Opinion
No. 5515.
Argued December 20, 1968.
Decided June 30, 1969.
1. The authority of the Attorney General to enter a nolle prosequi in advance of trial is firmly established and is unrestricted by statute or rule of court.
2. The entry of nolle prosequi by the Attorney General operates to discharge an indictment, so that the case is no longer pending.
On March 26, 1964 the grand jury returned an indictment charging the defendant with the murder of Sandra Valade, a minor, on February 1, 1960. The defendant was then under indictment for the murder of Pamela Mason, and in April 1964 counsel were appointed to represent him in all cases. He was arraigned on the Valade indictment on August 31, 1964, and went to trial on the Mason indictments on May 17, 1965. See No. 5514, State v. Coolidge, 109 N.H. 403.
On July 13, 1965 the defendant sought dismissal of the Valade indictment upon the ground, among others, that his constitutional right to a speedy trial had been violated. On July 29, 1965 the motion was denied by Griffith, J., subject to exception, but the State was ordered "to indicate on or before August 15, 1965 whether they propose to try this case." On August 16, 1965 the Attorney General filed a nolle prosequi. Thereafter on August 23, 1965, the defendant's motion to dismiss the indictment notwithstanding the nol pross was denied by the Presiding Justice, subject to exception, upon the ground that the "Case [was] no longer pending."
Reserved and transferred upon the defendant's exceptions.
Alexander J. Kalinski, special counsel (by brief and orally), for the State.
Matthias J. Reynolds, John A. Graf, and Robert L. Chiesa (by brief and orally), for the defendant.
In this jurisdiction, the authority of the Attorney General to enter a nolle prosequi in advance of trial is firmly established. State v. Swift, 101 N.H. 340, 343; State v. Lavallee, 104 N.H. 443, 446. Nor is it restricted by statute or rule of court. State v. Smith, 49 N.H. 155. Cf. Federal Rules of Criminal Procedure, Rule 48 (a).
Klopfer v. North Carolina, 386 U.S. 213, relied upon by the defendant in support of its "motion to dismiss notwithstanding the nol pross," requires no different conclusion. The entry in that case of "nolle prosequi with leave," under the North Carolina practice did not operate to discharge the indictment, but permitted it to be reinstated upon the prosecutor's application. Hence the pendency of the indictment was held to deny the petitioner in the case the right to speedy trial guaranteed by the Constitution. Id., 222. See also, Commonwealth v. Gant, 213 Pa. Super. 427.
Under our practice, the entry of nolle prosequi operated to discharge the indictment, so that the case is no longer pending, as the Trial Court correctly ruled. See Lewis v. United States, 216 U.S. 611; Parr v. United States, 351 U.S. 513, 517. Other issues briefed by the defendant thus require no consideration.
Exceptions overruled.