dissenting.
I dissent.
Construing T.C.A. § 40 — 1131, the majority held in Waugh v. State, 564 S.W.2d 654 (Tenn.1978), that when proceedings begin with a presentment or an indictment without the accused being in custody or upon bail for the offense charged, the accused is not entitled to a preliminary hearing. In short, a preliminary hearing is available only when the first step in the prosecutorial process is an arrest, with or without a warrant. I concurred in that part of the opinion.
In Waugh the Court expressly pretermit-ted any consideration of the issue that confronts us in this case, referring to it as the “curious time limitation contained in the last sentence of T.C.A. § 40 — 1131.” Id. at 661.
Here, that “curious” time limitation is described as “the somewhat troublesome and ostensibly ambiguous language of this statute.”
We are concerned here with the last sentence of the statute wherein the only conceivable ambiguity is whether the phrase “the accused’s arrest” refers to the initial arrest or an arrest on capias. The majority opinion resolves that question, and I am in full accord with the conclusion that the phrase refers to the initial arrest only.
As for the effect of the unambiguous thirty-day limitation, the majority opinion does not deny its existence or attempt to *83alleviate its application based upon any language of the statute. The thrust of the opinion, as I understand it, is simply that in the interest of fair play we should abrogate the thirty-day limitation, except “[w]hen all parties — including the defendant, who must act promptly — have acted in good faith and in compliance with the statute.”
This is pure court-decreed legislation. If this Court is of the opinion that preliminary hearings are exclusively within the purview of the judicial department of government, then we should say so, ignore the statute, and write our own rules governing such hearings. In my view, it is not appropriate for this Court to continue the statutory amending process begun in Waugh.
The realities of the statute are that the Legislature, irrespective of the quality of draftsmanship, granted a very limited preliminary hearing right, applicable in the first instance only to defendants arrested, with or without a warrant, prior to presentment or indictment, and limited in the second instance to a period of thirty days immediately following the date of arrest by the device of allowing a motion to quash any indictment returned within that period.
While the statute does not expressly prohibit the holding of a preliminary hearing more than thirty days after the date of arrest, the state is free to indict after that period; and, when, and if, an indictment is returned the preliminary hearing is rendered moot. That is because of the fundamental law of this state that a defendant can only be brought to trial by indictment or presentment of a grand jury and that a magistrate’s decision that there is no probable cause does not preclude an indicted defendant from going to trial. Tenn.Const., Art. I, § 14; T.C.A. §§ 40-301, 302; State v. D’Anna, 506 S.W.2d 200 (Tenn.Cr.App.1973).
In my view, the Legislature simply did not intend to grant an accused an inalienable right to a preliminary hearing irrespective of time limitations or action by the grand jury on the offense charged, but instead knowingly and expressly limited that right. It is our duty to interpret applicable statutes as written, not as we would have authored them.
I would affirm the Court of Criminal Appeals and remand for trial upon the indictments.