Arrowsmith v. State
|17 April 1915
|ARROWSMITH v. STATE.
|Tennessee Supreme Court
Appeal from Circuit Court, Giles County; W. B. Turner, Judge.
Mark Arrowsmith was convicted of forgery, and he appeals. Reversed, and defendant ordered released.
T. M Pierce, of St. Louis, Mo., J. M. Howell, of Gallatin, and R E. Dotson, of Pulaski, for appellant.
F. M Thompson, Atty. Gen., for the State.
At the October term, 1911, of the circuit court of Giles county there were 11 indictments pending against appellant Arrowsmith, 7 of them for forgery. At that term he was put to trial on one of the indictments for forgery, convicted, and sentenced to serve a term of 3 years in the state penitentiary.
The other cases were continued at that term by consent and set for trial January 26, 1912.
Arrowsmith was incarcerated in accordance with the sentence in December, 1911, and at the January term, 1912, the record shows, as to the remaining cases, that "these causes were continued to the next term of this court"; the proof showing that the continuance was not at the instance of the accused.
At the October term, 1912, the record order, made in the absence of accused and without his consent, was as follows:
"Came the Attorney General for the state, and, it appearing to the court that defendant is serving a term in the penitentiary, it is considered by the court that said cases be retired from the docket until the expiration of said sentence."
It is disclosed by the record that in April, 1914, before Arrowsmith's term of service expired in June, 1914, the prosecuting attorney directed the warden of the penitentiary to send Arrowsmith to Giles county for the purpose of procuring from him a compromise judgment of conviction terminating the untried causes, and not for the purpose of trying any one of them. This effort at compromise failing because of the refusal of the accused to assent, he was returned to the penal institution, where he completed his term in June.
At the October term, 1914, he was put on his trial on another indictment for forgery, found guilty, and again sentenced.
When at this term a motion was made by the prosecuting attorney to reinstate four of the untried cases on the docket, the counsel for the defense filed written objections as follows:
"First. Because this court, at the October term. 1912, caused an order to be entered of record retiring said case from the docket, and there has been no further order made in said case restoring the same to the docket.
Second. Because this court, when it retired said case from the docket, lost jurisdiction thereof and is without power or authority to further proceed.
Third. Because said case has been delayed until now, and no effort has been made by the state to prosecute or bring this defendant to trial, thus denying him a speedy and public trial as guaranteed by the sixth amendment to the Constitution of the United States, and section 9, article 1, of the Constitution of the state of Tennessee, and in violation of section 6951, Shannon's Code of Tennessee." The court sustained the motion of the Attorney General and restored said cases to the docket. To this action and ruling of the court the plaintiff in error excepted. Thereupon one of these forgery cases was reinstated on the docket and set for trial instanter, with the result above stated.
Following verdict, plaintiff in error filed a motion for discharge from custody in substantially the same terms as the motion above. This was overruled by the trial judge after oral evidence was heard in support of and in opposition to the motion.
On appeal to this court the same grounds have been made the bases of the errors assigned in behalf of plaintiff in error.
The Constitution, in art. 1, § 9, provides that:
"In all criminal prosecutions, the accused hath the right * * * in prosecutions by indictment or presentment (to) a speedy public trial, by an impartial jury of the county in which the crime shall have been committed."
By an accordant provision of the Code (Shannon), section 6951, it is stipulated:
"In all criminal prosecutions the accused is entitled to a speedy trial, and to be heard in person and by counsel."
We have no statute which prescribes definitely the period within which an accused must as a matter of his right be brought to trial, in default of which he must be released; but by section 7155 it is provided that where the trial has not been postponed on his application, and he be not brought to trial at the next regular term of the court in which the indictment is triable, after the same is found, the court may order it to be dismissed, unless good cause to the contrary be shown.
By section 7250 it is declared that a conviction for any one offense is not a bar to a prosecution for any other public offense committed previously, not necessarily included in the offense for which the defendant was convicted.
There cannot be doubt that one under conviction and while imprisoned in the penitentiary may be brought to the bar for trial and sentenced for another crime, whether charged to have been committed before or during such imprisonment. This practice has been followed in this state and in this court, and many reported cases sustain it. Thomas v. People, 67 N.Y. 218; People v. Majors, 65 Cal. 138, 3 P. 597, 52 Am. Rep. 295; Henderson v. James, 52 Ohio St. 242, 39 N.E. 805, 27 L. R. A. 290; Rigor v. State, 101 Md. 465, 61 A. 631, 4 Ann. Cas. 719.
In the last-cited case it is said:
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