State v. Marks
| Decision Date | 04 December 1970 |
| Citation | 464 S.W.2d 326,3 Tenn.Crim.App. 539 |
| Parties | STATE of Tennessee, Plaintiff in Error, v. Sadie MARKS alias Madam Bell, Defendant in Error. |
| Court | Tennessee Court of Criminal Appeals |
David M. Pack, Atty. Gen., C. Hayes Cooney, Asst. Atty. Gen., Harold D. Hardin, Asst. Dist. Atty. Gen., Nashville, for plaintiff in error.
J. Victor Barr, Jr., Nashville, for defendant in error.
The State appeals from the judgment of the Criminal Court of Davidson County in sustaining a plea in abatement filed by the defendant abating the indictment returned by the Davidson County Grand Jury. The indictment abated charged Sadie Marks, alias Madam Bell, with committing the offense of obtaining personal property (money) by false pretenses, to wit, palm reading.
It appears in the record that the court predicated its action in abating the indictment on the motion of the defendant that the prosecutor, a Mrs. Mary Hutcherson, did not appear before the grand jury when the indictment was returned, and that the indictment as returned therefore failed to meet the standards of T.C.A. 40--1704. The court further found that the indictment as returned did not comply with T.C.A. 40--1705, subsection (9), (want of a prosecutor). In the technical record attached to the plea in abatement is a letter from the prosecutrix in which she inquired of the attorney general how the grand jury could return the indictment without her being present. There is mutual agreement between the State and defendant that, for fact, the prosecutrix did not appear before the grand jury.
The State contends the trial court erred in abating this indictment. With this contention of the State we agree. We note the questioned indictment clearly shows that Mrs. Hutcherson was designated thereon as the prosecutor. We think, therefore, that the requirements of T.C.A. 40--1704 have been met. In view of this holding the standards enunciated in T.C.A. 40--1705, subsection (9) are of no concern in this opinion.
We have read the authorities relied upon by the defendant. We summarize briefly. Moyers v. State, 30 Tenn. 40 (1850) is of no comfort to the defendant. In substance, the holding there was that the prosecutrix, a feme covert, was not a responsible person in law.
In Medaris v. State, 18 Tenn. 239 (1837) the Supreme Court held that a name on the indictment where the prosecutor is usually found is not enough to satisfy the statute. The statute at the time required dismissal in the absence thereof. The defendant finds no comfort, as we view it, in the holdings in that case.
In Rodes v. State, 78 Tenn. 414 (1882) basically the holdings in that case, which as we view it, are of no comfort to the defendant, are that a plea for the want of a prosecutor must be made before the plea to the merits.
Brooks v. State, 156 Tenn. 451, 2 S.W.2d 705 (1928) is also of no comfort. Its holding in substance is that after a plea to the merits a motion for want of a prosecutor is waived.
In our review the underlying principle to be deduced from T.C.A. 40--1704 is the salutary principle that the defendant, in the event he is found innocent, has a party to look to for redress. That requirement...
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...was based upon inadmissible hearsay testimony); Casey v. State, 491 S.W.2d 90, 91 (Tenn.Crim.App.1972) (same); State v. Marks, 3 Tenn.Crim.App. 539, 464 S.W.2d 326, 327 (1970) (same); Parton v. State, 2 Tenn.Crim.App. 626, 455 S.W.2d 645, 648 (1970) 12 The record reflects, however, that Alf......
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