Petitioner's trial on a North Carolina criminal trespass indictment ended with a declaration of a mistrial when the jury failed to reach a verdict. After the case had been postponed for two terms, petitioner filed a motion with the trial court in which he petitioned the court to ascertain when the State intended to bring him to trial. While this motion was being considered, the State's prosecutor moved for permission to take a " nolle prosequi with leave," a procedural device whereby the accused is discharged from custody but remains subject to prosecution at any time in the future at the discretion of the prosecutor. Although petitioner objected that the trespass charge was abated by the Civil Rights Act of 1964 and that entry of the nolle prosequi order would violate his federal right to a speedy trial, the trial court, without stated justification, granted the prosecutor's motion. On appeal, the State Supreme Court affirmed the trial court's action, holding that while a defendant has a right to a speedy trial if there is to be a trial, that right does not require the State to prosecute if the prosecutor, in his discretion and with the court's approval, elects to take a nolle prosequi. Held: By indefinitely postponing prosecution on the indictment over petitioner's objection and without stated justification, the State denied petitioner the right to a speedy trial guaranteed to him by the Sixth and Fourteenth Amendments of the Federal Constitution. Pp. 219-226.
266 N.C. 349, 145 S. E. 2d 909, reversed and remanded.
Wade H. Penny, Jr., argued the cause and filed a brief for petitioner.
Andrew A. Vanore, Jr., argued the cause for respondent. With him on the brief were T. W. Bruton, Attorney General of North Carolina, and Ralph Moody, Deputy Attorney General.
William W. Van Alstyne and Melvin L. Wulf filed a brief for the American Civil Liberties Union et al., as amici curiae. [386 U.S. 213, 214]
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
The question involved in this case is whether a State may indefinitely postpone prosecution on an indictment without stated justification over the objection of an accused who has been discharged from custody. It is presented in the context of an application of an unusual North Carolina criminal procedural device known as the " nolle prosequi with leave."
Under North Carolina criminal procedure, when the prosecuting attorney of a county, denominated the solicitor, determines that he does not desire to proceed further with a prosecution, he may take a nolle prosequi, thereby declaring " that he will not, at that time, prosecute the suit further. Its effect is to put the defendant without day, that is, he is discharged and permitted to go whithersoever he will, without entering into a recognizance to appear at any other time." Wilkinson v. Wilkinson, 159 N.C. 265, 266-267, 74 S. E. 740, 741 (1912). But the taking of the nolle prosequi does not permanently terminate proceedings on the indictment. On the contrary, " When a nolle prosequi is entered, the case may be restored to the trial docket when ordered by the judge upon the solicitor's application." State v. Klopfer, 266 N.C. 349, 350, 145 S. E. 2d 909, 910 (1966). And if the solicitor petitions the court to nolle prosequi the case " with leave," the consent required to reinstate the prosecution at a future date is implied in the order " and the solicitor (without further order) may have the case restored for trial." Ibid. Since the indictment is not discharged by either a nolle prosequi or a nolle prosequi with leave, the statute of limitations remains tolled. State v. Williams, 151 N.C. 660, 65 S. E. 908 (1909). [386 U.S. 213, 215]
Although entry of a nolle prosequi is said to be " usually and properly left to the discretion of the Solicitor," State v. Moody, 69 N.C. 529, 531 (1873), early decisions indicate that the State was once aware that the trial judge would have to exercise control over the procedure to prevent oppression of defendants. See State v. Smith, 129 N.C. 546, 40 S. E. 1 (1901); State v. Thornton, 35 N.C. 256 (1852). But, in the present case, neither the court below nor the solicitor offers any reason why the case of petitioner should have been nolle prossed except for the suggestion of the Supreme Court that the solicitor, having tried the defendant once and having obtained only a mistrial, " may have concluded that another go at it would not be worth the time and expense of another effort." 266 N.C., at 350, 145 S. E. 2d, at 910. In his brief in this Court, the Attorney General quotes this language from the opinion below in support of the judgment.
Whether this procedure is presently sustained by the North Carolina courts under a statute or under their conception of the common-law procedure is not indicated by the opinion of the court, the transcript or the briefs of the parties in the present case. The only statutory reference to a nolle prosequi is in 15-175, General Statutes of North Carolina, 1 which on its face does not apply to the facts of this case. Perhaps the procedure's [386 U.S. 213, 216] genesis lies in early nineteenth century decisions of the State's Supreme Court approving the use of a nolle prosequi with leave to reinstate the indictment, although those early applications of the procedure were quite different from those of the period following enactment of 15-175. Compare State v. Thompson, 10 N.C. 613 (1825), and State v. Thornton, 35 N.C. 256 (1852) (capias issued immediately after entry of the nolle prosequi with leave), with State v. Smith, 170 N.C. 742, 87 S. E. 98 (1915) (capias issued eight years after a nolle prosequi with leave was taken, even though the defendant had been available for trial in 1907).
The consequence of this extraordinary criminal procedure is made apparent by the case before the Court. A defendant indicted for a misdemeanor may be denied an opportunity to exonerate himself in the discretion of the solicitor and held subject to trial, over his objection, throughout the unlimited period in which the solicitor may restore the case to the calendar. During that period, there is no means by which he can obtain a dismissal or have the case restored to the calendar for trial. 2 In spite of this result, both the Supreme Court and the Attorney General state as a fact, and rely upon it for affirmance in this case, that this procedure as applied to the petitioner placed no limitations upon him, and was in no way violative of his rights. With this we cannot agree.
This procedure was applied to the petitioner in the following circumstances: [386 U.S. 213, 217]
On February 24, 1964, petitioner was indicted by the grand jury of Orange County for the crime of criminal trespass, a misdemeanor punishable by fine and imprisonment in an amount and duration determined by the court in the exercise of its discretion. 3 The bill charged that he entered a restaurant on January 3, 1964, and, " after being ordered . . . to leave the said premises, wilfully and unlawfully refused to do so, knowing or having reason to know that he . . . had no license therefor . . . ." Prosecution on the indictment began with admirable promptness during the March 1964 Special Criminal Session of the Superior Court of Orange County; but, when the jury failed to reach a verdict, the trial judge declared a mistrial and ordered the case continued for the term.
Several weeks prior to the April 1965 Criminal Session of the Superior Court, the State's solicitor informed petitioner of his intention to have a nolle prosequi with leave entered in the case. During the session, petitioner, through his attorney, opposed the entry of such an order in open court. The trespass charge, he contended, was abated by the Civil Rights Act of 1964 as construed in Hamm v. City of Rock Hill, 379 U.S. 306 (1964). In spite of petitioner's opposition, the court indicated that it would approve entry of a nolle prosequi with leave if requested to do so by the solicitor. But the solicitor [386 U.S. 213, 218] declined to make a motion for a nolle prosequi with leave. Instead, he filed a motion with the court to continue the case for yet another term, which motion was granted.
The calendar for the August 1965 Criminal Session of the court did not list Klopfer's case for trial. To ascertain the status of his case, petitioner filed a motion expressing his desire to have the charge pending against him " permanently concluded in accordance with the applicable laws of the State of North Carolina and of the United States as soon as is reasonably possible." Noting that some 18 months had elapsed since the indictment, petitioner, a professor of zoology at Duke University, contended that the pendency of the indictment greatly interfered with his professional activities and with his travel here and abroad. " Wherefore," the motion concluded, " the defendant . . . petitions the Court that the Court in the exercise of its general supervisory jurisdiction inquire into the trial status of the charge pending against the defendant and . . . ascertain the intention of the State in regard to the trial of said charge and as to when the defendant will be brought to trial."
In response to the motion, the trial judge considered the status of petitioner's case in open court on Monday, August 9, 1965, at which time the solicitor moved the court that the State be permitted to take a nolle prosequi with leave. Even though no justification for the proposed entry was offered by the State, and, in spite of petitioner's objection to the order, the court granted the State's motion.
On appeal to the Supreme Court of North Carolina, petitioner contended that the entry of the nolle prosequi with leave order deprived him of his right to a speedy trial as required by the Fourteenth Amendment to the United States Constitution. Although the Supreme [386 U.S. 213, 219] Court acknowledged that entry of the nolle prosequi with leave did not permanently discharge the indictment, it nevertheless affirmed. Its opinion concludes:
We, too, believe that the position taken by the court below was erroneous. The petitioner is not relieved of the limitations placed upon his liberty by this prosecution merely because its suspension permits him [386 U.S. 213, 222] to go " whithersoever he will." The pendency of the indictment may subject him to public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes. By indefinitely prolonging this oppression, as well as the " anxiety and concern accompanying public accusation," 6 the criminal procedure condoned in this case by the Supreme Court of North Carolina clearly denies the petitioner the right to a speedy trial which we hold is guaranteed to him by the Sixth Amendment of the Constitution of the United States.
While there has been a difference of opinion as to what provisions of this Amendment to the Constitution apply to the States through the Fourteenth Amendment, that question has been settled as to some of them in the recent cases of Gideon v. Wainwright, 372 U.S. 335 (1963), and Pointer v. Texas, 380 U.S. 400 (1965). In the latter case, which dealt with the confrontation-of-witnesses provision, we said:
The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution.
For the reasons stated above, the judgment must be reversed and remanded for proceedings not inconsistent with the opinion of the Court.
[ Footnote 1 ] N.C. Gen. Stat. 15-175 (1965): " A nolle prosequi `with leave' shall be entered in all criminal actions in which the indictment has been pending for two terms of court and the defendant has not been apprehended and in which a nolle prosequi has not been entered, unless the judge for good cause shown shall order otherwise. The clerk of the superior court shall issue a capias for the arrest of any defendant named in any criminal action in which a nolle prosequi has been entered when he has reasonable ground for believing that such defendant may be arrested or upon the application of the solicitor of the [386 U.S. 213, 216] district. When any defendant shall be arrested it shall be the duty of the clerk to issue a subpoena for the witnesses for the State indorsed on the indictment." The provision was originally enacted in 1905.
[ Footnote 2 ] On oral argument, counsel for the State informed the Court that a North Carolina indictment could be quashed only if it contained a vitiating defect. See also N.C. Gen. Stat. 15-153, 15-155 (1965).
[ Footnote 3 ] N.C. Gen. Stat. 14-134 (Supp. 1965). Although not expressly limited by statute, the extent of punishment is limited by N.C. Const. 1868, Art. I, 14 (" Excessive bail should not be required, not excessive fines imposed, nor cruel or unusual punishments inflicted" ). See State v. Driver, 78 N.C. 423 (1878). Decisions of the state courts indicate that imprisonment for up to two years would not be an " unusual punishment." See, e. g., State v. Farrington, 141 N.C. 844, 53 S. E. 954 (1906). The constitutional limitation upon the amount of the fine has not been judicially determined.
[ Footnote 4 ] See Rost v. Municipal Court of Southern Judicial District, 184 Cal. App. 2d 507, 7 Cal. Rptr. 869 (1st Dist. 1960); Kistler v. State, 64 Ind. 371 (1879); Jones v. Commonwealth, 114 Ky. 599, 71 S. W. 643 (1903); Barrett v. State, 155 Md. 636, 142 A. 96 (1928); Hicks v. Recorder's Court of Detroit, 236 Mich. 689, 211 N. W. 35 (1926); State v. Artz, 154 Minn. 290, 191 N. W. 605 (1923). See also Jacobson v. Winter, 91 Idaho 11, 415 P.2d 297 (1966); People v. Bryarly, 23 Ill. 2d 313, 178 N. E. 2d 326 (1961); People v. Prosser, 309 N. Y. 353, 130 N. E. 2d 891 (1955); State v. Couture, 156 Me. 231, 163 A. 2d 646 (1960); State v. Keefe, 17 Wyo. 227, 98 P. 122 (1908) (the right to a speedy trial may be violated by [386 U.S. 213, 220] undue delay in bringing a prisoner confined within the State to trial, even though he is not held in custody under the indictment). Dicta in decisions of the Colorado, Iowa, and Utah courts clearly indicate that these States would also hold that the speedy trial right would protect a defendant in petitioner's position: see In re Miller, 66 Colo. 261, 263-264, 180 P. 749, 750-751 (1919); Pines v. District Court of Woodbury County, 233 Iowa 1284, 1294, 10 N. W. 2d 574, 580 (1943); State v. Mathis, 7 Utah 2d 100, 103, 319 P.2d 134, 136 (1957). Although Pennsylvania has not decided the question presented by this case, decisions of its Supreme Court indicate that the " right to a speedy trial" is only applicable to a man held in prison. See Commonwealth ex rel. Smith v. Patterson, 409 Pa. 500, 187 A. 2d 278 (1963). But in that case, the Commonwealth's Supreme Court held that the delay in trying the defendant and the failure to give him notice of the pendency of a complaint for eight years constituted a denial of due process. Moreover, Rule 316 of the Commonwealth's rules of criminal procedure authorizes the court to dismiss a case which has not been brought to trial within a " reasonable time." By rule or legislation in 17 States, any defendant, whether at large or in custody, whose trial has been unduly delayed is entitled to a dismissal. See Ariz. Rule Crim. Proc. 236; Cal. Pen. Code 1382; Ga. Code Ann. 27-1901 (1953); Idaho Code Ann. 19-3501 (1948); Iowa Code 795.2 (Supp. 1966); La. Rev. Stat. 15:7.8-15:7.11 (Supp. 1962); Me. Rev. Stat. Ann., Tit. 15, 1201 (1964); Mont. Rev. Codes Ann. 94-9501 (1947); Nev. Rev. Stat. 178.495; N. J. Rev. Rule Crim. Proc. 3:11-3 (Supp. 1966); N. D. Cent. Code 29-18-01 (1960); Okla. Stat., Tit. 22, 812 (1951); Ore. Rev. Stat. 134.120; S. D. Code 34.2203 (Supp. 1960); Utah Code Ann. 77-51-1 (1953); Wash. Rev. Code 10.46.010; W. Va. Code Ann. 6210 (1961).
[ Footnote 5 ] Thirty States continue to permit a prosecuting official to enter a nolle prosequi. Legislation or court decisions in 13 of these proscribe reinstatement of the indictment at a subsequent term. See Lawson v. People, 63 Colo. 270, 165 P. 771 (1917); Price v. Cobb, 60 Ga. App. 59, 61, 3 S. E. 2d 131, 133 (1939) (by implication), Jones v. Newell, 117 So.2d 752 (D.C. App. Fla., 2d Dist., 1960); State v. Wong, 47 Haw. 361, 389 P.2d 439 (1964); People v. [386 U.S. 213, 221] Watson, 394 Ill. 177, 68 N. E. 2d 265 (1946), cert. denied, 329 U.S. 769 ; La. Rev. Stat. 15:328 (1950); Barrett v. State, 155 Md. 636, 142 A. 96 (1928); State v. Montgomery, 276 S. W. 2d 166 (Mo. 1955); In re Golib, 99 Ohio App. 88, 130 N. E. 2d 855 (1955); State ex rel. Hobbs v. Murrell, 170 Tenn. 152, 93 S. W. 2d 628 (1936); Ex parte Isbell, 48 Tex. Cr. R. 252, 87 S. W. 145 (1905); Dudley v. State, 55 W. Va. 472, 47 S. E. 285 (1904); Woodworth v. Mills, 61 Wis. 44, 20 N. W. 728 (1884). Alabama permits reinstatement of an indictment nolle prossed with leave, but only if the defendant cannot be brought before the court. See Ala. Code, Tit. 15, 251 (Supp. 1965). Thus this procedure is similar to that of filing away the indictment, discussed below. Of the remaining States, only North Carolina and Pennsylvania have held that a nolle prossed indictment could be reinstated at a subsequent term. See Commonwealth v. McLaughlin, 293 Pa. 218, 142 A. 213 (1928). Several States permit the removal of the indictment from the trial docket with leave to reinstate at some indefinite future date. But in each, use of the procedure has been limited to situations in which the defendant cannot be brought before the court or where he has consented to the removal. See, e. g., People v. Fewkes, 214 Cal. 142, 4 P.2d 538 (1931); State v. Dix, 18 Ind. App. 472, 48 N. E. 261 (1897); Lifshutz v. State, 236 Md. 428, 204 A. 2d 541 (1964), cert. denied, 380 U.S. 953 ; Commonwealth v. Dowdican's Bail, 115 Mass. 133 (1874) (indictment may be filed away only after verdict and then only with the consent of the accused); Gordon v. State, 127 Miss. 396, 90 So. 95 (1921) (consent of defendant necessary); Rush v. State, 254 Miss. 641, 182 So.2d 214 (1966) (but not if defendant was in a mental institution at the time the indictment was retired to the files). At one time, Illinois decisions indicated that when an accused was imprisoned within the State on another charge an indictment might be filed away without his consent. See, e. g., People v. Kidd, 357 Ill. 133, 191 N. E. 244 (1934). But these decisions have since been overruled. See People v. Bryarly, 23 Ill. 2d 313, 178 N. E. 2d 326 (1961).
[ Footnote 8 ] Magna Carta, c. 29 [c. 40 of King John's Charter of 1215] (1225), translated and quoted in Coke, The Second Part of the Institutes of the Laws of England 45 (Brooke, 5th ed., 1797).
[ Footnote 9 ] " 4. And when a robber or murderer or thief or receiver of them has been arrested through the aforesaid oath, if the justices are not about to come speedily enough into the country where they have been taken, let the sheriffs send word to the nearest justice by some well-informed person that they have arrested such men, and the justices shall send back word to the sheriffs informing them where they desire the men to be brought before them; and let the sheriffs bring them before the justices." 2 English Historical Documents 408 (1953).
[ Footnote 10 ] An example of the Commission of goal delivery is set forth in Goebel, Cases and Materials on the Development of Legal Institutions 53 (7th rev. 1946): " The lord king to his beloved and faithful Stephen de Segrave and William Fitz Warin, greeting. Know that we have appointed you justices to deliver our gaol at Gloucester, in accordance with the custom of our realm, of the prisoners arrested and held there. And hence we order you that in company with the coroners of the county of Gloucester you convene at Gloucester on the morrow of the festival of the Holy Trinity in the twelfth year of our reign [Monday, May 22, 1228], to deliver the aforementioned gaol, as [386 U.S. 213, 224] aforesaid, for we have ordered our sheriff of Gloucestershire that at the aforesaid time and place he cause to come before you all the prisoners in the aforesaid gaol and all persons attached to appear against them and on account of them. In witness whereof, etc. Dated April 20, in the twelfth year of our reign." " The judges commissioned in a general oyer and terminer commission," Professor Goebel writes, " are ordered to inquire by grand jury of named crimes, from treasons to the pettiest offense, as to all particulars and to hear and determine these according to the law and custom of the realm." Id., at 54.
[ Footnote 11 ] Id., at 54.
[ Footnote 12 ] Coke, op. cit. supra, n. 8, at 43.
[ Footnote 13 ] See Ibid.
[ Footnote 14 ] Id., at 55. " Hereby it appeareth," Coke stated in the next paragraph, " that justice must have three qualities, it must be libera, quia nihil iniquius venali justitia; plena, quia justitia non debet [386 U.S. 213, 225] claudicare; et celeris, quia dilatio est quaedam negatio; and then it is both justice and right." Later in the explication of Chapter 29, Coke wrote that in conformity with the promise not to delay justice, all of the King's " commissions of oier, and terminer, of goale delivery, of the peace, &c. have this clause, facturi quod ad justitiam pertinet, secundum legem, and consuetudinem Angliae, that is, to doe justice and right, according to the rule of the law and custome of England . . . ."
[ Footnote 15 ] See Warren, History of the American Bar 157-187 (1911); Meador, Habeas Corpus and Magna Carta 23-24 (1966).
[ Footnote 16 ] Quoted in Warren, op. cit. supra, n. 15, at 174.
[ Footnote 17 ] Quoted in Bowen, The Lion and the Throne 514 (1956).
[ Footnote 18 ] See Coke, op. cit. supra, n. 8, at A4 (Proeme).
[ Footnote 19 ] See 1 Rowland, The Life of George Mason 234-266 (1892).
[ Footnote 20 ] See Va. Declaration of Rights, 1776, 8.
[ Footnote 21 ] See Del. Const., 1792, Art. I, 7; Md. Declaration of Rights, 1776, Art. XIX; Pa. Declaration of Rights, 1776, Art. IX; Va. Declaration of Rights, 1776, 8. Mass. Const., 1780, Part I, Art. XI, provided: " Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged [386 U.S. 213, 226] to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws." This has been construed as guaranteeing to all citizens the right to a speedy trial. See Commonwealth v. Hanley, 337 Mass. 384, 149 N. E. 2d 608 (1958). A similar provision was included in the New Hampshire Constitution of 1784, Part I, Art. XIV. Kentucky, Tennessee, and Vermont, the three States which were admitted to the Union during the eighteenth century, specifically guaranteed the right to a speedy trial in their constitutions. See Vt. Const. 1786, c. I, Art. XIV; Ky. Const. 1792, Art. XII, 10; Tenn. Const. 1796, Art. XI, 9.
MR. JUSTICE HARLAN, concurring in the result.
While I entirely agree with the result reached by the Court, I am unable to subscribe to the constitutional premises upon which that result is based - quite evidently the viewpoint that the Fourteenth Amendment " incorporates" or " absorbs" as such all or some of the specific provisions of the Bill of Rights. I do not believe that this is sound constitutional doctrine. See my opinion concurring in the result in Pointer v. Texas, 380 U.S. 400, 408 .
I would rest decision of this case not on the " speedy trial" provision of the Sixth Amendment, but on the ground that this unusual North Carolina procedure, [386 U.S. 213, 227] which in effect allows state prosecuting officials to put a person under the cloud of an unliquidated criminal charge for an indeterminate period, violates the requirement of fundamental fairness assured by the Due Process Clause of the Fourteenth Amendment. To support that conclusion I need only refer to the traditional concepts of due process set forth in the opinion of THE CHIEF JUSTICE. [386 U.S. 213, 228]