Hale v. State

548 S.W.2d 878, 1977 Tenn. LEXIS 551

Opinion

OPINION AND ORDER OF DISMISSAL

PER CURIAM.

We sustain the motion of the State to dismiss the petition for mootness.

This action, however, is not to be construed as our approval of the procedure followed at the Preliminary Hearing in this case.

Chapter 11, Title 40, Tennessee Code Annotated, has its basic derivation in the Official Code of 1858. Its provisions are clear. The procedure is mandatory. We have held that a preliminary hearing is a critical stage in the prosecution of a criminal action, and have recognized that it is mandated by statute. McKeldin v. State, 516 S.W.2d 82 (Tenn.1974).

We further held in McKeldin that a preliminary hearing is a “pretrial type of arraignment where certain rights may be sacrificed or lost”, 516 S.W.2d at 85, and by quotation from Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), we recognized that it is an adversary proceeding and stressed the value of cross-examination. The usual rules of evidence are applicable to preliminary hearings.

In the context of this case, the matter is now moot. Counsel could have protected his client’s right to a proper preliminary hearing by filing a petition for common law certiorari and supersedeas with one of the judges of the Court of Criminal Appeals, and, if necessary, with a member of this Court.

Let the petition be dismissed.