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140 Ky. 580

Commonwealth v. Smith

Court of Appeals of Kentucky

Decided November 11, 1910

Court of Appeals of Kentucky · decided 1910-11-11

<p>1. Indictment — Dismissal—Failure to Refer to Grand Jury — Final Order — Reinstatement.—When an indictment is dismissed unless the matter be then referred to the grand jury it is a final order in that case. After the term at which the order is entered the court has not the power to set it aside. Should the court or the prosecution desire to retain control of the case -after the term, it may be done by an order filing it away to be redocketed on motion of tbe commonwealth, but without such reservation an unconditional dismissal is an end of that case. If therefore the commonwealth desires to reinstate the prosecution it may do so by procuring another indictment or by a warrant of arrest sworn out before an examining magistrate.</p> <p>2. Same — Subsequent Indictment — Trial Thereunder. — The order dismissing the indictment though a final order does not bar another indictment or prosecution. Indeed until tbe defendant is put in jeopardy under an indictment we know of no practice, that would estop the commonwealth from indicting him and trying him upon a charge of the crime.</p>

Key passage — most relied on by later courts

“does not bar another indictment or prosecution.”

quoted by 1 later decision, including Davidson v. Castner-Knott Dry Goods Co., Inc.

“proceed as in other original prosecutions.”

quoted by 1 later decision, including Davidson v. Castner-Knott Dry Goods Co., Inc.

Relies on Jones v. Commonwealth

Good law ✅— No negative treatment on recordhow we know

Decided 1910-11-11

How this case has been cited

Cited by 13 later decisions — most recently August 2018

13 state decisions

4019101920193019401950196019701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Opinion of the Court by

Judge O’Rear

¶2Affirming.

¶3Harvey Smith was indicted by the grand jury of Rockcastle county in 1903, charged with murder. Not being in custody a bench warrant was issued for him. The sheriff being nnable to find the defendant endorsed and returned the bench warrant accordingly. The case was therefore continued upon the docket, and an alias bench warrant ordered, with like resnl-t. The cause was again continued, and plnries bench warrant issued, with the same result. The court then entered this order, at the September term, 1903:

¶4“The defendant’s whereabouts being unknown, and .as the prosecution will never be barred by limitation it is ordered by the court that the same be and is hereby dismissed.”

¶5Thus the matter rested until the May term, 1,910, of the court, when the commonwealth’s attorney moved the *581court to redocket the case. The motion, was overruled on the ground that the circuit court deemed it had no no longer the .power to enter an order in that case. The commonwealth has prosecuted this appeal that the law may be certified.

¶6When an indictment is dismissed, unless the matter be. then referred to the grand jury, it is a final order in that case. After the term at which the order is entefed, the court has not the power to set it aside. Should the court or the' prosecution desire to retain control of the case after the term, it may be done by an order filing the im dictment away, to be redocketed on motion of the commonwealth. (Jones v. Commonwealth, 114 Ky. 599.) But without such reservation, an unconditional dismissal is an end of that case. If therefore, the commonwealth desires to re-instate the prosecution, it may do so by procuring another indictment, or by warrant of arrest sworn out before an examining magistrate, and’then proceed as in other original prosecutions. The order "dismissing the indictment, though a final order, does not bar another indictment or prosecution. The wording of the particular order here being discussed shows that the accused had never been placed in jeopardy under it. It shows on its face that, the court treated it as a dis/inissa] without prejudice to another indictment. Indeed, until the defendant is put in jeopardy under an indictment, we know of no practice that would estop the commonwealth from indicting him and trying him upon a charge of the crime.

¶7Judgment affirmed.

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