Commonwealth v. McClusky
Massachusetts Supreme Judicial Court
Complaint to the First District Court of Eastern Middle-sex, for embezzlement. The defendant was tried and found guilty in the district court, and appealed to the Superior Court. After the complaint was entered in that court, and before the jury were impanelled, the district attorney entered a nolle prosequi.
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Complaint to the First District Court of Eastern Middle-sex, for embezzlement. The defendant was tried and found guilty in the district court, and appealed to the Superior Court. After the complaint was entered in that court, and before the jury were impanelled, the district attorney entered a nolle prosequi. The defendant thereupon filed a motion, in which he objected to the entry of the nolle prosequi, and asked to be “ discharged from this complaint,” and “ from further answering to the charge contained in this complaint.” Thompson, J. overruled the motion, and refused to order the…
1Opinion of the CourtC. Allen, J.
It is obvious that the defendant was put in peril by his trial in the district court, and while that peril continued, that is, during the trial in that court, it may be assumed that the refusal to prosecute further would have amounted to an acquittal. Commonwealth v. McCormick, 130 Mass. 61. Commonwealth v. Hart, 149 Mass. 7. But the defendant by his appeal from the judgment of the district court has availed himself of his right to have the trial in that court go for nothing, and to be tried anew in the Superior Court. By availing himself of this right, he placed himself in the sarde position…
2Cases cited11 opinions
- Commonwealth v. John Dowdican's BailMassachusetts Supreme Judicial Court · 1874
- Commonwealth v. HartMassachusetts Supreme Judicial Court · 1889
- Woodworth v. MillsWisconsin Supreme Court · 1884
- Commonwealth v. McCormickMassachusetts Supreme Judicial Court · 1881
- Commonwealth v. BressantMassachusetts Supreme Judicial Court · 1879
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3Cited by5 opinions
- Luby v. BennettWisconsin Supreme Court · 1901
- King v. JohnstonWisconsin Supreme Court · 1892
- Lawrence v. ClearyWisconsin Supreme Court · 1894
- Mitchell v. DonanskiSupreme Court of Rhode Island · 1906
- Territory of Hawaii v. FullertonHawaii Supreme Court · 1905