State ex rel. Underwood v. Brown

• Decision Date: 27 July 1951
• Citation: 193 Tenn. 113,29 Beeler 113,244 S.W.2d 168
• Parties: , 193 Tenn. 113 STATE ex rel. UNDERWOOD v. BROWN, Commissioner of Institutions, et al.
• Court: Tennessee Supreme Court

Page 168

244 S.W.2d 168

29 Beeler 113, 193 Tenn. 113

STATE ex rel. UNDERWOOD v. BROWN, Commissioner of Institutions, et al.

Supreme Court of Tennessee.

July 27, 1951.

On Petition to Rehear Dec. 14, 1951.

Knox Bigham, Asst. Atty. Gen., for plaintiff in error.

Carl R. Hardin, Nashville, for defendant in error.

BURNETT, Justice.

This is an appeal by the Commissioner of Institutions and the Warden of Fort Pillow State Farm from a judgment sustaining relator's petition for a writ of habeas corpus, and releasing relator from the custody of the defendants.

On November 20, 1948, in case No. 17039 in the Criminal Court of Davidson County, the relator, on his plea of guilty, was convicted of the offense of housebreaking. On November 26, 1948 judgment was pronounced on the verdict in this case and relator was sentenced to serve not more than three years in the penitentiary. Relator had also been indicted in case No. 17405 in the Criminal Court of Davidson County, for the offense of housebreaking. On April 29, 1949, while relator was undergoing imprisonment in Fort Pillow State Farm by virtue of the sentence in case No. 17039, case No. 17405 was called for trial. Relator was not present in court but was represented by able counsel. Relator's attorney entered a plea of guilty for him in case No. 17405, and relator was convicted and sentenced to serve not more than three years in the penitentiary. This judgment was rendered at the January, 1949, term of the court. At the May, 1949, term of court, and on the 16th of September, 1949, the court entered an order setting aside the judgment in case No. 17405 entered on April 29, 1949, on the ground that the defendant was not in court at the time judgment was entered and that therefore the judgment was void. On the same date the case was placed on the retired docket.

At the May term of court, 1950, and on the 10th day of May, 1950, relator was brought into court, entered a plea of guilty in case No. 17405, was convicted and sentenced to serve not more than three years in the State penitentiary, said sentence to commence at the expiration of his former sentence. At this subsequent and last hearing wherein the relator was present he was likewise represented at this time by able counsel.

It is the contention of relator that the judgment rendered on May 10, 1950, in case No. 17405 is void because the court lost jurisdiction of the cause by the expiration of the term at which the judgment of April 29, 1949, was entered.

It is the contention of defendants that the judgment of April 29, 1949, is void, that the court did not lose jurisdiction to bring relator to trial because of the expiration of the term, and that the judgment of May 10, 1950 is valid.

There can be no question but that the judgment of April 29, 1949, was absolutely void because the relator was tried, convicted and sentenced in his absence. Andrews v. State, 34 Tenn. 550. This being true, the judgment of April 29, 1949, was no judgment and was of no effect or consequence.

It cannot be doubted and in so far as we know has never been held to the contrary but that a court at the expiration of the term or after 30 days, loses control or jurisdiction over its final judgments. State v. Dalton, 109 Tenn. 544, 72 S.W. 456. This rule does not mean that a court loses jurisdiction to proceed in a cause where no final judgment wes rendered, that is, where a judgment is void then there is no judgment and consequently the court does not lose jurisdiction over the matter. The judgment of April 29, 1949, being void no action was required to revoke it; it was a nullity in itself.

Does a Court, by the expiration of a term without more, (nothing is done in a case where a judgment rendered therein is void) lose its jurisdiction to bring a defendant to trial on an indictment pending during the term? This proposition seems to us to answer itself. This Court has held that a judgment may be pronounced after the expiration of the term at which the verdict was received. Greenfield v. State, 66 Tenn. 18; Whitney v. State, 74 Tenn. 247; Dunn v. State, 124 Tenn. 267, 275, 154 S.W. 969; McCall v. State, 167 Tenn. 329, 333, 69 S.W.2d 892. The Court said in Greenfield v. State, supra, 'but until the judgment is rendered, or the cause in some way disposed of, it is still pending, and stands continued with the unfinished business until the next term.' We therefore hold that simply because of the expiration of a term without more, that the Court does not lose jurisdiction to bring a defendant to trial on an indictment pending during the term. This seems to be what Code Section 11717 means. This Section provides in substance that the Court may order an indictment to be dismissed, where the trial has not been postponed on defendant's application, if 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. If the court lost jurisdiction over the indictment by the expiration of the term the court's action in dismissing the indictment at the next term would be an idle ceremony. We therefore hold that the indictment in case No. 17405 was pending on May 10, 1950, and that the court had jurisdiction of the cause, and that the judgment rendered on that date is a valid judgment.

It is contended by the defendant in error that when the trial judge, after setting aside the judgment of September 16, 1949, entered an order placing this case on the retired docket that the effect of this order was to operate as a dismissal, or nolle prosequi, rendering any further proceeding on the same indictment void. We cannot accede to this proposition. A nolle prosequi is defined in Black's Law Dictionary thus: 'A formal entry upon the record, by the plaintiff in a civil suit or the prosecuting officer in a criminal action, by which he declares that he 'will no further prosecute' the case, either as to some of the counts, or some of the defendants, or altogether.' When the case is placed on the retired docket, as is frequently done by the courts of this State, in doing so the court in no way says that the case is dismissed or will not be further prosecuted. The case is merely retired until a time when the defendant may be brought into court and properly tried on the then pending indictment. The trial judge who rendered the judgment of September 16, 1949, and the order retiring the case makes an affidavit in this record to the effect that it was impossible to bring the relator into court for trial at that time and by consent of the relator's then counsel the case was placed on the retired docket until he could be brought to court for trial at a subsequent time. At a later date the relator was brought into court and again represented by able counsel wnen he pleaded guilty to the indictment and was sentenced under the sentence of May 10, 1950, which we have heretofore held valid.

It is thus shown by the affidavit of the judge, last above referred to, that passing this case to the retired docket until the defendant could be brought into court was in effect done with his consent through his counsel at the time the case was passed to the retired docket. Certainly and without a peradventure of a doubt this action of the defendant through his counsel cannot at a later date be taken advantage of by him or construed as operating as a nolle prosequi.

It is next contended by the appellee in his reply brief that the judgment of May 10, 1950, is void because the appellee was denied a speedy trial as guaranteed by Section 9 of Article I of our Constitution.

It is not every delay in the trial of an indictment that amounts to denial of the constitutional right to a speedy trial. Raine v. State, 143 Tenn. 168, 226 S.W. 189. In so far...