On March 17, 1954, Emanuel Tepper was indicted for the crime of forcibly detaining Anna Faye Gross, with intent to have carnal knowledge of her. When the case came up for trial on August 23', 1954, the Commonwealth moved the court to file away the indictment with the right to reinstate it on its own motion and later bring the defendant to trial. Tepper objected to the motion and moved the court to try the case at the present or a subsequent term of court. ,This motion was overruled, and the motion of the Commonwealth to file away the indictment with leave to reinstate was sustained. Tep-per objected and excepted to these rulings, and moved for an appeal to this Court, which was granted.
The question to be determined on this appeal js entirely one of law as to whether the order is a “final order” within the meaning of. Section 335 of the Criminal Code from which an appeal will lie.
This question was before the Court in the case of Jones v. Commonwealth, 114 Ky. 599, 71 S.W. 643. In that case it was held it was error, to file away an indictment with leave to reinstate where the accused had been served with process and objected to the order. That case is controlling here. .
Judgment reversed, with directions to set it aside, and for proceedings consistent with this opinion.