State v. Thompson, 10 N.C. 613, 3 Hawks 613 (1825)

June 1825 · Supreme Court of North Carolina

10 N.C. 613, 3 Hawks 613

State v. Thompson.

From Wake.

The Attorney General has a discretionary power to enter a nolle prose« gilt, for the proper exercise of which he is responsible; the Court will not interfere unless the power be oppressively used. After entering a nol. pros, when a cause is called for trial, he may issue a capias returnable to the next term upon the same indictment.

The defendant was indicted for permitting his negro slave to hire his own time, and when the cause was regularly called for trial before Norwood, Judge, the defendant was ready and urged for a trial; the Attorney Genera) directed a nolle prosequi to be entered in the case without assigning any reason therefor; and after the nol. pros, was entered, the Attorney General moved for a capias against the defendant, returnable to the next term of this Court, which was refused by the Court, whereupon the Attorney General appealed,

Taylor, Chief Justice.

It seems, from the authorities cited, that the Attorney General has a discretionary power to enter a nolle prosequi, for the proper exercise of which he is responsible. We know of no case where the Court has interfered with the exercise of this power, though they certainly would do so if it were oppressively used. As to the directing another capias to issue returnable to the next term, the authorities assert that such process may be awarded upon the same indictment. (6 Mod. 261. Com. Dig. “ Indictment B.” 1 Chitty C. L. 480.) We therefore think that it should have been directed in this case.

By the Court, Judgment reversed.