Hobbs v. State

• Decision Date: 05 November 1908
• Citation: 118 S.W. 262,121 Tenn. 413
• Parties: HOBBS v. STATE.
• Court: Tennessee Supreme Court

118 S.W. 262

121 Tenn. 413

HOBBS v. STATE.

Supreme Court of Tennessee.

November 5, 1908

Appeal from Circuit Court, Sequatchie County; Byron Pope, Special Judge.

William Hobbs was convicted of violating the liquor law, and he appeals. Affirmed.

Stewart & Stewart, for appellant.

The Attorney General, for the State.

BEARD C.J.

This is an appeal from a judgment pronounced on the verdict of the jury, finding plaintiff in error guilty of selling intoxicating liquor without license. It is unnecessary to set out the evidence upon which the conviction rests. It is sufficient to say we are satisfied that the jury were warranted by the evidence in finding the plaintiff in error guilty of the offense charged within 12 months prior to the presentment in the case.

The ground, however, on which it is earnestly insisted a reversal should be had, is that the minute entry showing the arraignment, trial, and verdict failed to recite that the jury were sworn.

This objection is made for the first time in this court. If the fact was that the jury were not sworn, and this had been called to the attention of the court below, there is no doubt a new trial would have been promptly granted. That this was not done raises at least a presumption that they were sworn but by a clerical omission the fact was not made a part of the minute entry. In addition, the failure to swear the jury would have been so great a departure from orderly procedure that it is hardly possible for this at the time to have escaped the attention of the court and of counsel. This being so, with the presumption, which exists in this court, of the regularity of judicial proceedings of trial courts, nothing appearing in the record of an affirmative character to the contrary, we are satisfied that the omission pointed out does not authorize a reversal of this case.

The principle controlling in this case will be found illustrated in Clark v. State, 8 Baxt. 591, and Robertson v State, 4 Lea, 425. In the first of these cases the prisoner had appealed from a death sentence upon a conviction for murder, and it was earnestly pressed upon the court as reversible error that the record failed to show that the officer in charge of the jury was duly sworn. Notwithstanding the established rule that the jury in a felony case, on retiring, must be in charge of a sworn officer, and if the record attempts to set out the form of the oath it must be stated correctly, yet it was held in that case, in the absence of a recital in the record, it would be presumed that the officer was sworn and that the proper oath was administered to him. In the course of the opinion it was said: "We have no evidence in this case that the officer was not sworn, and we may safely rest the case upon the legal presumption in favor of the regularity of judicial proceeding." In the latter of these cases there was a conviction for voluntary manslaughter, and it was insisted on appeal that the case should be reversed, because, while the record showed that the jury upon their retirement was placed in charge of an officer properly sworn, yet it failed to state that upon the next day they returned into court in charge of that officer. To this insistence, however, the court replied: "There is no error in this. It is not necessary that the record should affirmatively show that the officer did his duty. In the absence of anything to the contrary, this will be presumed."

But it is not necessary to rest our conclusion in this case upon a mere presumption. We place it upon the stronger ground that the objection now urged was not made in the court below, and it comes, therefore, too late. Failing to present it at the proper time, we think, both on reason and authority, that it was waived. In the Encyclopedia of Pleading and Practice,...