Bilger v. Walden

409 S.W.2d 162, 1966 Ky. LEXIS 46

Opinion

WILLIAMS, Judge.

This is an original proceeding in this court to compel the Honorable Cass R. Walden, Judge of the Barren Circuit Court, to dismiss a charge of grand larcency that has been pending in the Barren Circuit Court since November 1964.

Petitioner avers his right to a speedy trial has been denied. The charge has been set for trial three times. In each instance the Commonwealth was unable to prosecute because of the unavailability of witnesses. The respondent has advised the Commonwealth that the case will be set for trial at the January 1967 term, and if the Commonwealth is unable to prosecute the case at that time because of unavailable witnesses the charge will be dismissed. Under the facts we are unable to conclude the respondent has not granted the petitioner a speedy trial.

The petitioner is asking this court to compel the circuit court to dismiss the charge. Mandamus will not lie to control the discretion of the circuit court. It only compels the court to exercise its discretion. May v. Conley, Judge, Ky., 408 S.W.2d 431 decided November 11, 1966; Farrow v. Downing, Judge, Ky., 374 S.W.2d 480 (1964); Kaufman v. Humphrey, Judge, Ky., 329 S.W.2d 575 (1959); Hargis v. Swope, Judge, 272 Ky. 257, 114 S.W.2d 75 (1938).

The order of mandamus is denied.