Dunn v. State

• Decision Date: 22 March 1913
• Citation: 154 S.W. 969
• Parties: DUNN v. STATE.
• Court: Tennessee Supreme Court

154 S.W. 969

DUNN v. STATE.

Supreme Court of Tennessee.

March 22, 1913.

Error to Criminal Court, Davidson County; A. B. Neil, Judge.

J. M. Dunn was convicted of violating the age of consent law, and he brings error. Reversed.

William A. Guild, of Nashville, for plaintiff in error. Walter W. Faw, Asst. Atty. Gen., for the State.

NEIL, C. J.

The plaintiff in error was indicted in the criminal court of Davidson county for the violation of the age of consent law, and sentenced to five years' confinement in the state penitentiary. He appealed to this court, and has here assigned errors. All of the errors assigned are based upon a writing attached to the record, relied upon by plaintiff in error and his counsel as a bill of exceptions.

The paper referred to, however, cannot be treated as a bill of exceptions, because it was not filed until after the adjournment of the term of the court at which he was tried and convicted; no time having been granted by the trial judge under the statute for so filing. He was tried at the December term, 1911, on the 12th day of the month. On that day he entered a motion for a new trial, which was continued over by the court until the next, or January, term. During that term, on the 20th day of January, the motion for new trial was overruled, and judgment was entered against the prisoner, and thereupon he appealed to this court, and was allowed by the trial judge 20 days from January 20th to file his bill of exceptions. The paper relied upon for a bill of exceptions was filed February 3, 1912; that is to say, the bill of exceptions was made and filed after the adjournment of the trial term, and without any order granted during that term allowing time to make and file the bill. Such a bill of exceptions comes too late.

The law is:

The bill of exceptions must be made up and signed at the trial term (McGavock v. Puryear, 6 Cold. 34, and cases cited; Sims v. State, 4 Lea, 357, 359; State v. Brockwell, 16 Lea, 683, 685; and see cases cited in note 14 to Shan. Code, § 4693), or within such time during the term as may be prescribed by the court by special order in the particular case, or by general order regulating the subject (Hinton v. Insurance Co., 110 Tenn. 113, 72 S. W. 118; Patterson v. Patterson, 89 Tenn. 151, 154, 14 S. W. 485), or within such time after the adjournment of the term, not exceeding 30 days, as the judge may grant under authority of the statute on that subject (Bettis v. State, 103 Tenn. 339, 52 S. W. 1071; Rhinehart v. State, 122 Tenn. 698, 127 S. W. 445). Likewise the judge, by adjourning from day to day as usual, or to a day certain before final adjournment, may extend the term, when a case is on trial and uncompleted when the regular time for adjournment of the court by law arrives, and in such a case may, as incident thereto, act on a motion for new trial, and sign a bill of exceptions before he closes the term (Street Railroad & Telegraph Companies v. Simmons, 107 Tenn. 392, 64 S. W. 705; Ray v. State, 108 Tenn. 283, 67 S. W. 553; Acts of 1899, ch. 40; Shan. Code, §§ 6056, 6057; Acts of 1835-36, c. 5, § 4); but he cannot sign such bill of exceptions after he has formally adjourned the term of the court (Rhinehart v. State, 122 Tenn. 698, 127 S. W. 445), unless within the term, by order on the minutes, time be granted, not exceeding 30 days from the date of adjournment, for the making and filing of a bill of exceptions. The reason why the bill of exceptions must be made up and signed within the term, or within 30 days thereafter, is that with the lapse of time the impression made on the memory of the judge becomes more faint, and his recollection less reliable as to the evidence deposed to and the incidents of the trial, and it is the dictate of prudence as well as the policy of the law that these matters shall be written down and submitted to him while they are still safely within his grasp. Clark v. Lary, 3 Sneed, 79, 80.

The motion for new trial must be made at the trial term, but need not be then disposed of; it may be continued to the next term and then disposed of. McGavock v. Puryear, supra, 6 Cold. 39; Williamson v. Anthony, 4 Heisk. 78; 29 Cyc. p. 1003, note 13, and other authorities. There is no necessity for waiting until the motion for new trial is acted on to make up the bill of exceptions. If not made up pursuant to the rules already stated, the right to it is lost. If made up pursuant to these rules, and filed, it becomes a part of the record (Shan. Code, § 4693; Muse v. State, 106 Tenn. 181, 183, 61 S. W. 80; Railway & Light Co. v. Trawick, 118 Tenn. 273, 275, 99 N. W. 695, 10 L. R. A. [N. S.] 191, 121 Am. St. Rep. 996, 12 Ann. Cas. 532), and may be used in support of the motion for new trial, whether that be disposed of at the trial term or at a term subsequent. It may be deemed, and no doubt is generally deemed, useless labor on the part of counsel to prepare a bill of exceptions before it is known whether the trial judge will sustain the motion for new trial; but this cannot, of course, change the rule of law based on the controlling reason above set forth. If the motion for a new trial be left undisposed of at the close of the trial term, it is continued by operation of law, as part of the undisposed of business of the term, appearing on the records of the court. But this is not true of the making and filing of a bill of exceptions. This is a matter wholly outside of the record, resting still in the memory of witnesses. The bill does not become a part of the record until it is written, signed, and filed; and when this is done, it is complete. In its very nature it is a creature and incident of the trial term.

The judgment, in this state, is usually entered on the verdict when the latter is recorded on the minutes, unless a motion for new trial be made before that occurs. Greenfield v. State, 7 Baxt. 18, 19; Railroad v. Ray, 124 Tenn. 16, 134 S. W. 858, Ann. Cas. 1912D, 910. If a motion for new trial be made before judgment, the latter remains unentered until that motion is finally disposed of, even if that be at the succeeding or any subsequent term. The judgment on the verdict may be lawfully entered at a subsequent term, whether the failure to enter it at the trial term be the result of mere inadvertence on the part of the court, or misprision of the clerk, or because the motion for new trial remains undisposed of. Greenfield v. State, supra. If the judgment be entered at the trial term, before the entry of a motion for a new trial, the latter, when made and entered, if this be done within 30 days after such entry of judgment, suspends the judgment until the motion is finally disposed of; and, if it be overruled, the judgment stands as of the date of the overruling of such motion, or of its disposition whether overruled or sustained. The continuance of the motion for new trial into the next term, and the adjournment to the next term, carries with it, as unfinished business of the court, the suspended judgment. Railroad v. Ray, supra. But the better practice is to formally set aside the judgment upon entry of the motion for new trial.

To recapitulate: The making and filing of a bill of exceptions does not depend upon the disposition of the motion for a new trial; on the contrary, the latter depends on the former. That is to say, the matters which go to make up the bill of exceptions must be recalled to the attention of the trial judge, along with any new evidence which may be submitted in support of the motion, as a means of convincing him that he has committed error for which a new trial should be granted. When the motion is acted on by him during the trial term, this use of materials still remaining unwritten is made available by an appeal to the memory of the judge, who is supposed to retain these matters during the term. But when the motion...