Reinke, Cecil E

English

UND Scholarly Commons (University of North Dakota)

North Dakota Law Review Volume 33 Number 1 Article 7 1957 Attorney General - Common Law Powers - Power to Nol. Pros. Criminal Procedure Cecil E. Reinke Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Reinke, Cecil E. (1957) "Attorney General - Common Law Powers - Power to Nol. Pros. Criminal Procedure," North Dakota Law Review: Vol. 33 : No. 1 , Article 7. Available at: https://commons.und.edu/ndlr/vol33/iss1/7 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. NORTH DAKOTA LAW REVIEWRECENT CASESATrORNEY GENERAL - COMIMON LAw POWERS - POWER TO NOL. PROS.(RININAL PROCEEDING. - The Attorney General, intervening at the request ofthe states attorney, applied for a writ of mandamus to require the trial courtto vacate its order denying his motion of nolle prosequi and to set aside allpioceedings subsequent to such order. The Supreme Court of Illinois grantedthe writ, holding that the Attorney General's motion represented an exercise ofhis common law power, retained under the Illinois Constitution, to nol. pros.an indictment at any stage before impanelling of a jury. People ex rel.Castle v. Daniels, 132 N.E.2d 507 (Ill. 1956).In most states the Attorney General has all the powers and duties given tothe officer with that title under common law unless restricted by statute.'In a minority of jurisdictions, including North Dakota, the powers of the At-turney General are solely statutory.2 Illinois courts have said that since hisoffice is constitutionally created as a part of the executive department, neitherthe legislature nor the courts can deprive him of authority, although they mayadd thereto.3 Among the powers of the Attorney General at common law wasthe right to nolle prosequi an indictment at all stages of a criminal prosecu-tion before the jury was impanelled or before the trial of the case. 4 Thispower was not subject to review by either trial or appellate courts.5 An ex-ception to this rule was that the action could not be capricious or vexatious. 6The instant case would not come within this exception.;In some jurisdictions the Attorney General may supersede the states attor-ney and conduct such criminal prosecutions as he sees fit.8 But in Illinoisand other jurisdictions the Attorney General cannot supplant or control theduties of the states attorney although he may intervene in prosecutions.9 Theoffice of states attorney, unlike that of the Attorney General, carries only thoseduties and powers prescribed by statute.") Among the duties of the states1. See State v. Karston, 208 Ark. 703, 187 S.W.2d 327 (1945); Fergus v. Russel,270 II. 304, 110 N.E. 130 (1915); State v. Robinson, 101 Minn. 277, 112 N.W. 269(1907); State v. Public Service Co., 283 P.2d 594 (Mont. 1955). Shepperd, CommonLaw Powers and Duties of the Attorney General, 7 Baylor L. Rev. 1 (1955).2. See N. D. Rev. Code 1 1-0106 (1943) "In this state there is no common law in anycase where the law is declared by the code." See Ford Motor Co. v. Dept. of Treasury ofState of Indiana, 323 U. S. 459 (1944); Shute v. Frohmiller, 53 Ariz. 483, 90 P.2d 998(1939); Cosson v. Bradshaw, 160 Iowa 296, 141 N.W. 1062 (1939).3. Fergus v. Russel, 270 II1. 304, 110 N.E. 130 (1915).4. See Regina v. Allen, 1 Best & S. 850, 121 Eng. Rep. 929 (1862).5. See Regina v. Allen, supra.-6. King v. Webb, 3 Burr 1468, 97 Eng. Rep. 931 (1764).7. Cf. People ex rel. Elliot v. Govelli, 415 III. 79, 112 N.E.2d 156 (1953).8. See State v. Finch, 128 Kan. 665, 280 Pac. 910 (1929); State v. Robinson, 101Minn. 277, 112 N.W. 269 (1907); Appeal of Margiotti, 365 Pa. 330, 75 A.2d 465 (1950);see also 60 Yale L. J. 559 (1951) (This result has its roots in the fact that at commonlaw the attorney general could supersede prosecuting attorneys, but it should be noted thatthe present relationship between attorney general and local prosecuting attorney is quitedifferent from that which existed in eighteenth century England. In England publicplosecutors were appointed by the attorney general, now they are elected officials.)9. People v. Flynn, 375 Ill. 366, 31 N.E.2d 591 (1940); State v. Ehrlick, 64 W. Va.700 64 S.E. 935, 936 (1909) (dictum); Lawless, The Relationship Between the AttorneyGeneral and the State's Attorney in Illinois, 1949 U. Ill. L. Forum 507.. (It should benoted that power to 'intervene' is simply the power to act in conjunction with districtattorneys; power to 'supersede' is the power to dismiss the district attorney from thatprocerding entirely. )10. Withee v. Lane Fisheries Co., 120 Me. 121, 113 At. 22, 23 (1921) (dictum);Capitd Stages v. State, 157 Miss. 576, 128 So. 759, 763 (1921) (dictum).[VOL. 33RECENT CASESattorney is the prosecution of all criminal cases within his county." It hasbeen clearly held that a states attorney can nol. pros. only with the consent ofthe court, and that the court's discretion in this regard will not be reviewedby mandamus." In the instant case the state's attorney had been unsuccess-ful in an attempt to nol. pros. He then requested the Attorney General toetner the case and move to nol. pros. the indictment.A West Virginia case, Denham v. Robinson,1: faced with an identical sit-uation denied the power of the prosecuting attorney and-the Attorney Generalto nol. pros. without the consent of the court holding that where the AttorneyGeneral undertakes to exercise or control powers and duties of the prosecutingattorneys, he is limited by the same rules of practice that control them. It issubmitted that the latter case forms the more logical rule. The states attorney,who can nol. pros. only with consent of the trial court, should not be allowedto do indirectly, that which he cannot do directly.CECIL E. REINKE.CONSTITUTIONAL LAW - SEARCHES AND SEIzuREs - ENJOINING TESTI-MONY OF FEDERAL OFFICER IN STATE PROSECUTION. - Plaintiff sued ina federal district court to enjoin a federal narcotics agent from testifyingagainst him in a state prosecution for violation of its narcotics law as toevidence determined in a prior federal criminal prosecution to have beenillegally obtained. The former prosecution had been dismissed on motion ofthe government because of the inadmissability of the evidence. The Court ofAppeals affirmed the denial by the lower court of the relief sought. On certi-orari the Supreme Court, with four judges dissenting, reversed the ruling ofthe Court of Appeals and held that the agent was subject to injunction. Reav. United States, 350 U. S. 214 (1956).Since Weeks v. United States, federal courts have denied admission toillegally obtained evidence.2 Prior to that case it was admissable.3 This pro-hibition, liowever, does not bar all illegally obtained evidence. If the evidencewas not obtained by federal officers, but by strangers4 or state officers, 5 it maybe admitted. Where it was obtained by federal officers through an illegalsearch and seizure of a third person's property it may also be admitted. 6 Theobjection to the evidence must be made promptly upon discovery of the factthat it was obtained by illegal means, or else the right to object is deemed to11. Il. Ann Stat. c. 14 § 5 (1951). "The duty of each state's attorney shall be tocommence and prosecute all . . . indictments . . . in any court of record in his countyin which the people of the state or county may be concerned."12. People cx rel. Hoyne v. Newcomer, 284 Ill. 315, 120 N.E. 244 (1918).13. 72 W. Va. 243, 77 S.E. 970 (1913).1. 232 U. S. 383 (1914).2. See Amos v. United States, 255 U. S. 313 (1921); Gouled v. United States, 255U. S. 298 (1921); Silverthrone Lumber Co. v. United States, 251 U. S. 385 (1920).3. Adams v. New York, 192 U. S. 585 (1904); Hardesty v. United States, 164Fed. 420 (6th Cir. 1908).4. Burdeau v. McDowell, 256 U. S. 465 (1920); see Pederson v. United States, 271Fed. 187 (2d Cir. 1921).5. Weeks v. United States, 232 U. S. 383 (1914); Rice v. United States, 251 Fed.778 (1st Cir. 1918); United States v. O'Dowd, 273 Fed. 600 (N. D. Ohio 1921); UnitedStates v. Burnside, 273 Fed: 603 (W. D. Wis. 1921).6. Anderson v. United States, 273 Fed. 20 (8th Cir. 1921); Haywood v. UnitedStates, 268 Fed. 795 (7th Cir. 1920), cert. denied, 256 U. S. 689 (1921); Tsuie Sheev. Backus, 243 Fed. 551 (9th Cir. 1917).1957]

Attorney General - Common Law Powers - Power to Nol. Pros. Criminal Procedure

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Attorney General - Common Law Powers - Power to Nol. Pros. Criminal Procedure

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