Baldwin v. State
| Decision Date | 08 April 1959 |
| Citation | 204 Tenn. 639,325 S.W.2d 244,8 McCanless 639 |
| Parties | , 204 Tenn. 639 Robert L. BALDWIN v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
William C. Sugg and Fred I. Womack, Fayetteville, for plaintiff in error.
James M. Glasgow, Asst. Atty. Gen., for the State.
This is an appeal from the Criminal Court of Lincoln County from a conviction, and sentence to the State penitentiary of Robert L. Baldwin, on the charge of having carnal knowledge of a female over the age of 12 years and under 21 years. The appeal is solely upon the technical record.
Immediately following the trial and conviction of the defendant, a motion for a new trial was seasonably made and overruled. An appeal was perfected by the execution of a proper bond. No bill of exceptions was ever tendered the trial judge, and, of course, none was signed and authenticated by him. After the lapse of time allowed by the court for filing such bill of exceptions, the trial judge revoked the appeal bond and ordered that the defendant be taken in custody and committed to the State penitentiary, which order was duly complied with.
Thereupon the defendant filed a petition, addressed to the Chief Justice, seeking writs of certiorari and supersedeas on the ground that the action of the trial judge was illegal and void because he had lost jurisdiction of the case. Upon a full hearing of counsel and the Assistant Attorney General, the contention of the defendant was upheld and the writ of supersedeas was issued and the defendant released from the penitentiary. We now have the case on direct appeal with assignments of error.
The sole question for determination is whether or not certain affidavits, which were filed in support of the defendant's motion for a new trial, are a part of the technical record. These affidavits relate to the misconduct of the Sheriff. The substance of these affidavits is that after the jury was sworn to try the case the Sheriff entered the jury room, conversed with individual jurors and made prejudicial statements about the defendant to this effect, 'that he had been mixed up in trouble like this before' and that 'he should be in the penitentiary.'
Some time after the record was filed with the Clerk of this Court, and after it had been set down for argument (March 21, 1959) the trial judge filed an affidavit, which reads as follows:
'I hereby certify that the affidavits of jurors filed by the defendant, Robert L. Baldwin, as exhibits to his motion for new trial were all the evidence introduced before me on the hearing of his motion for new trial.
'This the 8th day of March, 1959.
/s/ Robert S. Brady Judge'
The same was duly verified before the Clerk of the Circuit Court.
The Assistant Attorney General has moved the Court to strike the aforesaid affidavit of the trial judge on the ground that he was without any legal authority to file it, because he lost jurisdiction of the case when the defendant perfected his appeal to this Court. Contention is made by the State that this is an effort to amend the record, and especially the motion for a new trial after the defendant's appeal had been granted and perfected.
Excepting the affidavit of the trial judge, the record fails to show that the exhibits to the motion for a new trial were all the evidence introduced on the motion for a new trial.
We think the motion to strike the affidavit of the trial judge must be sustained. It is regrettable that the technical record is not accompanied with a proper bill of exceptions. The affidavit of Juror Albert Buntley, filed as an exhibit to the defendant's motion for a new trial, the substance of which we have referred to, was extremely prejudicial. But we cannot consider it in the absence of a bill of exceptions. 'A motion for a new trial is a pleading and does not take the place of a bill of exceptions.' Koehn v. Hooper, 193 Tenn. 417, 246 S.W.2d 68. In that case certain 'special requests' by defendant's counsel were copied in the motion for a new trial, and it was contended that it was error not to consider them. In response to this insistence it was said:
'To refute this insistence, all that is necessary is to quote with approval, the last edition of Caruthers' History of a Lawsuit, which considers the Act of 1945, and states the present rule of practice to be: 'A motion for a new trial is a pleading, and is not evidence of what occurred on the trial."
While the motion for a new trial is a part of the technical record as provided by Code Section 27-112, T.C.A. (Public Acts of 1945), yet it is held in Wileman v. Mayor, etc., 29 Tenn.App. 172, at page 178, 195 S.W.2d 325, at page 327, 'To determine whether any ground of the motion (for a new trial) should have been sustained, the evidence must be preserved by a bill of exceptions.' (Certiorari denied). In Broestler v. State, ...
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Francis v. State
...included in the Bill of Exceptions and cannot be considered on appeal. Driscoll v. State,191 Tenn. 186, 232 S.W.2d 28; Baldwin v. State, 204 Tenn. 639, 325 S.W.2d 244; Chico v. State, 217 Tenn. 19, 394 S.W.2d 648. The evidence upon which the trial court based his action is presumed to have ......
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Letner v. State
...by the trial judge, in the technical record. The result is that we are precluded from considering the affidavits. Baldwin v. State, 204 Tenn. 639, 325 S.W.2d 244; Driscoll v. State, 191 Tenn. 186, 232 S.W.2d 28. A motion for a new trial does not take the place of a Bill of Exceptions. Baldw......
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State v. Hopper
...Further, an alleged error will not be considered on appeal if the record contains nothing to support it. Baldwin v. State, 204 Tenn. 639, 325 S.W.2d 244 (1959); Jackson v. State, 539 S.W.2d 337 (Tenn.Cr.App.1976). Also, in the absence of a transcript to support issues that are raised on app......
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King v. John A. Denies Sons Co.
...170 Tenn. 639, 98 S.W.2d 307 and Hamilton v. Wolf (1951), 194 Tenn. 423, 250 S.W.2d 910, 912. In the recent case of Baldwin v. State (1959), 204 Tenn. 639, 325 S.W.2d 244, in an opinion by Mr. Chief Justice Neil, the Supreme Court held that a bill of exceptions to become a part of the recor......