State v. Hudson

• Decision Date: 17 July 1972
• Citation: 487 S.W.2d 672
• Parties: STATE of Tennessee, Plaintiff in Error, v. Donald HUDSON, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 672

487 S.W.2d 672

STATE of Tennessee, Plaintiff in Error, v. Donald HUDSON, Defendant in Error.

Court of Criminal Appeals of Tennessee.

July 17, 1972 Certiorari Denied by Supreme Court Nov. 20, 1972.

David M. Pack, Atty. Gen., John B. Hagler, Jr., Asst. Atty. Gen., Nashville, Edward E. Davis, Dist. Atty. Gen., Chattanooga, for plaintiff in error.

Michael M. Raulston, Alley & Raulston, Hixson, for defendant in error.

OLIVER, Judge.

OPINION

This record fairly shows and the parties agree that (1) on September 29, 1971 the Hamilton County Grand Jury returned three presentments against the defendant, in two of which he was charged with selling marijuana and in the third with selling LSD; that (2) the judge of Division III of the Hamilton County Criminal Court quashed those presentments on motion of the defendant and ordered him held for further action of the Grand Jury and set his bail at $1000 in each case, sustained his motion for a preliminary hearing in each case, and on January 11, 1972 ordered issuance of a 'bench warrant' for the defendant in each of the three cases directing the sheriff to arrest him and present him before the Hamilton County General Sessions Court for a preliminary hearing; that (3) on January 19, 1972 the Hamilton County Grand Jury returned three new presentments against the defendant charging him with the same offenses charged in the three original presentments; that (4) on January 26, 1972 the District Attorney General declined to prosecute the defendant in the General Sessions Court upon the 'bench warrants'; that (5) on February 10, 1972 the trial judge sustained the defendant's motion to dismiss the three new presentments upon the ground, stated by the court, 'that the defendant was denied a preliminary hearing. Although the law requires it, and although it was ordered by this Court, it has been thwarted by the action of the Attorney General in refusing to proceed on those warrants issued out of this Court returnable to the General Sessions Court.'

The court's order of dismissal entered on the Minutes recited, in pertinent part: 'and after hearing proof and argument, it appearing to the Court that the defendant was denied a preliminary hearing by the action of the State, through its District Attorney General, and the Attorney General's refusal to prosecute on a warrant issued out of this Court, and made returnable to the General Sessions Court pursuant to an order of this Court, that the defendant be granted a preliminary hearing as provided by law, and it being the opinion of this Court that the defendant was entitled to said preliminary hearing as provided by Chapter 245 of the Public Acts of 1971, and that while this Court would have jurisdiction to appoint a prosecuting attorney for matters pending in this Court where the Attorney General refuses to prosecute, only the General Sessions Court would have such authority there, and that the action of the Attorney General in refusing to prosecute falls a little short of contempt of Court under the order as made, the only means remaining for this Court to see that the rights of the defendant are enforced, is to dismiss the pending indictments. The Motion To Dismiss is sustained and it is ordered that the Indictments be dismissed.' The State has appealed.

In our opinion, after a careful study of this entire record, the trial judge was led into error in this case by the persistent and untenable insistence of defense counsel that the defendant was entitled to a preliminary hearing under TCA § 40--1131 notwithstanding the fact that the Grand Jury had already returned presentments charging him with the offense indicated.

The only reason appearing in this record for quashing the original presentments is the statement of the trial judge, made in rendering his decision upon the motion to dismiss the new presentments, that they 'were deficient.' Neither of those original presentments nor the motion to quash them appears in this record. But we assume, as we must in the absence of anything indicating otherwise, that the trial judge properly quashed the original presentments for an infirmity on their faces, for the peculiar office of a motion to quash an indictment or presentment is to attack and challenge it for that reason. State v. Smith, 1 Tenn.Cr.App. 163, 432 S.W.2d 501; Smith v. State, 207 Tenn. 219, 338 S.W.2d 610; State v. Davis, 204 Tenn. 553, 322 S.W.2d 232.

As stated in each 'bench warrant,' as well as in his opinion sustaining the defendant's motion to dismiss the present presentments, the trial judge ordered the defendant held for further action of the Grand Jury when he quashed the original presentments, apparently intending thereby to order those presentments to be recommitted to the Grand Jury for remedying the defects.

The fact remains, however, that in returning each of those original presentments the Grand Jury found probable cause for believing that the defendant committed the offenses charged therein. The only function of the Grand Jury with reference to offenses and alleged offenses it investigates is to determine the question of probable cause. That is to say, the Grand Jury examines and scrutinizes evidence in support of the charge, and must then say from that whether there is probable cause to believe that the person in question committed the offense and should be formally accused thereof by an indictment or presentment and brought to trial. So, simply because the original presentments may have been defective in form, it cannot be said that they did not represent a finding of probable cause by the Grand Jury.

Likewise, the only purpose of a preliminary hearing is to determine whether there is probable cause to believe the accused committed the offense charged, TCA §§ 40--1116 and 40--1117, and to fix the amount of bail in bailable offenses, TCA §§ 40--1117 and 40--1119.

So the trial judge's first basic error becomes plain. The question of probable cause having been determined by the Grand Jury, the defendant obviously had no right to have the same question redetermined by a General Sessions Judge.

The Constitution of Tennessee, Article I, Section 14, provides that no person shall be put to answer any criminal charge but by Presentment, indictment or impeachment. TCA § 40--301 implements that constitutional provision in the same language. It is further implemented by TCA §§ 40--302, 40--1605, 40--1606, 40--1609 and...