Summary
In Mason v. State, 169 Tenn. 52 [ 82 S.W.2d 862], it was held that no appeal lay from an order retiring the case from the docket.
Summary of this case from State v. BonhartOpinion
Opinion filed June 1, 1935.
CRIMINAL LAW.
Denial of accused's constitutional right to a speedy trial and to remove imputation of crime resulting from undisposed of indictment by order retiring the cause is not reviewable upon appeal or error (Const. Tenn., art. 1, sec. 6; Const. U.S., Amend. 6).
FROM LAUDERDALE.Error to Criminal Court of Lauderdale County. — HON. R.B. BAPTIST, Judge.
Proceedings by the State against Bankston Mason. Order refusing appeal, and defendant brings error. Dismissed.
CRAIG DURHAM, of Ripley, for plaintiff in error.
NAT TIPTON, Assistant Attorney-General, for the State.
The plaintiff in error was charged by indictment returned by the grand jury February 7, 1934, with the murder of John Turner. The cause was continued upon motion of defendant until the June term and set for trial the second Wednesday of June. No further proceedings are shown by the record until October 17, a day within the June term, when, upon motion of the Attorney-General, the court allowed the cause to be retired from the docket; a procedure which by delay might bar further prosecution. Smith v. State, 168 Tenn. 265, 77 S.W.2d 450; Arrowsmith v. State, 131 Tenn. 480, 175 S.W. 545, L.R.A., 1915E, 363. This was done over objection of the defendant who, it appears, was present and first demanded a trial and next a verdict of not guilty, both of which were denied by the court. Exception was taken and an appeal prayed, but the court refused to grant defendant's appeal from the order retiring the cause. The record was then filed for writ of error, and assignments have been made through which it is insisted that the defendant was denied the right of a speedy trial assured by article 1, section 6, of the state Constitution, and the Sixth Amendment to the Federal Constitution, and was also denied an opportunity to remove the imputation of crime that rested on him as result of the undisposed of indictment.
The question is not open to review either upon appeal or writ of error, for nothing was adjudicated in the trial court. No disposition was made of the cause. Jordan v. State, 124 Tenn. 81, 135 S.W. 327, 34 L.R.A. (N.S.), 115; Foute v. State, 3 Hayw., 98; Lewis v. United States, 216 U.S. 611, 30 S.Ct., 438, 54 L.Ed., 637.
Dismissed.