Bundren v. State

• Decision Date: 15 November 1902
• Parties: BUNDREN v. STATE.
• Court: Tennessee Supreme Court

70 S.W. 368

109 Tenn. 225

BUNDREN v. STATE.

Supreme Court of Tennessee.

November 15, 1902

Appeal from criminal court, Grainger county; W. R. Hicks, Judge.

R. B Bundren was convicted of murder, and appeals. Affirmed.

W. A Owens and H. Y. Hughes, for appellant.

Charles I. Cates, Atty. Gen., and D. D. Anderson, for the State.

WILKES J.

Defendant Bundren, is convicted of the murder of Jno. H. Crozier, Jr. and sentenced for life, and has appealed.

The first question presented to the court is whether there is in the record any bill of exceptions such as the court can consider. On the 7th of December, 1901, the judgment of the court below in the cause was pronounced, and the defendant prayed an appeal, which was granted, and on motion of his attorney he was allowed 30 days in which to prepare and file his bill of exceptions. It did not appear from the original transcript that the bill of exceptions was ever filed in the case, though what purports to be a bill of exceptions appears in the record without any indorsement showing that it was ever filed, so as to become part of the record. This fact having been called to the attention of the court during the argument of the case, on motion of the defendant's attorney a suggestion of diminution was allowed to be and was made, and the clerk was ordered to send up a perfect bill of exceptions, showing whether the same was filed, when filed, and the date of filing by him. In response to the writ suggesting the diminution, a paper was filed in this court purporting to be signed R. B. Harrison, by H. G. Farmer, deputy, certifying that the bill of exceptions was signed by the trial judge December 19, 1901, and that it was received and filed by his predecessor in office C. B. Brewer, on the 23d day of December, 1901, as the same appears of record in his office. This certificate bears date of November 7, 1902. Accompanying this certificate are two affidavits,--one by C. B. Brewer, former clerk, and predecessor of R. B. Harrison, the present clerk; and one by H. G. Farmer, the deputy of the present clerk. The former states that he was clerk when the case was tried in the court below and prepared the transcript of Bundren against State for the supreme court; that the bill of exceptions was filed with him on Sunday, December 22, 1901, and that it was marked filed December 23, 1901, the indorsement of filing being in pencil; and that by continued use and handling of the bill of exceptions, or by some other means, unknown to affiant, the filing has become obliterated or erased; that by instructions from the present deputy clerk on November 7, 1902, he made certificate to the date on which said bill of exceptions was filed. The date of filing being erased, he marked it as filed on December 23, 1901. This affidavit is made on November 8, 1902. The other affidavit, by H. G. Farmer, the deputy of the present clerk, was made the same day, and states, in substance: That he had control of the office since October 9, 1902; that he was absent from the office on November 7, 1902; that Jas. H. Bundren called him by phone from Rutledge at Joppa, in Grainger county, and requested him to authorize C. B. Brewer, ex circuit court clerk, to certify to a certain date in the bill of exceptions in the case of the state against R. B. Bundren, and that he authorized said Brewer to certify to anything that was legal in his name; that he was not informed as to what date, or what it was they desired certified, but that he has since been informed by the attorney general for the state that a certificate had been made to the effect that the bill of exceptions was indorsed, "Filed Dec. 23, 1901," which he (Farmer) did not make, but it was made by said C. B. Brewer. He further swears that the bill of exceptions was not marked "Filed Dec. 23, 1901," previous to November 7, 1902, or marked filed on any date to his knowledge. He further swears that C. B. Brewer had said to him on that day, November 7, 1902, that he indorsed on said bill of exceptions "Filed Dec. 23, 1901," on November 7, 1902, because he had on December 23, 1901, marked said bill of exceptions filed with a lead pencil, and that his indorsement of filing had in some way been erased. He further swears that said bill of exceptions is not marked filed on the state rule docket in his office, and that his affidavit is made at the request of the attorney general of the state.

It is only necessary to say that it fully appears from these certificates and affidavits that, after the suggestion of diminution in this court, C. B. Brewer, the former clerk of the court when the Bundren case was tried and the record made up, but who has since retired from office, on November 7, 1902, made an indorsement upon the original bill of exceptions in the court below in the following words, "Filed Dec. 23, 1901," and that this indorsement was not upon the original bill of exceptions at that time. This indorsement he made on the ground that he had previously, and on December 23, 1901, made it, and it had by some means been erased. This act of said Brewer was wholly unauthorized, and illegal and unwarranted. And the indorsement goes for naught, and as if it had never been made; so that the legitimate record as it comes to this court does not show that what purports to be the bill of exceptions was ever filed in the court below in the cause, or that it was made a part of the record. It is, therefore, a nullity, and no errors can be based upon it. Bettis v. State, 103 Tenn. 339, 52 S.W. 1071; Muse v. State, 106 Tenn. 183, 61 S.W. 80; Jones v. Moore, 106 Tenn. 188, 61 S.W. 81; Wright v. Redd Bros., 106 Tenn. 719, 63 S.W. 1120.

In the absence of a bill of exceptions, the presumption is indisputable that the conclusion reached by the jury is that which the evidence justified and required. Scruggs v Heiskell, 95 Tenn. 455, 32 S.W. 386; Pratt v. Gillespie, 97 Tenn. 217, 36 S.W. 1097; Daniel v. Coal Co., 105 Tenn. 471, 58 S.W. 859. But, inasmuch as the liberty of the defendant for life is involved we have gone carefully through the record to ascertain whether the merits of the case have been reached, and whether the defendant is guilty of the crime of which he has been convicted, in order that in a matter so serious he may not be precluded by the misprision of the clerk in failing to file the bill of exceptions as he should. It appears from the record that Crozier was an attorney, and had in his hands for collection from the defendant a judgment, upon which he had caused execution to issue and to be levied upon some saw logs belonging to the wife of defendant. She replevined these logs, and there was a counter replevin; the logs all the while being at Long's Mill. On July 2, 1900, Crozier, Long, and Holland were engaged in dividing these logs, when Bundren appeared, and warned them to desist. Holland, during the progress of the litigation between the parties, had bought an interest in the logs. Defendant, when he came upon the scene, cursed Holland, and immediately thereafter pulled his pistol, and fired three shots at Crozier, who was sitting, unarmed, upon a log. Crozier...