Green v. State

• Decision Date: 11 December 1948
• Citation: 216 S.W.2d 305,187 Tenn. 545
• Parties: GREEN v. STATE.
• Court: Tennessee Supreme Court

216 S.W.2d 305

187 Tenn. 545

GREEN v. STATE.

Supreme Court of Tennessee.

December 11, 1948

Error to Criminal Court, Knox County; J. Fred Bibb, Judge.

Owen Green was convicted of voluntary manslaughter, and he brings error.

Judgment affirmed.

Dexter A. Christenberry, of Knoxville, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

BURNETT Justice.

Green was indicted, tried and convicted for homicide, the conviction being for voluntary manslaughter with his punishment fixed at not more than seven years confinement in the State penitentiary.

There is no bill of exceptions. In the brief on behalf of the plaintiff in error there is what purports to be a bill of exceptions agreed upon by counsel for the plaintiff in error and the Assistant District Attorney General which does not contain the signature of the Trial Judge.

The situation here is well illustrated by a quotation from the plaintiff in error's brief as follows:

'* * * the Judge, on motion for a new trial, granted thirty days for a continuance with the stipulation that time would be allowed in order that the Attorney General and the defense attorneys could decide on a statement of facts. Statement of facts was drawn up within one week by the defense attorneys and presented to the Attorney General. Considerable time elapsed in the agreeing on this statement of facts and the defense attorney, seeing that he would need additional time, brought this matter up with the Trial Judge in open court, at which time the Trial Judge advised that, when the Attorney General and the defendant's attorney agreed upon a statement of facts he would sign it, indicating that the time element made no difference. When the Attorney General and the defense attorney agreed upon a statement of facts, as herein submitted, and filed same, the Trial Judge refused to affix his signature thereto, saying that Assignment of Error had not been filed within due time and that he had not intended granting additional time at the time the request was made. The Trial Judge agreed that the case could be taken up upon the technical record, but the technical record is skimpy and has only an affidavit of one of the absent witnesses while, in fact, this witness appeared before the Court on motion for a new trial and testified more fully than is shown in the affidavit, which testimony clearly substantiated the defendant's claim of self-defense.

'The defendant contends that the Trial Court should have entered a Nunc Tunc Order when the Statement of Facts was presented to him, inasmuch as the defendant's attorney and the Attorney General were present in Court and the Judge's ruling was constructed as granting the time necessary for agreement on a Statement of Facts, which has been duly filed by both the Assistant District Attorney trying this cause and the defendant's attorney.

'The Statement of Facts, Assignment of Errors, and Brief are herewith filed and the petitioner prays that this Honorable Court direct the Criminal Court Judge or Clerk to certify to this court the technical record of this proceeding and that it be considered with the attached Statement of Facts, as filed by the Assistant District Attorney and defense's attorney and that the entire proceedings be reviewed and examined touching all of the errors committed therein; and upon a hearing, your Honor review the entire cause and do petitioner justice and grant him general relief.'

We cannot consider the evidence in the case in the absence of a bill of exceptions duly authenticated by the Trial Judge. Jackson v. Bell, 143 Tenn. 452, 226 S.W. 207; State v. Hawkins, 91 Tenn. 140, 146, 18 S.W. 114.

When a Trial Judge refuses to sign a bill of exceptions the exclusive remedy therefor, when the refusal to so sign is at a time within which the bill of exceptions may be filed, is to apply to this Court for the issuance of a writ of mandamus to compel his signature. Miller v. Koger, 28 Tenn. 231, 236; State ex rel. v. Hall, 43 Tenn. 255; Caruthers History of a Lawsuit, 3rd Edition, section 285.

When the plaintiff in error has been deprived of the right to an appeal without fault upon his part, the remedy is to file a bill in the Chancery Court asking that a new trial be awarded. State ex rel. v. Yarnell, 156 Tenn. 327, 329, 5 S.W.2d 471.

If we treat the application herein as a writ of error coram nobis it cannot be so considered by us in this a criminal case. The reasons and authority for this statement are very clearly pointed out in the brief of the State in the following language:

'The State likewise insists that the writ of error coram nobis does not lie in criminal cases for the following reasons:

'(a) The petition for the writ of error coram nobis is provided for by Sections 8971 through 8979 of the Code of Tennessee. It plainly appears from the subject matter of these Code sections that only civil litigation is contemplated thereby.

'(1) Section 8971 makes the writ available to any person aggrieved by the judgment of the court. If this writ is available to a defendant, under this Code section, it should likewise be available to the District Attorney General. This would be in violation of Article 1,...