Raine v. State

Decision Date11 December 1920
Citation226 S.W. 189
PartiesRAINE v. STATE.
CourtTennessee Supreme Court

C. Hunter Raine was convicted of fraudulent breach of trust denounced by Thomp. Shan. Code, § 6580, and he brings error. Affirmed.

Hugh M. Magevny, of Memphis, and Jno. E. Bell, of Memphis, for Raine.

Wm. H. Swiggart, Jr., Asst. Atty. Gen., for the State.

EDWARD J. SMITH, Special Judge.

C. Hunter Raine, the plaintiff in error, hereinafter referred to as the defendant, was indicted in the criminal court of Shelby county on February 10, 1914, on an indictment charging him in three counts with embezzlement, fraudulent breach of trust, and statutory larceny of the sum of $788,804.76, good and lawful money of the United States, the property of the Mercantile Bank of Memphis, Tenn.

On July 15, 1919, he was convicted by the jury of fraudulent breach of trust, as charged in the second count of the indictment, and was sentenced to be confined in the penitentiary for not less than 1 nor more than 10 years. From this judgment Mr. Raine has appealed to this court, and has here assigned 15 errors.

Prior to the trial several motions were made on behalf of the defendant, and as they are not assigned in the order in which they were presented in the court below, we shall consider them rather in their logical order than that in which they appear in the formal assignments of error.

The fifteenth assignment of error is that the trial judge erred in overruling the defendant's motion for a discharge and for a dismissal of the case, made before the jury were sworn, on the ground that he had been denied the speedy public trial guaranteed to him by the sixth amendment to the Constitution of the United States and by article 1, § 9, of the Constitution of Tennessee, and also by section 6951 of Shannon's Code of Tennessee, and upon the further ground that the court had lost jurisdiction of the case.

So far as any reliance is placed on the sixth amendment to the Constitution of the United States, the question need not be further considered, for, since the leading case of Barron v. Baltimore, 7 Pet. 248, 8 L. Ed. 672, it has been an elementary principle of constitutional law that amendments 1 to 10 of the federal Constitution are binding only on action by the United States, and are not binding on the respective states. As this is a proceeding in a state court for the alleged violation of a state statute, it necessarily follows that no constitutional right can be predicated on the sixth amendment to the federal Constitution.

Turning, then, to the state Constitution, counsel for the defendant rely on the case of Arrowsmith v. State, 131 Tenn. 480, 175 S. W. 545, L. R. A. 1915E, 363. In this case it appeared that Arrowsmith, who had been indicted in 11 cases for forgery, was put on trial on one of the indictments, and duly sentenced and convicted therefor. While serving this sentence the trial court caused an order to be made and entered on the minutes that the remaining cases be retired from the docket until the expiration of the first sentence, which Arrowsmith was serving in the state penitentiary. When this sentence had been served the state attempted to try Arrowsmith on the remaining indictments, and he insisted that as the cases had been by order of the court below retired from the docket, the court had lost jurisdiction thereof, and further that to try him on these other indictments would be a denial of his right to a speedy trial as guaranteed by article I, section 9, of the Constitution of Tennessee. This contention was sustained, the court holding (1) that Arrowsmith was so conditioned while serving in the penitentiary that he could not personally demand that his own trial be proceeded with; and (2) that during the entire period of his incarceration in the penitentiary he was subject to the jurisdiction and orders of the court, and might at any time have been brought back to the trial court for trial on the other indictments then pending against him.

Bearing in mind the principles decided in Arrowsmith v. State, supra, the doctrine of which we conceive to be sound and in accordance with the overwhelming weight of authority involving questions similar to those there involved, we proceed to inquire whether the facts in the pending case bring it within the rules established in the court in the Arrowsmith Case.

As above stated, the defendant Raine was indicted on February 10, 1914, and on February 12, 1914, was arraigned on the indictment, and pleaded not guilty thereto. In default of bail the defendant remained in jail until the latter part of April, and in June of 1914 the case was called for trial, but was continued, on the court's own motion, because of inability to secure a jury. The record shows that there were no minute entries regarding this case by the clerk for the September term, 1914, nor for the January, May, or September terms, 1915; but beginning with the January term, 1916, and for each term thereafter until the trial and conviction, the minutes show that the case was continued from term to term, in each instance upon motion of the Attorney General. As above stated, the defendant was on bail from the latter part of April until he left for New York shortly after his case was continued in June of 1914 on the court's motion; and it further appears that this continuance was not opposed by the defendant, but, on the contrary, was desired by him, for the reason that, as he states, he was not then quite ready for trial; the strong inference being that he was then attempting to repay the sum which he was charged with misappropriating from the bank, thereby hoping to stop the criminal prosecution so far at least as the charge of embezzlement was concerned, under section 6575, Thompson's Shannon's Code.

The defendant, after the continuance in June of 1914, left for New York City, where he remained until February 8, 1915, on which day he returned to Memphis and pleaded guilty in the United States District Court in Memphis to the charge of having used the mails for a fraudulent purpose, and he received a 5-year sentence in the federal penitentiary at Atlanta, Ga. He states that one of his reasons for so pleading guilty in the federal court was that he was advised by his counsel that this would wipe out the state cases, and that they thought no further action would be taken on them.

Mr. Raine was released from the Atlanta penitentiary on October 17, 1918, and immediately went to New York, where he remained until June 27, 1919, when he returned to Memphis to go to trial in the criminal court of Shelby county.

The defendant testified that he did not demand a trial of any of his cases before entering the penitentiary at Atlanta; that he did not demand a trial, nor ask his attorney to demand a trial while he was in the penitentiary at Atlanta; and that he had never demanded a trial after his release from the penitentiary at Atlanta, nor at any other time.

We do not think that the failure of the clerk of the criminal court of Shelby county to make minute entries for the September, 1914, and the January, May, and September terms, 1915, showing a continuance of this case, caused the court below to lose jurisdiction thereof. By section 7154 of Thompson's Shannon's Code it is expressly provided that after an indictment is found, no criminal prosecution can be dismissed, discontinued, or abandoned without leave of the court. Affirmative action of the court, therefore, is a prerequisite to such dismissal, and the record does not show that any such action was taken by the court below. This being true, we think it necessarily follows that there is no merit in the point made by defendant's counsel that the court below lost jurisdiction of the case, and, indeed, we think the question is settled adversely to such a contention, both in Tennessee and elsewhere. Pierce v. Bank, 1 Swan, 265; Harrison v. Commonwealth, 81 Va. 491; Ex parte Owens, 52 Ala. 473.

Nor do we think that the defendant could insist that the court below should have dismissed this case after the first term at which it was at issue, for the reason that no good cause was shown for its continuance under section 7155 of Thompson's Shannon's Code of Tennessee. In the absence of an affirmative showing to the contrary, which this record does exhibit or reveal, it will be conclusively presumed that under this section of the Code good and sufficient cause was presented to the court below prior to ordering a criminal case continued. Hobbs v. State, 121 Tenn. 413, 118 S. W. 262, 17 Ann. Cas. 177.

These matters out of the way, the real question involved in this assignment of error is whether the defendant was denied the speedy trial guaranteed to him by article I, section 9, of the Constitution of Tennessee, so that he was entitled to his discharge on the petition filed on June 30, 1919.

From what has been before stated, it is apparent that in determining this question regard must be had to three periods of time, to wit: (1) The period between the finding of the indictment on February 10, 1914, and the incarceration of the defendant in the federal penitentiary at Atlanta on February 8, 1915; (2) the period of defendant's term in said penitentiary from February 8, 1915, to October 17, 1918; (3) the period between the defendant's release from the penitentiary and the trial, to wit, October 17, 1918, to June 30, 1919.

As to the periods of time from February 10, 1914, to February 8, 1915, and October 17, 1918, to June 30, 1919, the defendant was on bail, was represented by counsel in Memphis, and was himself for the most of these periods in New York City. He admits that during these periods no effort was made, either by him in person or by his counsel, to secure a trial of this case, nor did he object to any continuance thereof being made on the motion of the district Attorney General. It is apparent that he...

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