State v. Merrill, 44 N. H. 624.

N. C.-State v. Cooper, 101 N. C 684, 8 SE 134.

Pa.-Kilrow v. Com., 89 Pa. 489.

a nolle prosequi upon an indictment; 34 and where there is no statute upon the subject, this power is still reposed in the attorney-general or the several public prosecutors.35 There are three periods of the prosecution in which a nolle prosequi may be entered, namely, before the jury is impaneled, while the case is before the jury, and after the verdiet.36

[§ 781] b. Consent of Defendant. A nolle

34. Hawaii.-Rex v. Robertson, 6 Hawaii 718.

La.-State v. Moise, 48 La. Ann. 109, 18 S 943, 35 LRA 701.

Mass.-Com. v. Tuck, 20 Pick. 356.
N. J.-State v. Hickling, 45 N. J.

L. 152.

N. Y.-Peo. v. Bennett, 49 N. Y. 137; Peo. v. McLeod, 1 Hill 377, 37 AmD 328, 25 Wend. 483.

35. U. S.-U. S. v. Coolidge, 25 F. Cas. No. 14,858, 2 Gall. 364; U. S. v. Schumann, 27 F. Cas. No. 16,235, 2 Abb. 523, 7 Sawy. 439; U. S. v. Shoemaker, 27 F. Cas. No. 16,279, 2 McLean 114; U. S. v. Stowell, 27 F. Cas. No. 16.409, 2 Curt. 153; U. S. V. Watson, 28 F. Cas. No. 16,652, 7 Blatchf. 60.

Colo.-Peo.

v. Lake County Dist. Ct., 23 Colo. 466, 48 P 500.

Conn.-State v. Benham, 7 Conn. 414; Merwin v. Huntington, 2 Conn. 209.

Ga-Durham v. State, 9 Ga. 306; Reynolds v. State, 3 Ga. 53.

La-State v. Ayles, 120 La. 661, 45 S 540; State v. Hornsby, 8 Rob. 583, 41 AmD 314.

Me.-State v. Bean, 77 Me. 486; State v. Burke, 38 Me. 574; State v. Bruce, 24 Me. 71.

Mass.-Com. v. Wallace, 108 Mass. 12; Com. v. Smith, 98 Mass. 10; Com. v. Tuck, 20 Pick. 356; Com. v. Briggs, 7 Pick. 177; Com. v. Wheeler, 2 Mass. 172.

Mich.-Peo. v. Pline, 61 Mich. 247, 28 NW 83.

Miss. Clarke V. State, 23 Miss. 261.

N. H.-State v. Tufts, 56 N. H. 137; State v. Smith, 49 N. H. 155, 6 AmR 480.

N. J.-State v. Hickling, 45 N. J. L. 152.

N. Y.-Peo. v. McLeod, 1 Hill 377,
404, 37 AmD 328, 25 Wend. 483, 572;
Peo. v. Porter, 4 Park. Cr. 524.
N. C.-State v. Thompson, 10 N.
C. 613.

Pa-Com. v. Seymour, 2 Brewst.

567.

R. I.-Rogers v. Hill, 22 R. I. 496, 48 A 670.

S. C.-State v. Shirer, 20 S. C. 392; State v. McKee, 17 S. C. L. 651, 21 AmD 499.

Vt-State v. Roe, 12 Vt. 93. Eng. Reg. v. Allen, 1 B. & S. 850, 101 ECL 850, 121 Reprint 929; Reg. v. Dunn, 1 C. & K. 730, 47 ECL 730.

N. B.-Reg. v. Marshall, 31 N. B. 390.

36. State v. Moise, 48 La. Ann. 109, 18 S 943, 35 LRA 701; Com. v. Tuck, 20 Pick. (Mass.) 356.

[a] Illustrations of time of entry. (1) A nolle prosequi may be entered before the finding of an indictment. Gallagher V. Franklin County, 5 Pa. Co. 431. (2) After an indictment has been found and before the jury have been impaneled and sworn. U. S. v. Schumann, 27 F. Cas. No. 16,235, 2 Abb. 523, 7 Sawy. 439; U. S. v. Stowell. 27 F. Cas. No. 16,409, 2 Curt. 153; Durham v. State, 9 Ga. 306; Terr. v. Fullerton, 16 Hawaii 526; Rex v. Robertson, 6 Hawaii 718; Dye v. State, 130 Ind. 87, 29 NE 771; Dilger v. Com., 88 Ky. 550, 11 SW 651, 11 KyL 67; State v. Smith, 67 Me. 328; Com. V. Scott, 121 Mass. 33; Com. v. Smith, 9 Mass. 10; Com. v. Tuck, 20 Pick. (Mass.) 356; Com. v. Goodenough, Thach. Cr. (Mass.) 132; Clarke v. State, 23 Miss. 261; State v. Smith, 49 N. H. 155, 6 AmR 480; State v.

41

prosequi may be entered without defendant's consent at any time before the jury are impaneled,37 since all the authorities agree that the jeopardy of accused does not begin until the jury are fully impaneled and sworn.38 Furthermore the presence of defendant is not necessary.39 But according to the great weight of authority after the jury have been impaneled and sworn,40 after evidence has been admitted, after the evidence is closed,42 after the case McKee, 17 S. C. L. 651, 21 AmD 499; | case is not submitted to a jury, withHughes v. Com., 17 Gratt. (58 Va.) in the meaning of this section, until 565, 94 AmD 498. (3) After the evi- after the jury have been impaneled dence has been taken and the de- and sworn in the cause. Franklin fense made. U. S. v. Luciano, 2 v. State, 85 Ga. 570, 11 SE 876; NoPhilippine 96. (4) After disagree- lan v. State, 55 Ga. 521, 21 AmR ment and discharge of a jury and 281; Newsom v. State, 2 Ga. 60 (holdbefore another trial. Peo. v. Pline, ing that, under a statute prohibit61 Mich. 247, 28 NW 83; State v. ing a nolle prosequi after the case Shirer, 20 S. C. 392. (5) After ver- has been "submitted to a jury," a dict and before judgment. State v. nolle prosequi cannot be entered Klock, 48 La. Ann. 140, 18 S 942; after defendant has been arraigned State v. Smith, 67 Me. 328; Com. v. and has pleaded not guilty, and the Scott, 121 Mass. 33; Com. v. Tuck, jury have been impaneled and sworn, 20 Pick. (Mass.) 356; State v. Smith, as the case is then "submitted"); 49 N. H. 155, 6 AmR 480; Reg. v. Fortson v. State, 13 Ga. A. 681, 79 SE Leatham, 3 E. & E. 658, 107 ECL 746. 658, 121 Reprint 589. (6) At least when it is clear that no judgment can be pronounced on the verdict on account of defects in the indictment. State v. Moise, 48 La. Ann. 109, 18 S 943, 35 LRA 701; State v. Hornsby, 8 Rob. (La.) 583, 41 AmD 314. And see infra § 738. (7) After a rule nisi for a new trial. Reg. v. Leatham, 3 E. & E. 658, 107 ECL 658, 121 Reprint 589. (8) After a verdict has been set aside and a new trial granted and before the new trial. Ill.-Peo. v. Brown, 273 Ill. 169, State v. Rust, 31 Kan. 509, 3 P 428; Com. V. Smith, 98 Mass. 10. (9) After reversal of a conviction and before the new trial. Aaron v. State, 39 Ala. 75; Hughes V. Com., 17 Gratt. (58 Va.) 565, 94 AmD 498. (10) After appeal for a trial de novo and before commencement thereof. Terr. v. Fullerton, 16 Hawaii 526; Rex v Manner, 3 Hawaii 339; Com. v. McCluskey, 151 Mass. 488. 25 NE 72. (11) But after a verdict of manslaughter on an indictment for murder the right to enter a nolle prosequi ceases. Com. V. Wade, 17 Pick. (Mass.) 395.

37. Ala.-O'Brien v. State, 91 Ala. 25, 8 S 560; Walker v. State, 61 Ala. 30.

La.-State v. Paterno, 43 La. Ann.
514, 9 S 442; State v. Hornsby, 8
Rob. 583, 41 AmD 314; State v. Bugg,
6 Rob. 63.

Me.-State v. Smith, 67 Me. 328.
Mass.-Lizotte V. Dloska, 200
Mass. 327, 86 NE 774; Com. v. Mc-
Clusky, 151 Mass. 488, 25 NE 72;
Com. v. Scott, 121 Mass. 33; Com.
v. Tuck, 20 Pick. 356.

Miss. Clarke V. State, 23 Miss.

261.

N. H.-State v. Smith, 49 N. H.
155, 6 AmR 480.
Pa.-Com. V. Evans, 26 Pa. Co.

90.

[a] "Such is the constant practice. It may be that the indictment is defective and he may wish to procure another. He may discover that the evidence will turn out different from what he expected, and he may wish to vary the charge to make it conform to the proof. Or he may have good reasons for not wishing to prosecute at all. There may be innumerable causes for discontinuing the prosecution; of all of which he must judge, upon his official responsibility. In many cases, the discontinuance may operate to the prejudice of the defendant, but never to the injury of his legal rights. It is not to be presumed that this offcer will violate his duty or act oppressively." Com. v. Tuck, 20 Pick. (Mass.) 356, 365.

38. State v. Paterno, 43 La. Ann. 514, 9 S 442; and cases supra note 37. See supra § 363.

39. Lizotte v. Dloska, 200 Mass. 327, 86 NE 774.

40. U. S.-U. S. v. Shoemaker, 27 F. Cas. No. 16,279, 2 McLean 114. Ala.-State V. Kreps, 8 Ala.

951.

Ark.-Williams v. State, 42 Ark. 35; Lee v. State, 26 Ark. 260, 7 AmR 611.

112 NE 462.

Ind.-Joy v. State, 14 Ind. 139. La.-State v. Klock, 48 La. Ann. 140, 18 S 942; State v. Washington, 33 La. Ann. 1473; State v. Bugg, 6 Rob. 63.

Mich.-Peo. v. Kuhn, 67 Mich. 463, 35 NW 88.

Mo.-Ex p. Donaldson, 44 Mo.

149.

N. H.-State v. Smith, 49 N. H. 155, 6 AmR 480.

N. C.-State v. Thompson, 95 N. C. 596.

Oh.-Mount v. State, 14 Oh. 295, 45 AmD 542.

S. C.-State v. McKee, 17 S. C. L. 651, 21 AmD 499.

[a] In Connecticut and Massachusetts (1) the rule stated in the text seems to be subject to a slight modification. The rule deducible from the cases of this state seems to be that, when a jury has been sworn to try the issue and the trial has been commenced, the jeopardy to which defendant is exposed is held to have been begun and the prosecuting officer will not, pending the trial, when a verdict is demanded by the prisoner, be permitted to enter a nolle prosequi for the purpose of subjecting him to another trial for the same cause. State v. Garvey, 42 Conn. 232; Com. v. McCormick, 130 Mass. 61, 39 AmR 423; Com. v. Scott, 121 Mass. 33: Com. v. Kimball, 7 Gray (Mass.) 328; Com. v. Tuck, 20 Pick. (Mass.) 356; Com. v. Wade, 17 Pick. 395. (2) However, it is essential that a verdict should be demanded by defendant, and if he does not make such demand a nolle prosequi can be entered after the jury have been impaneled, even though he objects thereto. State v. Garvey, 42 Conn. 232; Com. v. Kimball, 7 Gray (Mass.) 328.

41. Williams v. Com.. 78 Ky. 93. But compare Wilson v. Com., 3 Bush (Ky.) 105 (holding that the dismissal of an indictment, even after the jury are sworn to try the case, should not operate as a bar to another indictment, on the ground that defendant was not, in a constitutional sense, acquitted or put in jeopardy).

[b] In Georgia (1) a nolle pros-
equi may, without the consent of
accused, be entered at any time be-
fore the case has been submitted to
the jury. Pen. Code § 982. (2) AY.) 93.

42. Ned v. State, 7 Port. (Ala.) 187; In re Rider, 3 City Hall Rec (N.

has been submitted to the jury,48 or after verdict,** the prosecuting officer cannot nol-pros the indictment or any count without the consent of defendant who is entitled to a verdict which will be a bar in other prosecutions for the same offense; and the fact that the prosecuting officer has the consent of the court does not in any way affect the operation of this rule.45 Under the rule that after the jury has been impaneled and sworn, accused once has been put in jeopardy,* 46 if, thereafter, a nolle prosequi is entered without defendant's consent he cannot be put upon trial again for the same offense, and if recommitted to jail to answer again to the charge of the same offense he is entitled to be discharged under a writ of habeas corpus. However, it has been held that the rule that the state's attorney or prosecuting officer cannot enter a nolle prosequi as to any count of the indictment without the consent of defendant, after the jury have been impaneled and sworn, does not prevent a nolle prosequi as to certain counts after a verdict of guilty on all the counts and a motion by defendant for a new trial.49

43.

44.

Grogan v. State, 44 Ala. 9. State v. Smith, 67 Me. 328. 45. Joy v. State, 14 Ind. 139. 46. Franklin v. State, 85 Ga. 570, 11 SE 876; Nolan v. State, 55 Ga. 521, 21 AmR 281; Reynolds v. State, 3 Ga. 53; Newsom v. State, 2 Ga. 60; Joy v. State, 14 Ind. 139.

47. Williams v. State, 42 Ark. 35; Reynolds v. State, 3 Ga. 53; Williams v. Com., 78 Ky. 93; Mount v. State, 14 Oh. 295, 45 AmD 542. And see cases supra this section.

48. State v. Washington, 33 La. Ann. 1473.

49. Peo. v. Brown, 273 Ill. 169, 112 NE 462. See infra § 788.

50. U. S.-U. S. v. Coolidge, 25 F. Cas. No. 14,858, 2 Gall. 364; U. S. v. Schumann, 27 F. Cas. No. 16,235, 2 Abb. 523, 7 Sawy. 439; U, S. v. Stowell, 27 F. Cas. No. 16,409, 2 Curt. 153; U. S. v. Watson, 28 F. Cas. No. 16,652, 7 Blatchf. 60.

Colo.-Peo. v. Lake County Dist. Ct., 23 Colo. 466, 48 P 500.

Ga.-Durham v. State, 9 Ga. 306; Reynolds v. State, 3 Ga. 53. But see Statham v. State, 41 Ga. 507, 511 (where the court said: "By the Act of 1870 it is expressly provided to the contrary. But even before that Act, although we are aware it has often been done, we know of no authority for it. The State is the party, and the Solicitor General only the agent to carry on the proceeding. He has not, and ought not to have unlimited power of prosecution, and great evils may result and have resulted from placing such a power in the hands of one man. whose acts are not done openly and with reasons publicly declared"). Hawaii-Rex V. Robertson, 6 Hawaii 718.

Ind. Halloran V. State, 80 Ind. 586.

La.-State v. Ayles, 120 La. 661, 45 S 540; State v. Frazier, 52 La. Ann. 1305, 27 S 799; State v. Moise, 48 La. Ann. 109, 18 S 943, 35 LRA 701; State v. Hornsby, 8 Rob. 583, 41 AmD 314; State v. Bugg, 6 Rob. 63.

Mass.-Com. V. Cain, 102 Mass. 487; Com. v. Tuck, 20 Pick. 356; Com. v. Andrews, 2 Mass. 409; Com. v. Wheeler, 2 Mass. 172.

N. H.-State v. Tufts, 56 N. H. 137.

N. Y.-Peo. v. McLeod, 1 Hill 377, 37 AmD 328, 25 Wend. 483, 572. N. C.-State v. Thompson, 10 N. C. 613.

Pa.-Com. v. Evans, 26 Pa. Co. 90. Porto Rico.-U. S. v. Merritt, 1 Porto Rico Fed. 203; U. S. v. Dun

48

[ 782] c. Leave of Court. At common law the matter of entering a nolle prosequi rests entirely within the discretion of the prosecuting officer, at all stages of a criminal prosecution before the jury are impaneled, and leave of court is not necessary; and by the weight of authority, this is still the rule in the absence of a change by statute.50 Leave of the court, however, sometimes is required expressly by statute,51 and in some states it has been held necessary, even in the absence of a statute, where the nolle prosequi is entered after the jury have been impaneled and sworn and before verdict,52 or after a verdict,53 or even before commencement of the trial.54 The court, in granting permission, will exercise its judicial discretion.55 In most cases the motion will be granted readily,56 and should not be refused unless the court has some knowledge that it is based upon an improper reason or a corrupt motive,57 or unless refusal is necessary in order to give the state time to protect itself from collusion.58 Of course, if the case appears a clear one for defendant, the court will not give permission, as he is entitled to a verdict of acquittal.59

lap, 1 Porto Rico Fed. 112.

S. C.-State v. Thomas, 75 S. C. 477, 55 SE 893; State v. McKee, 17 S. C. L. 651, 21 AmD 499.

W. Va.-Denham v. Robinson, 72 W. Va. 243, 247, 77 SE 970, 45 LRANS 1123, AnnCas1915D 997 [cit Cycl.

Eng-Reg. v. Allen, 1 B. & S. 850, 101 ECL 850, 121 Reprint 929, 1 Coke Litt. p 139b.

N. B.-Reg. v. Marshall, 31 N. B. 390.

"He alone is answerable for the exercise of his discretion in this 'respect. It is presumed that he will act under such a heavy sense of obligation for enforcement of the law and sensitive consciousness of important public duty that no wrongful act will be committed." Lizotte v. Dloska, 200 Mass. 327, 329, 86 NE 774.

51. Ga.-Statham v. State, 41 Ga. 507.

Ind.-State v. Morrison, 165 Ind. 461, 75 NE 968; Halloran v. State, 80 Ind. 586.

N. Y.-Lindsay v. Peo., 63 N. Y. 143; Peo. v. Bennett, 49 N. Y. 137; Peo. v. McLeod, 1 Hill 377, 37 AmD 328, 25 Wend. 483.

Pa.-Com. v. Evans, 26 Pa. Co. 90; Gallagher v. Franklin County, 5 Pa. Co. 431 (leave of court in writing).

Tex.-Wilson v. State, 69 Tex. Cr. 567, 154 SW 571; Williams v. State, 53 Tex. Cr. 396, 110 SW 63; Taylor v. State, (Cr.) 81 SW 299; Ex p. Gibson, 42 Tex. Cr. 653, 62 SW 755; Kelly v. State, (Cr.) 38 SW 39.

W. Va.-Denham v. Robinson, 72 W. Va. 243, 77 SE 970, 45 LRÁNS 1123, AnnCas1915D 997.

[a] Reason for rule.-(1) In some states, by statute, the prosecuting officer is required to file a statement of the reasons for entering a nolle prosequi. Com. v. Flynn, 161 Ky. 289, 170 SW 617: Tullis v. State, 41 Tex. Cr. 87, 52 SW 83; Kelly v. State, 36 Tex. Cr. 480, 38 SW 39. (2) Gen. St. p 185, providing that before the commonwealth's attorney can dismiss an indictment he shall file a statement setting forth his reasons, and an order shall be made on the record book, etc., is merely directory, and relates to cases where, as a result of dismissal defendant is discharged, and it is not improper to allow the commonwealth's attorney, pending a continuance. to dismiss the indictment, resubmit the case to the grand jury, and procure a new indictment, without the knowledge of defendant or his attorney, and without any rea

sons being entered of record. Dilger v. Com., 88 Ky. 550, 11 SW 651. [b] The consent of the court is conclusive upon the validity of a nolle prosequi which the court has allowed the solicitor-general to enter before putting accused on trial. Lascelles V. State, 90 Ga. 347, 16 SE 945, 35 AmSR 216 [aff 148 Ú. 8. 537, 13 SCt 897, 37 L. ed. 549].

[c] Not an exercise of pardoning power. Acts of the législature passing a statute limiting criminal prosecutions, and of a prosecuting attorney entering a nolle prosequi as to the whole or part of an offense, are not an exercise of the pardoning power. State v. Wear, 145 Mo. 162, 46 SW 1099.

52. Ga. Statham v. State, 41 Ga. 507; Durham v. State, 9 Ga. 306. Ky.-Wilson V. Com., 3 Bush

105.

La.-State v. Moise, 48 La. Ann. 109, 18 S 943, 35 LRA 701; State v. Hornsby, 8 Rob. 583, 41 AmD 314. N. H.-State v. Hodgkins, 42 N. H. 474.

N. J.-State v. Hickling, 45 N. J. L. 152. N. C.-State v. Moody, 69 N. C. 529.

Pa. Com. v. Stewart, 44 Pa. Super. 620; Com. V. Seymour, 2 Brewst. 567.

V.

Philippine.-U. S. Luciano, 2 Philippine 96; U. S. v. Valencia, 1 Philippine 642.

V.

Vt. State v. Roe, 12 Vt. 93; State v. I. S. S., 1 Tyler 178. W. Va.-Denham Robinson, 72 W. Va. 243, 77 SE 970, 45 LRANS 1123, AnnCas1915D 997.

And see cases supra note 51. 53. State v. Klock, 48 La. Ann. 140, 18 S 942.

54. Statham v. State, 41 Ga. 507; Rex V. Robertson, 6 Hawaii 718; Ex p. Donaldson, 44 Mo. 149; U. S. Merritt, 1 Porto Rico Fed. 203. 55. State v. Roe, 12 Vt. 93. 56.

V.

152.

State v. Hickling, 45 N. J. L. 57. State v. Moise, 48 La. Ann. 109, 18 S 943. 35 LRA 701; State v. Hornsby, 8 Rob. (La.) 583, 41 AmD 314; U. S. v. Merritt, 1 Porto Rico Fed. 203; U. S. v. Dunlap, 1 Porto Rico Fed. 112.

[a] Oppression. The court may interfere where the power is used oppressively. State V. Thompson, 10 N. C. 613.

58. U. S. v. Watson. 28 F. Cas. No. 16,652, 7 Blatchf. 60.

59. State v. Hornsby, 8 Rob. (La) 583, 41 AmD 314; State v. Roe, 12 Vt. 93.

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