Dyer v. State
| Decision Date | 30 September 1883 |
| Citation | 79 Tenn. 509 |
| Parties | Skeet Dyer v. The State. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM GRAINGER.
Appeal in error from the Circuit Court of Grainger County. J. G. ROSE, J.
J. K. SHIELDS for Dyer.
ATTORNEY-GENERAL LEA for the State.
At the December term, 1882, of the circuit court of Grainger county, the plaintiff in error was indicted for a misdemeanor The record of the term shows that on the day fixed by law for holding the term, the court was opened by the regular judge, the other officers being present, that a venire facias was properly issued and returned, and that from the jurors summoned, the court “proceeded to as directed by the statutes in such case made and provided to select and empanel a grand jury, when were elected the following good and lawful men,” naming them; “and the said grand jury, having been duly summoned, elected and empaneled, were sworn and charged by the court, and retired to consider if indictments,” etc. The indictment was found, and returned into court on the next day by this jury. At the next term of the court, and on April 24, 1883, the plaintiff in error filed a plea in abatement, that the grand jury who found the indictment were not legally elected, empaneled and sworn; that the regular judge of the court was absent, and no regular judge present, and no attorney at law elected to preside; but that the court was opened by the clerk, “and the said grand jury attempted to be elected, empaneled, sworn and charged by the Attorney-General for the said judicial circuit (naming him), he having no authority in law to hold the court, preside therein, or organize the said grand jury.” On the same day, the defendant was arraigned upon the indictment, and pleaded not guilty, whereupon a jury to try the issue joined was elected and sworn, and “respited from rendering their verdict” until the next day. Then follows in the transcript an entry as of the same date, that the parties appeared in open court, and the Attorney-General moved “to strike out the pleas filed by the defendant,” and the court allowed the motion, to which defendant excepted. On the next day the jury rendered a verdict “that the defendant was guilty in manner and form as charged,” and judgment was rendered accordingly. The defendant appealed in error.
The natural inference from the order of entries as they appear in the transcript would be, that the defendant first filed his plea in abatement, was then arraigned, pleaded not guilty, and went to trial on the issue joined in this plea, and that afterwards the plea in abatement was stricken out by the court upon the motion of the State.
In this view, the action of the circuit judge was correct. For all objection to the election and qualification of the grand jury is waived by a plea to the merits, and going to trial thereon, if a plea in abatement has been filed but not acted on: Epperson v. State, 5 Lea, 291; 1 Bish. Crim. Prac., sec. 886. Neither the motion nor the entry of the action of the court shows the ground on which the State moved and the court decided. If the plea in abatement was filed after the commencement of trial, it was, for the same reason, properly stricken out. And the fact that the proceedings were on the same day would make no difference. For the term is only of one day, while the order of time may always be shown by the record, or by evidence not in conflict with the record, whenever the rights of litigants require.
If the filing of the plea, and the action of the court in striking it out both preceded the plea of not guilty, then the question of the sufficiency of the plea would arise. Such pleas, as this court has always held, must possess the highest degree of certainty known to the law in every particular. They must exclude, by proper allegations, every legal intendment or conclusion that might otherwise have been made against them: State v. Wills, 11 Hum., 222;State v. Bryant, 10 Yer., 527;State v. Deason, 6 Baxt., 511. The plea does aver broadly that the grand jurors were not legally elected, empaneled and sworn, which is only the averment of a conclusion, not of facts from which the court may draw its own conclusion: Daniel v. State, 3 Heis., 257; State v. Jackson, 3 Leg. Rep., 301. But the draftsman undertakes to state the facts on which he intends that his general averment shall be considered as resting. These facts are that the regular judge was absent at the...
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State v. March
...trial. See Mullen v. State, 51 S.W.2d 497, 498, 164 Tenn. 523, 528 (1932) ("[C]ourts speak only through their minutes ..."); Dyer v. State, 79 Tenn. 509, 514 (1883) (stating that court minutes "import absolute verity"); see also T.C.A. § 16-1-106(a) (1994) (providing for "minutes of the cou......
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State v. Allen
... ... done in the court, and, so far as they are records of ... judicial proceedings, import absolute verity, and are ... conclusive unless attacked for fraud." Id. at ... 225-26 (quoting Mullen v. State , 51 S.W.2d 497, 498 ... (Tenn. 1932); Dyer v. State , 79 Tenn. 509, 514 ... (Tenn. 1883)). Our supreme further recognized the ... significance of minutes, stating that "[t]he rule in ... this State for generations has been, and is, that ... 'minutes' are indigenous to [c]ourts of record; and ... when they are ... ...
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State ex rel. Lawrence v. Henderson
...an objection thereafter is too late. State v. Cole, 28 Tenn. 626; McTigue v. State, 63 Tenn. 313; Epperson v. State, 73 Tenn. 291; Dyer v. State, 79 Tenn. 509; Turner v. State, 89 Tenn. 547, 15 S.W. 838; Ellis v. State, 92 Tenn. 85, 20 S.W. 500; Chairs v. State, 124 Tenn. 630, 139 S.W. Wher......
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Holiday v. State
...an objection thereafter is too late. State v. Cole, 28 Tenn. 626; McTigue v. State, 63 Tenn. 313; Epperson v. State, 73 Tenn. 291; Dyer v. State, 79 Tenn. 509; Turner v. State, 89 Tenn. 547, 15 S.W. 838; Ellis v. State, 92 Tenn. 85, 20 S.W. 500; Chairs v. State, 124 Tenn. 630, 139 S.W. 711.......