State v. Champeau

52 Vt. 313

• Court: Supreme Court of Vermont
• Decided: January 15, 1880
• Status: Published

Opinion

The opinion of the court was delivered by

Veazey, J.

The method of-drawing the three jurors named in the plea was not strictly according to the statute. It seems to have been an attempted improvement on the statutory method. The officers engaged in it will serve the public better by adhering to the statutes in the discharge of this public duty, than by deviations therefi’om with a view to improvements, or with any other view. But it appears that the persons drawn in this case were among those regularly chosen, and it does not appear but that the drawing was fair, or that the persons drawn were not proper persons to be drawn, or that any wrong or injury has resulted, or that there was any fraud or collusion. We therefore think the method of drawing was not such an irregularity as to vitiate the indictment.

As to the effect of a nolle prosequi. It seems the rule is not the same in all the states. In New Hampshire it is held that a plea of autrefois acquit, made by a defendant in due form indicted for a crime or misdemeanor, alleging that he has formerly been tried and acquitted of the offense, would be good. But to be a bar the acquittal must have been by trial. There must be an acquittal of the offense charged in law and in fact, by a verdict of a jury, on a valid indictment, or by some competent tribunal that has jurisdiction of the offense. State v. Hodgkins, 42 N. H. 474. In North Carolina a nolle prosequi does not amount to an acquittal of the respondent, but he may be again prosecuted for the same offense. State v. Thornton, 13 Ired. 256. The same has been plainly recognized as the law of this State where the court has had occasion to allude to the question. See State v. I. S. S., 1 Tyl. 178; State v. Roe, 12 Vt. 93, 109. In the latter case Collamer, J., says : “ The right of the government attorney to enter a nolle prosequi is suspended when trial commences to the jury. After that, the power is to be exercised only by permission of the court. The court in granting permission will exercise its judicial discretion. If the case appear a clear one for the respondent, the court will not give the permission, as he is entitled to a verdict of acquittal. If the case appear against the accused, he can have no objection to a nolle prosequi.”

The judges holding the present term understand that it has always been the universal view and practice of the judges who have administered the law in the County Courts in this State, that a nolle prosequi entered at any stage of a trial before verdict by order of the court was not a bar to another indictment for the same offense. This rule, so long recognized as the law and followed as a rule of practice in the County Courts, has our approval. Neither is it peculiar to this State. See cases supra; also 1 Whart. Crim. Law, ss. 513, 573, and cases cited in notes; Hassell v. Nutt, 14 Texas, 260; People v. Goodwin, 18 Johns. 187 ; Cmmonwealth v. Wheeler, 2 Mass. 172.

The result is that the respondent’s exceptions are not sustained, and she takes nothing thereby.