
    DRINKARD vs. THE STATE.
    1. When an indictment is withdrawn from the docket, “on motion of the solicitor, the leave of the court being first had, with permission to reinstate it if necessary,” and no other step is taken in the ease for more than two years after-wards, the cause is discontinued.
    Ekeor to the Circuit Court of Chambers.
    Tried before the Hon. E. Pickens.
    Bioe, for plaintiff in error.
    1. A prosecution by indictment is a suit in which the State is plaintiff, and the accused is the defendant. If such suit was not commenced before the indictment was found, the finding of the indictment and its return into the court by the grand jury is the commencement of the suit, whether a capias issues or not; or whether the capias issued is returned executed or not executed.
    The mere neglect of the clerk to docket it cannot operate a discontinuance of such suit. Nor can the mere neglect or mere passiveness of any officer produce such a result. But where the solicitor, by leave of the court, actually interferes with its pendency on the docket, and its progress, and takes it off the docket, withdraws it, and files it, and keeps it off tbe docket for more than a term, such active and unlawful interference amounts in law to a discontinuance or abandonment of the prosecution. Clay’s Dig. 460, § 2.
    2. The rights of a defendant in a civil case cannot be greater than those of a defendant in a criminal case. Nor can the State, in a prosecution by indictment, claim an exemption from the consequences of its own unlawful interference with the progress of the suit, in any case where a plaintiff in a civil suit could not claim like exemption. The State, in this respect, possesses no exclusive privileges; and wherever the interference of a plaintiff in a civil suit would be construed as working a discontinuance or abandonment of his suit, the like interference by the State, by leave of the court, with its own prosecution, will be deemed a discontinuance or abandonment of the prosecution. Suppose a plaintiff in a civil suit had actuall}'- done with his suit what the solicitor by leave of court did with this indictment, would it not have been a clear case of discontinuance or abandonment of the suit ? 6 Oomyn’s Dig. marginal page 266 (W. 1); Clay’s Dig. 342, § 162, which shows that those causes only “ remaining on the doclcet of any court at the rising thereof shall be continued over for trial at the next succeeding term.” Of course, those causes which are taJcen off the docket are discontinued.— Kennon v. Bell, Minor’s Bep. 98; State v. Blackwell, 9 Ala-Bep. 79.
    Ashlock v. Commonwealth, 7 B. Monroe, 44, may be correct in Kentucky, where they have no such statutes as ours bearing on the subject; but it is insisted that it is not the law here. It will not do to admit the power in a solicitor by leave of court to withdraw a case from the docket '■'■with have to reinstate it if necessary." If this power exists in one criminal case, it exists in all; and indictments for- the highest offences may be kept in this state of “ suspended animation” for many years, until the witnesses for the defence have all died, and then reinstated, greatly to the subversion of justice* and the oppression of the innocent. The statute of limitations in such cases ceases to be a statute of repose.
    Discontinuance is good ground for reversal. Givens v. Bobbins & Pointer, 5 Ala. Bep. 676.
    
      It could not have been pleaded to tbe indictment, nor was it necessary to plead it; it comes up on tbe record.
    Tbe entry of a nolle prosequi is “ a discharge as to the indictment.” Tbis was tbe decision of all tbe judges, except tbe chief justice (Holt) wbo intimated a different opinion, in Goddard v. Smith, 1 Salkeld, 21; Commonwealth v. Wheeler, 2 Mass. Rep. 172; State v. Blackwell, 9 Ala. Rep. 79.
    Tbe effect of a nolle prosequi or discontinuance in a criminal case cannot be cured by any thing occurring afterwards, because it is “ a discharge of the indictment,” and there is no statute of jeofails as to proceedings in criminal cases.
    Tbe case cited from 7 B. Monroe shows that a nolle prosequi entered, with express leave of court to reinstate, may not be attended with such an effect; but tbe leave of court to reinstate cannot alter tbe effect, unless tbe defendant agrees at tbe time of tbe nolle prosequi, that tbe indictment may be reinstated, and therefore tbe case in 7 B. Monroe is, to tbis extent, not tbe law of Alabama.
    Tbe whole policy of our State and tbe nature of our institutions demonstrate, that it never was tbe design of tbe legislative tribunals to invest or arm a solicitor or a court with tbe power to file an indictment, and keep it off tbe docket at their mere pleasure, and to reinstate and try it when it suited their whim or caprice. “A speedy public trial” is expressly guaranteed by tbe tenth section of our bill of rights, and tbis right is inconsistent with tbis filing right claimed for tbe State. If tbe State can file and then reinstate, at pleasure, when or bow can the defendant get, tbe case back on tbe docket, if tbe court and solicitor do not wish it back, or are not ready to put it back?
    M. A. BALDWIN, Attorney General, for tbe State.
    1. By tbe common law, tbe Attorney Géneral alone bad tbe power to discharge an indictment, without acquittal, and tbis was by nolle prosequi; and in that even be might issue other process upon the same indictment. Com. v. Wheeler, 2 Mass. 174; Tbe State v. Fleming, 7 Humph. 152; Tbe State v. McNeil, 3 Hawks, 183; Goddard v. Smith, 6 Mod. Rep. [261]; 4 Com. Dig. Indictment (K), 698.; 1 Chitty Or. law, 480; 1 Salk. 21; Tbe State v. Thomson, 3 Hawks, 613.
    
      2. But admit tbat a nolle prosequi once entered bars any other proceeding on the same indictment.- No prosecuting attorney bas tbe right to enter a nolle prosequi, or otherwise discontinue an indictment, except by leave of the court. Clay’s ■ Dig. 460, § 2. Before a nolle prosequi or a discontinuance can be pleaded by a defendant, must not the record show that a nolle prosequi, or “ a declaration that the State will proceed no further,” and that by the consent of the court, was entered? Without this, the indictment is not discontinued, and the indictment stood continued by operation of law. The clerk should have placed it upon the docket, as “ leave to withdraw and file," by consent of court, was not leave to enter a nolle prosequi. The failure of clerk to place the indictment upon the docket did not amount to a discontinuance. Wiswallv. Cliddon, 4 Ala. Rep. 358.
    3.. “Leave to file” was “leave to place away among the papers of the office, and contained a reservation to reinstate. Brow v. The State, 7 Iiumph. 156; Ashlock v. The State, 7 B. Monroe, 44.
    4. The motion to strike the case from the docket was properly overruled. The defence did not pursue the proper mode to accomplish their object. It should have been pleaded in bar to the indictment.
    
    A paper found among the files of the court proves itself. State v. Clarkson, 3 Ala. Rep. 378. By not pleading the facts specially it was waived, as the jalea of not guilty admitted the indictment te be genuine. — Judge Co. Court of Pike Co. v. Wilson, 18 Ala. Rep. 758-9.
   DARGAN, 0. J.'

The plaintiff in error was indicted at the Spring Term, 1847, of the Circuit Court of Chambers, for gaming. Two writs of capias were issued against him, both of which were returned, “not found.” At the Spring Term, 1848, the following entry was made upon the record: “Upon motion of the solicitor, leave of the court being first had, this case is withdrawn from the docket, with leave to reinstate if necessary.” No further step was taken to bring the defendant into court until January, 1851, when, upon the order of the solicitor, a capias was issued, and the defendant arrested. At the trial the defendant moved the court to strike tbe cause from tbe docket, on. tbe ground that it bad been discontinued; but bis motion was overruled, and be excepted. Tbe overruling of this motion is now assigned as error.

All tbe authorities agree that every suit, whether civil or criminal, may be discontinued. Hawkins’ Pleas of tbe Crown, Vol. 2, 416; Cbitty’s Criminal Law, 864; and a discontinuance may be defined to be a gap or chasm in tbe proceeding, occurring after tbe suit is pending. Cbitty’s Criminal Law, Yol. 1, 364; Hawkins’ Pleas of tbe Crown, Yol. 2, 416; Black. Yol. 8, 296. If we test this case by these rules, it appears to me it is impossible to say there has not been a discontinuance of the suit, for it was pending from the time tbe indictment was returned into court by tbe grand jury, and there has been a chasm in tbe process of more than two years, and this chasm was produced by tbe joint act of tbe solicitor and tbe court, or rather by tbe act of tbe solicitor with tbe approbation of tbe court. If-this be not a discontinuance, then I say that there is no such thing as a discontinuance known to our law. I would not bold that tbe mere failure to issue process would be a discontinuance; because tbe issuing of process upon an indictment is made tbe duty of tbe clerk by our law, and be being a mere ministerial officer, tbe defendant ought not to be allowed to take advantage of bis omissions to perform bis duty; but when tbe cause is taken from tbe docket by tbe solicitor, with tbe permission of tbe court, and no process is issued thereon for more than two years, it must be discontinued, if by law a criminal case can be discontinued by failing to prosecute it regularly.

It is, however, insisted by tbe attorney general that tbe practice of taking indictments off tbe docket, and declining to issue process on them for a time, has been sanctioned by tbe Circuit Courts, for a considerable time, and has been found beneficial in tbe administration of tbe criminal law. This may be true, but I can find no warrant for such a practice in tbe common law, and I am certain in my own mind that our statute law gives none. Tbe second section of tbe eleventh chapter of tbe Penal Code provides that it shall not be lawful for tbe attorney general, solicitor, or other prosecuting officer to enter a nolle prosequi on any indictment, or in any other way to discontinue or abandon tbe same, without the leave of the court having jurisdiction to try the offence being first had and entered on its minutes. Clay’s Dig. 460-461. But I can draw no other inference from this act than this; the attorney general or solicitor, who before its passage had the exclusive control of all prosecutions, and could enter a nolle prosequi or discontinue a prosecution, as he saw fit, must, since the passage of the act, obtain the consent of the court before he can do either. But when the one or the other is done with the consent of the court, that is, when there has been a nolle prosequi entered, or the prosecution discontinued, the same consequences follow which would have resulted from a discontinuance or a nolle prosequi before the ¡sassage of the act.

It is also urged that this practice has obtained in Kentucky, and we are referred to the case of the Commonwealth v. Ashlock, 7 B. Monroe, 44. I admit that this case fully sustains the practice pursued by the Circuit Court in this case; but on what authority, or in accordance with what rule, the courts of Kentucky proceed, I know not. If it be in pursuance of a statute of their own, then their decision is correct; but if they profess to proceed according to the practice of the common law of England, then their decision is incorrect; for the common law gives no countenance to such a practice. Indeed, the Court of Appeals of Kentucky admit that the case would have been discontinued if leave had not been obtained to commence again at the time permission was granted to suspend further proceedings; but I am at a loss to know how leave to commence the prosecution afresh, by issuing new process, can prevent the actual chasm in the prosecution, resulting from the omission to prosecute, unless it be declared by the legislative will that such a chasm shall not produce a discontinuance. I therefore infer that the courts of Kentucky are governed by statute law, or if they are not, then I must say that their decision is erroneous, and I cannot follow it. That it would be well for the legislature to adopt such a practice by enactment, I have no doubt; but the court, which is guided by rules as well in practice as in determining upon the guilt or innocence of the accused, cannot. We must be governed by the rules of law, as they exist. We have not the power to introduce new laws, on the ground that they are more convenient than tbe old, or that they wonld better subserve tbe purposes of justice.

Tbe ruling of tbe Circuit Court was erroneous, and tbe judgment must be reversed.  