Commonwealth v. Smith
| Decision Date | 11 November 1910 |
| Parties | COMMONWEALTH v. SMITH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Rockcastle County.
Harvey Smith was indicted for murder. The case was dismissed. From an order denying the motion of a commonwealth's attorney to redocket the cause, the commonwealth appeals. Affirmed.
M. L Jarvis, James Breathitt, Atty. Gen., and Chas. H. Morris, for the Commonwealth.
O'REAR J.
Harvey Smith was indicted by the grand jury of Rockcastle county in 1903, charged with murder. Not being in custody, a bench warrant was issued for him. The sheriff, being unable to find the defendant, indorsed and returned the bench warrant accordingly. The case was therefore continued upon the docket, and an alias bench warrant ordered, with like result. The cause was again continued, and pluries bench warrant issued, with the same result. The court then entered this order, at the September term, 1903: "The defendant's whereabouts being unknown, and as the prosecution will never be barred by limitation, it is ordered by the court that the same be and is hereby dismissed." Thus the matter rested until the May term, 1910, of the court, when the commonwealth's attorney moved the court to redocket the case. The motion was overruled, on the ground that the circuit court deemed it had no longer the power to enter an order in that case. The commonwealth has prosecuted this appeal, that the law may be certified.
When an indictment is dismissed, unless the matter be then referred to the grand jury, it is a final order in that case. After the term at which the order is entered, the court has not the power to set it aside. Should the court or the prosecution desire to retain control of the case after the term, it may be done by an order filing the indictment away, to be redocketed on motion of the commonwealth. Jones v Commonwealth, 114 Ky. 599, 71 S.W. 643, 24 Ky. Law Rep 1434. But, without such reservation, an unconditional dismissal is an end of that case. If, therefore, the commonwealth desires to reinstate the prosecution, it may do so by procuring another indictment, or by warrant of arrest sworn out before an examining magistrate, and then proceed as in other original prosecutions. The order dismissing the indictment, though a final order, does not bar another indictment or prosecution. The wording of the particular order here being discussed shows that the accused had never been...
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State v. Jones
...as 'Filing away an indictment' or 'Passing an indictment to the files.' See Byrd v. State, 179 Miss. 336, 175 So. 190; Commonwealth v. Smith, 140 Ky. 580, 131 S.W. 391. And see Annotation, 'Effect of passing indictment to files,' 18 A.L.R. 1153 41 Am.Jur.2d, Indictments and Informations, § ......
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State v. Lonon
...472, 47 S.E. 285; State v. Main, 31 Conn. 572; State v. Shilling, 10 Iowa 106; Jones v. Com., 114 Ky. 599, 71 S.W. 643; Com. v. Smith, 140 Ky. 580, 131 S.W. 391; Willingham v. State, 14 Ala. 539. The case having been unconditionally dismissed ended the prosecution of the case, and the juris......
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Kelly v. Commonwealth, 2017-SC-000265-MR
...the indictment, though a final order, does not bar another indictment or prosecution. Id. at 618-19 (quoting Commonwealth v. Smith, 140 Ky. 580, 131 S.W. 391, 392 (1910) ). Our case law has clearly delineated the options for the Commonwealth. In Smith, the defendant was charged with murder.......
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State v. Lonon, 32323.
...Va. 472, 47 S.E. 285; State v. Main, 31 Conn. 572; State v. Shilling, 10 Iowa, 106; Jones v. Com., 114 Ky. 599, 71 S.W. 643; Com. v. Smith, 140 Ky. 580, 131 S.W. 391; Willingham v. State, 14 Ala. 539. The case having been unconditionally dismissed ended the prosecution of the case, and the ......