State v. Haskett

Court of Appeals of South Carolina

State v. Haskett

21 S.C.L. 95

DecidedOctober 15, 1835

StatusPublished

This text of 21 S.C.L. 95 (State v. Haskett) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Haskett, 21 S.C.L. 95 (S.C. Ct. App. 1835).

Pincite

Opinion

Curia, per

Evans, J.

The defendant entered into a recognizance, “ personally to appear before the next Court of Sessions,” to answer to a bill of indictment for an assault on one Cunningham. At the subsequent January Term he was indicted. The bill was traversed by B. F. Hunt, At a subsequent term, viz. in October, 1835, the Attorney General entered a nol pros, on the indictment, and gave out another. A motion was made on the part of the bail, Mr. Ker Boyce, to discharge him from his liability, on the allegation that the defendant had performed the condition of the recognizance. This motion was granted by Judge Bay, the presiding Judge, and the question submitted to this court, is, whether that decision was right. The undertaking of t'he security, Boyce, was, that his principal should personally appear, and abide the final determination of the case. His traverse by an attorney is no more a performance of the undertaking, than an appearance or plea would be, in a civil action. But it seems to have been thought by the presiding judge, that the nol pros. was an end of the case, as a nonsuit would be in a civil action. This is a mistake. In a civil case a non-suit vacates all the previous proceedings, and the plaintiff must begin de novo. In a criminal case, the party i? brought into court by the warrant and Recognizance. The indictment i? one of the stages of the proceedings, and a discharge of that, by nol pros. does not impair the previous proceedings. It is competent, and every day’s practice, for the solicitor or attorney general to enter a nol pros, on one indictment, and to prefer another; and the effect of this is only to vary the form of the charge, and neither entitles the party to a discharge from custody, nor to have an exoneration entered on his recognizance. In actions for malicious prosecution, this question has frequently arisen, and it has been often held, that a nol pros, is not an end of the case, but that the attorney general may prefer a new bill. 1 am, therefore, of opinion that the circuit decision was wrong, and it is hereby ordered to be reversed.

DeSaussure, Harper, Butler, O’Neall, and Earle, CC. and JJ, concurred.

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Curia, per

Evans, J.

The defendant entered into a recognizance, “ personally to appear before the next Court of Sessions,” to answer to a bill of indictment for an assault on one Cunningham. At the subsequent January Term he was indicted. The bill was traversed by B. F. Hunt, At a subsequent term, viz. in October, 1835, the Attorney General entered a nol pros, on the indictment, and gave out another. A motion was made on the part of the bail, Mr. Ker Boyce, to discharge him from his liability, on the allegation that the defendant had performed the condition of the recognizance. This motion was granted by Judge Bay, the presiding Judge, and the question submitted to this court, is, whether that decision was right. The undertaking of t'he security, Boyce, was, that his principal should personally appear, and abide the final determination of the case. His traverse by an attorney is no more a performance of the undertaking, than an appearance or plea would be, in a civil action. But it seems to have been thought by the presiding judge, that the nol pros. was an end of the case, as a nonsuit would be in a civil action. This is a mistake. In a civil case a non-suit vacates all the previous proceedings, and the plaintiff must begin de novo. In a criminal case, the party i? brought into court by the warrant and Recognizance. The indictment i? one of the stages of the proceedings, and a discharge of that, by nol pros. does not impair the previous proceedings. It is competent, and every day’s practice, for the solicitor or attorney general to enter a nol pros, on one indictment, and to prefer another; and the effect of this is only to vary the form of the charge, and neither entitles the party to a discharge from custody, nor to have an exoneration entered on his recognizance. In actions for malicious prosecution, this question has frequently arisen, and it has been often held, that a nol pros, is not an end of the case, but that the attorney general may prefer a new bill. 1 am, therefore, of opinion that the circuit decision was wrong, and it is hereby ordered to be reversed.

DeSaussure, Harper, Butler, O’Neall, and Earle, CC. and JJ, concurred.

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Bluebook (online)

21 S.C.L. 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-haskett-scctapp-1835.