Opinion
No. 4758.
Argued June 3, 1959.
Decided July 10, 1959.
1. The superintending control over inferior courts by the Supreme Court under RSA 490:4 is comprehensive and the court will assume jurisdiction "to prevent and correct errors and abuses" when warranted by the record.
2. Certiorari will not be granted where an adequate remedy is available on appeal.
3. A petition for certiorari by a respondent seeking to set aside a conviction in a municipal court, alleging disqualification of the justice, was denied since the respondent on his appeal from that judgment was entitled to a trial de novo in the Superior Court.
4. Where the Attorney General in the exercise of his discretion elected to appear for a state enforcement officer in a private prosecution against him for assault upon the complainant he thereby abandoned the role of prosecutor and with it the power to enter a nolle prosequi in such proceedings.
PETITION, for writ of certiorari and other relief in which petitioner, Stanley M. Brown, of Manchester, makes in substance the following allegations:
On May 9, 1959, at about 2:00 o'clock in the morning in the town of Sanbornton one Harold Knowlton, a state trooper, without lawful excuse, did commit an assault upon him and beat him about the head, face, arms and shoulders with his fists.
The petitioner was detained and taken to Laconia police station and later to the Belknap County jail. At about 3:00 o'clock a.m. a complaint and warrant was served upon him charging assault on said Knowlton.
On May 15, petitioner served on Knowlton three criminal complaints returnable to the Laconia municipal court charging him with making a brawl in a public street, assault and abuse of criminal process.
On May 16, in the Belmont municipal court, petitioner was served with two other complaints charging him with resisting arrest and obstructing a police officer.
On May 16, trial was held in the Belmont municipal court on the complaints against Brown. After the State's case was completed, the court, apparently under the assumption that the case was over, made certain comments on the record indicating prejudgment of the case against the petitioner. The petitioner declined to proceed with his evidence on the ground that the court by such comment had disqualified himself. Brown was adjudged guilty and entered an appeal to the Superior Court.
Thereafter, on May 19 or 20, Warren Waters, Deputy Attorney General, entered his appearance as defense counsel in the complaints brought against Knowlton and moved for a continuance of two weeks in order to prepare a defense. On May 21, said Waters, acting under the orders of the Attorney General, entered a "nolle prosequi" on each of the complaints against Knowlton.
Stanley M. Brown, pro se and Nighswander, Lord Bownes (Mr. Brown and Mr. Bownes orally), for the petitioner.
Louis C. Wyman, Attorney General (by brief and orally), for the State and the defendant.
RSA 490:4 provides: "The supreme court shall have general superintendence of all courts of inferior jurisdiction to prevent and correct errors and abuses . . . may issue writs of certiorari, prohibition, habeas corpus, and all other writs and processes to other courts . . . and shall do and perform all the duties reasonably requisite and necessary to be done by a court of. . . general superintendence of inferior courts."
The superintending control over inferior courts by this court is comprehensive. See Boody v. Watson, 64 N.H. 162. The record warrants the assumption of jurisdiction.
The comments of the justice of the Belmont municipal court concerning Brown at the close of the State's evidence were sufficient to disqualify him. Whether his views concerning the petitioner were preconceived or formulated on the basis of the evidence and expressed at a time when the court assumed the evidence was closed is not revealed by the record. Giving the municipal court the benefit of the doubt, and because the petitioner on his appeal from that judgment is entitled to a trial de novo in Superior Court, his prayer for relief to vacate the judgment in Belmont municipal court is denied. Certiorari will not be granted where an adequate remedy is available on appeal. Wiseman v. Manchester, 96 N.H. 50.
We have decided that the authority of the Attorney General to enter a nolle prosequi is clear and where "the Attorney General has concluded in his discretion that exoneration of an official by public trial rather than by an entry of a nolle prosequi is in the public interest, there can be no reason to question his authority to appear for the official." State v. Swift, 101 N.H. 340, 343.
However, the facts in this case differ from those in Swift in that here the Attorney General elected to assume the role of prosecutor and defense counsel simultaneously. Having in his discretion elected to appear for the defendant Knowlton, the Attorney General might not thereafter appear for the State as the opposing party, or undertake to represent its adverse interests. See Hines v. Donovan, 101 N.H. 239, 244. It follows that he disqualified himself to exercise his power to nol pros the action, and the entry of nol pros should be stricken from the docket. People v. Newcomer, 284 Ill. 315.
Petitioner Brown followed "the not uncommon practice here of instituting a private prosecution for assault." State v. Gratta, 101 N.H. 87. The evidence submitted in the form of depositions of two potential witnesses indicates the petitioner had at least probable cause to institute the complaints against Knowlton. We are of the view that he should not be denied the right to pursue these to final judgment. State v. Tufts, 56 N.H. 137.
State's counsel in these proceedings undertook to represent the defendant Knowlton and the prosecution. By so doing he abandoned the role of prosecutor and with it, the powers inherent in the office.
Certiorari is granted as to the cases in the Laconia municipal court and it is therefore ordered that the nolle prosequi entered in the actions of State, by Stanley M. Brown v. Knowlton be stricken and the cases restored to the docket for trial in the Laconia municipal court. Other prayers of the petition for relief are denied.
So ordered.
All concurred.