169 Ky. 650 | Ky. Ct. App. | 1916
Opinion op the Court by
Reversing.
M. O. Winfrey was indicted in the Bell circuit court for the offense of criminal abortion under section 1219a
“Upon the calling of this case for trial, the Commonwealth’s attorney, Hon. J. Gr. Forester, made the following endorsement on the indictment, to-wit:
“ ‘As Commonwealth’s attorney, I hereby move to dismiss this case for the reason that since the last term of this court, and on February 1, 1916, the defendant married the prosecuting witness Nannie Louise Lynn, and. therefore she became disqualified as a witness against him, she being the only eye-witness- to the crime, and the Commonwealth being unable without her testimony to make a case, the indictment therefore is dismissed; a certified copy of the marriage is filed herewith. This March 15th, 1915, J. Gr. Forester.’ And moved the court to'dismiss the case, and in support of said motion filed a certified copy of the marriage-of the defendant M. O. Winfrey to. the prosecuting witness Nannie Louise Lynn, to which motion the defendant objected. The defendant announced ready and demanded' a .trial of the case, to which the Commonwealth objected, and insisted that it was entitled, as a matter of law, to have this case, dismissed without a. trial.
.. “ The court being advised is of the opinion thát the. grounds endorsed on the indictment are sufficient to support the motion of the Commonwealth, if no. objection was made by the defendant, but that the motion ought not to prevail over the objection of the defendant.
“It is therefore ordered and adjudged that the motion of the Commonwealth to dismiss this case is overruled..
“It is further ordered and adjudged that the defendant is entitled to have this case tried upon its. merits, and the same is passed until the 45th day of its. present term of this court for that purpose.
‘ ‘ To the ruling of the court in overruling its 'ihb'tioii to dismiss and holding that 'fee defendant is entitled to a trial of this case on its meiuts the Commonwealth excepted and pr ayed an appeal to the Court of Appeals, which is granted.”
Wherefore it results that this court is without power to issue a writ of prohibition to control the action of a circuit judge upon a motion to dismiss an indictment, and the application for a writ of prohibition herein must be denied.
Counsel for appellee contends that under the sixth amendment to the constitution of the United States
The effect of the latter motion, when granted, is to continue indefinitely the charge against the accused and to deny him a speedy trial such as is guaranteed to him by the constitutional amendment above referred to; but a motion to dismiss, when allowed, terminates absolutely the prosecution and unconditionally releases the accused. It is true that the .dismissal is not a bar to another indictment upon the same facts, but it cannot be said that because of that fact the accused has been., denied a speedy trial of the charge existing against him. It would be a vain and foolish thing to require the-Commonwealth to read the indictment to a jury, and then announce that by reason of death of its witness or inability from any other cause, it was unable to introduce any evidence in support of the indictment. The court then of necessity would have to instruct the jury to return a verdict of acquittal. The effect of this farcical procedure would be neither a vindication nor an exoneration of the defendant, even if he was entitled to demand' either, any more than a dismissal of the indictment, but it would render him immune from- subsequent prosecution if sufficient testimony should thereafter become available, and it would annul so much of section 243 of the Code as provides that such a dismissal of an indictment is not a bar to a subsequent prosecution. No more striking illustration of the injustice of
Appellant by his marriage to the only witness who could supply the testimony necessary to sustain the indictment has by his own act defeated, for the time at least, the attempt upon the part of the Commonwealth to convict him of a crime, and his counsel now argues that the Commonwealth should be required to proceed .to a trial and certain slaughter in order that his client may enjoy immunity from the risk of a future prosecution if he and his wife should hereafter be divorced and the testimony thereby become available that cannot now be produced against him. In other words immunity is demanded of the Commonwealth upon the ground that the defendant and the Commonwealth’s only eye-witness are entitled to be relieved from the necessity of a continued observance of the protecting marriage vows. The recognition of such a right could be justified only where clearly warranted by express provision of law, and we know of no such provision.
The clear purpose' and only guaranty of the constitutional. amendment relied upon is that the strong .arm of the government shall never be permitted to hold an accused person without opportunity for a fair and speedy trial. Under it the accused is entitled to demand a. trial or a release. It was never intended to and cannot be construed to offer to any person the opportunity to forestall a future prosecution. Thé dismissal of the indictment here would release the defendant absolutely from the charge. That is-all to which, under the constitution and the law, he is entitled, and in our judgment,. the trial court upon the showing made should haye sustained the motion of the Commonwealth attorney to dismiss the indctment herein, as the order shows clearly the ruling resulted solely from the- objection of the accused and not from the insufficiency of the facts stated by the Commonwealth attorney in his written statement.
■ Wherefore the- ruling of. the trial court upon the motion to dismiss is reversed- with direction to sustain the motion.