Summary
referring to private prosecutions as "not uncommon"
Summary of this case from Frese v. MacDonaldOpinion
No. 4570.
Argued June 4, 1957.
Decided June 28, 1957.
1. In a private prosecution for assault before a municipal court which resulted in a conviction and the imposition of a fine inuring to the benefit of the town, witnesses who were summoned and testified for the prosecution were held entitled to the witness fees provided by statute (RSA 516:16).
2. The Attorney General and county solicitors have the power to enter a nolle prosequi in a private prosecution of a criminal offense when the prosecution is unwarranted.
COMPLAINT, for assault. The complainant was represented by Thomas E. Flynn, Jr., Esq. of Portsmouth who was retained by her individually. Robert A. Shaines, Esq. appeared for the defendant. The defendant pleaded not guilty and after trial was found guilty and fined $10 which she paid.
Two witnesses were summoned and testified for the prosecution. The attorney for the complainant moved that their witness fees be paid by the Court. This motion was denied subject to exception.
Transferred by Perkins, J.
Thomas E. Flynn, Jr. and Francis J. Riordan (Mr. Flynn orally), for the State.
Robert A. Shaines for the defendant, furnished no brief.
The complainant followed the not uncommon practice here of instituting a private prosecution for assault. The fine imposed inured to the benefit of the town. RSA 618:2. The practice of pursuing private prosecutions at public expense was disapproved of by this court as far back as 1827 when the court said in Waldron v. Tuttle, 4 N.H. 149, 151, "If prosecutions could be commenced and pursued at the public expense by individuals whenever they saw fit, the inevitable consequence would be that the county expenses would be greatly augmented, the worst species of litigation be encouraged, and the means which the law affords to bring offenders to justice be perverted to the worst purposes."
However justified the fears of the court at that time may have been that malicious and vexatious prosecutions would follow, complainants in meritorious cases would be denied simple justice, if upon a conviction of the wrongdoer, witness fees could not be allowed as in state-sponsored prosecutions. The reluctance of the public to participate in criminal trials was the subject of comment by the Judicial Council in recommending adoption of what is now RSA 592:13. Third Report Judicial Council (1950) pp. 30, 60. This section expressly provides that "Any person who testifies as a witness in a municipal or superior court for the State shall be paid the witness fees provided by [RSA 516:16]."
If at some future time the public is faced with an epidemic of unwarranted prosecutions the Attorney General and county solicitors have the power to enter a nolle prosequi. State v. Smith, 49 N.H. 155, 157.
We are of the opinion that a "private" prosecution was intended to stand no differently with respect to allowance of witness fees than one instituted by an enforcement official in behalf of a town, county or the State. See RSA 592:14.
Exception sustained.
All concurred.