Wells v. Commonwealth

• Decision Date: 17 December 1887
• Citation: 6 S.W. 150
• Parties: Wells v. Commonwealth.
• Court: Kentucky Court of Appeals

6 S.W. 150

Wells v. Commonwealth.

Court of Appeals of Kentucky.

December 17, 1887

Appeal from circuit court, Livingston county.

E Newton Wells was convicted on an indictment for perjury. A new trial was granted. The old indictment was dismissed, and on a new indictment he was convicted and appealed.

J W. Bush, for appellant.

P W. Hardin, for appellee.

HOLT J.

The appellant, E. Newton Wells, was convicted of false swearing upon a defective indictment. Upon his motion, a new trial was granted. The court then, upon the motion of the prosecuting attorney, dismissed the indictment, and resubmitted the charge to the grand jury, who reindicted him, and he was again convicted. Upon the last trial, he relied upon the former conviction, and his having been once in jeopardy, as a bar to any further prosecution. When, however, a new trial has been granted to the accused upon his own request, he cannot plead the former trial and conviction in bar of further proceedings. Equally as well could he, after a reversal by an appellate court, at his instance, of a judgment of conviction, rely upon it in bar of another trial. When he, upon his asking, obtains a new trial, the case stands as if it had never been tried; and it follows, of course, that the trial court may dismiss the indictment resubmit the charge to the grand jury, and, upon the finding of a new indictment, retry the case. This question was decided by this court in the case of Haskins v. Com., 1 S.W. 730, (November 13, 1886.)

Section 243, Crim. Code, says: "The attorney of the commonwealth, with permission of the court, may, at any time before the case is finally submitted to the jury, dismiss the indictment as to all or part of the defendants, and such dismissal shall not bar a future prosecution for the same offense." In the case of Williams v. Com., 78 Ky. 93, this provision was held to be unconstitutional only so far as it attempted to authorize a dismissal after jeopardy had attached, without its operating as a bar to a further prosecution for the same charge. Here, however, the granting of the new trial placed the parties in the same condition as if there had been no trial; and before the commencement of a second one, and before jeopardy attached, the indictment was dismissed.

The first indictment was found in February, 1883. The case was tried once, and continued from term to term, and several times upon the motion of the accused, until August, 1887 when the indictment was dismissed, and a new one found. It was presented upon one day, and the next day the accused filed his affidavit, and asked a continuance of the case until the next term of the court. The court overruled the motion, and set the case for trial upon the fourth day thereafter. It awarded to the accused all the process he asked to compel the attendance of the two witnesses on account of whose absence the...