Opinion
(June Term, 1840.)
After a motion to quash an indictment containing two counts, one of which is defective, the officer prosecuting for the State may enter a nolle prosequi as to the defective count, which will remove the grounds for the motion to quash, and leave the defendant to be tried upon the charge contained in the good count.
THE defendants were charged in an indictment containing two counts. In the first count they were alleged to have feloniously taken and carried away a bar of iron, of the value of 50 cents; and in the second, to have feloniously and unlawfully received of a person to the jurors unknown a bar of iron of the value of 50 cents, well knowing the said bar of iron to have been feloniously stolen. contrary to the statute, etc. After pleading not guilty, the defendants, at CABARRUS, on the last Fall Circuit, before Dick, J., moved to quash the indictment. Before the motion was decided by the court, the solicitor for the State entered a nolle prosequi as to the second count in the indictment; but the court, notwithstanding, quashed the indictment, and the solicitor thereupon appealed.
The Attorney-General for the State.
Barringer for defendants.
In S. v. Thompson, 10 N.C. 613, this Court decided that the Attorney-General has a discretionary power to enter a nolle prosequi, for the proper exercise of which he is responsible. The Court never has interfered with the exercise of this power, though they certainly would do so if it were oppressively used. In Commonwealth v. Wheeler, 2 Mass. 172, Parsons, C. J., said that the power of entering a nolle prosequi is to be exercised at the discretion of the Attorney-General, who prosecutes for the Government, and for its exercise he alone is responsible. Lord Holt to the same effect, 6 Mod., 262. If the Attorney-General can enter a nolle prosequi to the whole indictment, he, in analogy to the practice in civil (60) proceedings, must have the power to enter it to any count in the indictment; for each count should charge the defendants as if they had committed a distinct offense. 1 Chitty Cr. Law, 249, 479. The defendants having been discharged by the nolle prosequi from observing their day in court on the second count, they then stood charged on the first count only, which is a good and sufficient indictment for larceny, and there was no ground for the court to quash. We think the judgment must be reversed, and the defendants directed to be put upon their trial.
PER CURIAM. Reversed.
NOTE. — A nol. pros. cannot be taken without the assent of the court. S. v. Moody, 69 N.C. 531; S. v. Conly, 130 N.C. 684.