Smith v. State

CourtSupreme Court of Tennessee
Citation77 S.W.2d 450
PartiesSMITH v. STATE.
Decision Date12 January 1935

Ben E. Groce and George C. Bertram, both of Byrdstown, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

SWIGGART, Justice.

The plaintiff in error, Baalam Smith, has appealed from a conviction of voluntary manslaughter.

The homicide charged in the indictment was committed on January 1, 1919. The indictment was returned in 1933. To this indictment Smith pleaded in abatement that a former indictment, returned at the January term, 1919, charged him with the same offense; that he had not been required to plead to the former indictment, although he had been within the jurisdiction of the court for twelve years following its return.

During the twelve years referred to in the plea, Smith was confined in the penitentiary for a homicide committed at the same time with that charged in this case.

The defendant invokes the constitutional direction that in all criminal prosecutions the accused is entitled to a speedy trial. Constitution of Tennessee, article 1, § 9.

Under the ruling in Arrowsmith v. State, 131 Tenn. 480, 175 S. W. 545, L. R. A. 1915E, 363, the state could not have required the plaintiff in error to respond to the former indictment after holding him in custody for twelve years on another charge, during which period it made no effort to bring him to trial on the second charge.

The state submits that this bar is limited to the indictment pending during the period of delay, and does not extend to a new indictment returned thereafter. In support of its position it points out that the Legislature, interpreting the Constitution, has prescribed no limitation of time on prosecutions for capital offenses. Code, § 11481.

To sustain this contention of the state would be to observe the form of the constitutional direction and deny its substance.

The second indictment was a continuation of the prosecution begun by the first. Hickey v. State, 131 Tenn. 112, 174 S. W. 269. Both indictments charged the same offense. The constitutional right which had accrued as a bar to the further prosecution of the first indictment would be defeated by evasion, if the state could avoid the consequences of its delay by the simple expedient of abandoning the first and presenting a new...

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7 cases
  • State v. Jefferson
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • 24 d5 Maio d5 1996
    ...81, 83-84 (Tenn.1973); State v. Perkins, 713 S.W.2d 689, 691 (Tenn.Crim.App.), per. app. denied (Tenn.1986).63 See Smith v. State, 168 Tenn. 265, 77 S.W.2d 450 (1935); Arrowsmith v. State, 131 Tenn. 480, 175 S.W. 545 (1915); State v. Wallace, 648 S.W.2d 264 (Tenn.Crim.App.1980), per. app. d......
  • State v. Kennedy
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • 8 d2 Junho d2 1999
    ...of prosecution. State ex. rel Lewis v. State, 1 Tenn.Crim. App. 535, 538, 447 S.W.2d 42, 43 (1969) (citing Smith v. State, 168 Tenn. 265, 267, 77 S.W.2d 450, 450 (1935)). In the present case, prosecution began with the return of the indictment. See Tenn.Code Ann. § 40-2-104; Lewis, 1 Tenn.C......
  • State v. Werner, 9836
    • United States
    • Supreme Court of South Dakota
    • 1 d2 Novembro d2 1960
    ...1037. As here applied SDC 34.2203 is not unconstitutional. In his argument defendant cites State v. Artz, supra, and Smith v. State, 168 Tenn. 265, 77 S.W.2d 450. They are based on facts much different than the case at bar. In the Artz case defendant was indicted for the murder of two perso......
  • Hottle v. Dist. Court in & for Clinton Cnty., 46289.
    • United States
    • United States State Supreme Court of Iowa
    • 21 d2 Setembro d2 1943
    ...... to review ruling of the trial court overruling motions to dismiss indictments.        Writ annulled.        [11 N.W.2d 31]Smith, Swift & Maloney and G. W. Vander Vennet, all of Davenport, for petitioner.John M. Rankin, Atty. Gen., Don Hise, Asst. Atty. Gen., and Carroll ... to trial at the next regular term of court even though it is shown that the defendant has been, since said indictment, and is now, in the state penitentiary serving a sentence for another crime? The trial court held it should not and overruled the motions to dismiss the indictments. This is a ......
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