114 Ky. 599 | Ky. Ct. App. | 1903
Opinion of the court by
— Reversing.
The appellant, Hiram Jones, was indicted by the grand jury of Bell county for the murder of one James Shumate, resulting, as alleged, from the willful, wanton, and malicious act of the appellant in placing obstructions on the railroad track, whereby an engine and cars of which Shumate had charge as engineer were derailed and wrecked, and he crushed and.wounded to such an extent that he at once died. The indictment was returned and filed in the Bell circuit court October 18, 1901. On the same day appellant appeared in court, and the case was, by order of the court, set for trial on the seventeenth day of the term in progress. Thereafter (and presumably on the seventeenth day) a continuance of the case was granted the appellant, and by consent of parties it was set for trial on the thirteenth day of the succeeding May term. The appellant was thereupon allowed bail in the sum of $2,000. On the sixteenth day
The practice of filing away indictments, though never authorized by legislative enactment, has long obtained in this Rtate. It either came to us as a part of the common law, or was devised by some one or more of the pioneer jurists of our Commonwealth, to whose wisdom we are indebted for much that is good in our present system of jurisprudence. At any rate, the long continuance of the practice, and its convenience as well, admonish us that it would be unwise to abrogate it altogether. We think it the better policy, therefore, in determining whether this practice should have been followed in the case before us, to lay down some general rules which will indicate to the circuit courts the limitations that should be observed in the future attempts to follow it. This court has in two instances decided that the filing away of an indictment with leave to reinstate did not operate as a dismissal thereof, but only as a discontinuance of the case for the time being. The
It is contended for the Commonwealth that the order appealed from is not final, and, if so, that the appeal should be dismissed. In a sense the order does not appear to be final, for it does not prevent the Commonwealth’s attorney from redocketing the case and renewing the prosecution at any time, but in a much more important sense, and as it affects the appellant, the order must, we think, be treated as final for the purposes of an appeal, for while it stands be is powerless to secure a trial, however innocent he may be, yet all the while resting under a grave charge affecting bis reputation and endangering his life or liberty. What remedy has he if refused the right of appeal? If he were to move the lower court to redocket the case and dismiss the indictment, the order of that court overruling the motion would be. no more final than the one appealed from. Neither mandamus nor injunction will lie to control a court in the exercise of its judicial discretion, and the writ of prohibition can only be employed to prevent an inferior court of limited jurisdiction from proceeding in a matter out of its jurisdiction. We are of the opinion, therefore, that the court has the jurisdiction to entertain tne appeal, and that to hold otherwise, would amount to a denial of justice.
The judgment or order appealed from is reversed, and the cause remanded, with directions to the lower court to set it aside, and to redocket the case, that the appellant may have as speedy a trial as will be consistent with the ends of justice.