Thurston v. State

• Decision Date: 30 September 1866
• Citation: 43 Tenn. 115
• Parties: Thurston v. The State.
• Court: Tennessee Supreme Court

43 Tenn. 115

Thurston

v.The State.

Supreme Court of Tennessee.

September Term, 1866.

FROM MONROE.

The plaintiff was convicted at the May Term, 1866. Judge E. T. HALL, presiding. There was a motion for a new trial, and appeal by defendant.

JINKINS and BROWN, for Plaintiff in Error.

THOS. H. COLDWELL, Attorney General, for the State.

HAWKINS, J., delivered the opinion of the Court.

The plaintiff in error was convicted, at the May Term, 1866, of the Circuit Court, for the County of Monroe, of an assault and battery, upon one Wiley Watson, with a whip, having in his possession, at the time, a deadly weapon, with intent to intimidate said Watson, and prevent him from defending himself. The jury fixed the time of his imprisonment, in the penitentiary, at three years.

A new trial was asked for, which was refused, whereupon the Court proceeded to pronounce judgment upon the verdict: to reverse which, an appeal is prosecuted to this Court. The counsel for the plaintiff in error insist that the record is fatally defective, and, therefore, the judgment must be arrested. To this it is answered, by the Attorney General, upon the part of the State, that this Court will not arrest the judgment, however defective the record may be, inasmuch as the plaintiff in error omitted to enter a motion in arrest, in the Court below. Upon this point we have been unable to find any direct authority, and counsel likewise admit that they have been unable to find any, after a thorough examination. But the weight of authority seems to be, at least such seems to have been the practice in this State, from its earliest judicial history, down to the present time, that in criminal proceedings, if this Court can see, from an inspection of the record, that it is fatally defective, it will arrest the judgment thereon, although no motion in arrest was entered in the Court below; and it seems to us this rule is well sustained upon principle.

We come now to consider of the question, Is the record fatally defective? and we think it is.

The indictment is entitled of the May Term, Circuit Courf, A. D., 1865, and is indorsed: “Wiley Watson, Prosecutor,” also “A true bill--John Minnis, foreman of the grand jury.” But it otherwise wholly fails to show when, where, how, or by whom it was returned into Court. The record wholly fails to show where, or by whom, the May Term of the Circuit Court for Monroe County, was holden; and, aside from inferences we may draw from the indictment itself, and the indorsement thereon, it nowhere appears, in this record, that any such Court was, in fact holden. It...