delivered the opinion of the court:
By leave of this court, the Attorney General has filed an original petition for mandamus asking us to direct the respondents (judges of the circuit court of Kane County) to vacate an order of May 9, 1955, denying the motion of the Attorney General for a nolle prosequi in a certain criminal prosecution pending in that court. (People v. Lloyd C. Moody, No. 54-757.) The Attorney General further asks that we direct them to enter nunc pro tunc, as of May 9, I955> 3X1 order of nolle prosequi on said motion, and to vacate all proceedings and orders (including the verdict and judgment) subsequently entered in the cause.
The undisputed facts disclose the following: On July 26, 1954, a Kane County grand jury returned four embezzlement indictments against Lloyd C. Moody. (Nos. 54-754 through 54~757-) Each of the first three indictments charged the embezzlement of a particular sum of money from a certain individual, but the fourth (No. 54-757) was a consolidated indictment encompassing the elements of the other three.
On July 30, 1954, the indictments were set for trial as the first case of the September, 1954, petit jury, but on motion of the court were continued to September 13, 1954. On the latter date, there was a continuance (the record not showing at whose request) to the November term. A hearing was held on November 5, 1954, at which time certain motions made on behalf of defendant Moody were denied. Three days later, on November 8, 1954, counsel agreed to a setting on November 29, 1954, and at the request of the court the assistant State’s Attorney made an election to proceed on No. 54-757.
Defendant Moody’s present counsel entered the case on November 26, 1954, and the trial date was changed to January 11, 1955. By agreement, this was extended to February 14, 1955. Then, on motion of the State’s Attorney, the court continued the case to March 21, 1955. At that time the State’s Attorney sought to proceed on No. 54-756, but the court insisted that because of the previous election he had to prosecute No. 54-757. Whereupon, the latter moved to enter a nolle prosequi in No. 54-757, stating in argument that “there is a possibility in the proof that there would be a variance as to the proof of ownership.” (This was predicated upon a belief that there would be a variance as to the embezzlement alleged in No. 54-755, and since No. 54-757 was a consolidated indictment the variance would arise in the latter case also.) The court denied this motion on April 21, 1955.
The State’s Attorney then requested the Attorney General to enter his appearance on behalf of the People of the State of Illinois, and shortly thereafter, with consent of the State’s Attorney, the Attorney General moved to nolpros No. 54-757. The Attorney General alleged in this motion that there would be a fatal variance between the proof and the allegation of the ownership of the money as charged in the indictment, so that it was not in the best interest of the administration of justice in the State of Illinois to proceed with the prosecution.
The trial court (Judge Harry C. Daniels, presiding) denied the Attorney General’s motion, and both the Attorney General and the State’s Attorney refused to- participate further in the proceedings. On the following day, May io, I9S5, circuit judge Mel Abrahamson impanelled a jury to try indictment No-. 54-757, and on motion of counsel for defendant Moody directed a verdict of not guilty. After the not guilty verdict was returned, the court entered judgment thereon and discharged the defendant.
On May 16, 1955, the Attorney General requested leave of this court to file a petition for an original writ of mandamus, which we granted. Judge Harry C. Daniels, who died during the pendency of these proceedings, has been dismissed as a respondent.
To decide the issue, we must consider the following: (1) Was the Attorney General properly in the case? (2) If so, did the court err in refusing to allow his motion to nol-pros the indictment?
First, was the Attorney General properly in the case?
Apart from authority which is vested in the Attorney General by the Illinois constitution, he has by statute the right to assist a State’s Attorney in the prosecution of a case. (Ill. Rev. Stat. 1953, chap. 14, par. 4.) A portion of this statute makes it the duty of the Attorney General to do the following: “Fourth — To consult with and advise the several state’s attorneys in matters relating to- the duties of their office; and when, in his judgment, the interest of the people of the state requires it, he shall attend the trial of any party accused of crime, and assist in the prosecution.”
In construing the foregoing, we have held that the Attorney General is authorized to appear not only for consultation and advice but also for whatever assistance may be desirable and beneficial to the prosecution, both during the trial and in all preliminary and subsequent proceedings arising in the progress of the case. (People v. Looney, 314 Ill. 150; People v. Billburg, 314 Ill. 182.) Indeed, as expressed in the Looney case, it is the statutory duty of the Attorney General to appear in a prosecution when in his judgment the interest of the people of the State requires it. We have never viewed the powers vested in the State’s Attorney as exclusive of those vested in the Attorney General. See Lawless, “The Relationship Between the Attorney-General and the State’s Attorney in Illinois,” 1949 Law Rorum 507.
There is no conflict between the two officers as to the authority residing in each, since the Attorney General intervened at the request of the State’s Attorney and acted in aid of the latter. Therefore, it is clear that the Attorney General was properly in the case.
Second, did the court err in refusing to allow the motion to nol-pros the indictment?
The Attorney General, whose office is created by the Illinois constitution (art. V, sec. 1), is the chief law officer of the State and has those powers which resided in the Attorney General at common law. His office is a part of the executive department, and neither the legislature nor the courts can deprive him of his constitutionally granted authority. See People ex rel. Elliott v. Covelli, 415 Ill. 79.
Among the powers of the Attorney General at common law was the right to nol-pros an indictment at all stages of a criminal prosecution before the jury was impanelled or before the trial of the case, except that the action could not be capriciously or vexatiously repetitious. In the Covelli case, the Attorney General’s conduct was not repetitious at all, since the motion considered was the first nolle prosequi filed in the matter. Accordingly, by mandamus we compelled the trial court to enter an order of nolle prosequi as of the date of filing and expunged a subsequent order discharging the defendant.
We consider the Covelli case controlling here. As in that case, there has not been here any such capricious or vexatious repetition as to bring the case within the recognized exception to the Attorney General’s right to terminate a criminal prosecution. Rather, it is shown that the Attorney General acted in this one instance alone.
Moreover, it is shown that the Attorney General, after investigating the matter, concluded there would be a fatal variance between the charge and the proof with a resulting miscarriage of justice. For, as noted, it was believed there would be a fatal variance in No. 54-755, one of the separate indictments, and because No. 54-757 was a consolidated indictment, a fatal variance would arise in that prosecution also. Hence, he was faced with a practical problem. If there was an acquittal on the consolidated indictment, prosecution of the other three would be barred. To prevent this, and to save the two indictments where no variance was thought to exist (Nos. 54-754 and 54-756), he had no alternative but to nol-pros No. 54-757. In so acting, the Attorney General clearly did not abuse the discretion vested in him.
There is no record of harassment here, as suggested by respondent’s counsel in oral argument. There was no repetition, only one continuance was secured on motion of the State’s Attorney, and there is nothing to indicate that either the State’s Attorney or the Attorney General did not act in good faith with a desire to prevent an injustice. Despite the previous election to prosecute the indictment, had they gone to trial under these circumstances they certainly would not have acted as the people of this State have a right to expect law officers to- act in the enforcement of the criminal law.
There is nothing to demonstrate any abuse of discretion on the part of the Attorney General; therefore, the respondents were under a mandatory duty to enter the order of nolle prosequi.
The writ of mandamus is hereby awarded directing Mel Abrahamson, as judge of the circuit court of Kane County, Illinois, to enter nunc pro tunc as of May 9, 1955, an order of nolle prosequi on the motion filed by the petitioner. The respondent is also directed to expunge all orders and judgments entered in said cause subsequent to the filing of said motion.
Writ awarded.
Mr. Justice Keingbiee took no part in the consideration or decision of this case.