Battier v. State

• Decision Date: 25 April 1905
• Citation: 86 S.W. 711
• Parties: BATTIER v. STATE.
• Court: Tennessee Supreme Court

86 S.W. 711

BATTIER v. STATE.

Supreme Court of Tennessee.

April 25, 1905.

Appeal from Criminal Court, Davidson County; Wm. M. Hart, Judge.

Paul Battier appealed from a conviction. The state moves to strike portions of the transcript. Motion granted.

Harry S. Stokes, for appellant. Charles T. Cates, Jr., Atty. Gen., for the State.

SHIELDS, J.

This case is before us upon a motion of the Attorney General, predicated upon a certified copy of the bill of exceptions as it was when filed in the criminal court of Davidson county, to strike from the transcript certain portions thereof purporting to be the proceedings in that court had upon an application for a continuance of the case, the evidence introduced upon the trial, and the charge of the court, because not properly a part of the bill of exceptions tendered by the plaintiff in error, and signed by the trial judge and filed.

The bill of exceptions, called by the plaintiff in error a "skeleton bill of exceptions," when signed and filed was as follows:

"State of Tennessee vs. Paul Battier.

"Upon the case being called for trial defendant moved the court for a continuance on grounds afterwards embodied in affidavit with permission of the court. The state resisting said motion stated: (Here insert.) Thereupon counsel for defendant prepared and read said affidavit. (Here insert.) In response to said affidavit counsel for state said: (Here insert Trans. p. 91.) The court held the affidavit stating the grounds insufficient, and overruled said motion, and court said: `Well, I reckon we are about as near ready now as we ever will be.'

"Upon the trial of this case the following evidence was submitted to the jury:

"(Here insert transcript of evidence.)

"This was all the evidence. The court thereupon charged the jury as follows:

"(Here insert the charge of the court.)

"Defendant made and argued before the court a motion for a new trial (here insert), which was by the court overruled.

"To the action of the court in overruling the said motion the defendant excepts, and prays an appeal at the next term of the Supreme Court at Nashville, which is by the court granted.

"The defendant tenders this, his bill of exceptions, to the judgment of the court overruling his motion for a new trial, which is signed and sealed, and ordered to be made a part of the record.

                                    "W. M. Hart, Judge."
                

What purports to be the affidavit offered by the plaintiff in error in support of his application for a continuance, the evidence introduced upon the trial in the criminal court, and the charge of the court, appear in the transcript in the places where, in the form set out, they are directed to be inserted; and the object of the motion is to have these portions of the transcript stricken out, because they do not appear from the bill of exceptions to be in any manner identified and authenticated by the trial judge as parts of it.

This motion must be sustained. It is well settled that, in order to make extraneous matters a part of the record, they must be examined by the trial judge, and authenticated by his signature in such manner as to make their identity certain.

In the case of Wynne et al. v. Edwards, 7 Humph. 419, Judge Turley, speaking for the court, said:

"But there is an unanswerable objection to a reversal of this judgment. There is no bill of exceptions by which the bond becomes a part of the record, and we cannot, therefore, notice it. There is an order upon the minutes by which it is directed that the bond and proceedings thereon be made a part of the record; but this will not do. Before extraneous matter can become part of the record, it must be examined and...