Humphreys v. State

• Decision Date: 18 November 1933
• Citation: Humphreys v. State, 64 S.W.2d 5, 166 Tenn. 523 (Tenn. 1933)
• Parties: HUMPHREYS v. STATE.
• Court: Tennessee Supreme Court

64 S.W.2d 5

166 Tenn. 523

HUMPHREYS v. STATE.

Supreme Court of Tennessee.

November 18, 1933

Appeal from Criminal Court, Hamilton County; L. D. Miller, Judge.

Minnie Humphreys was convicted of murder in the second degree, and she brings error.

Reversed and remanded for new trial.

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

MCKINNEY Justice.

Minnie Humphreys, plaintiff in error, was convicted of murder in the second degree; her maximum punishment being fixed at twenty years in the penitentiary.

Plaintiff in error admits that on January 4, 1933, she shot H. N Helton with a pistol, but claims that she did so in defense of her life.

The state for a conviction relied to a considerable extent upon the dying declarations of Helton.

According to the record, as certified to this court, the trial court failed to instruct the jury as to the weight to be given the dying declarations of deceased.This is an error, for which the case must be reversed and remanded for a new trial.Pearson v. State,143 Tenn. 385, 226 S.W. 538;Crittendon v. State,157 Tenn. 403, 8 S.W.2d 371.

The state has suggested a diminution of the record, supported by the affidavit of the trial court, in which it was stated that the jury were instructed as to this matter, and a copy of that portion of the charge is made an exhibit.

This controversy grows out of the failure of the trial court to submit his entire charge in writing.This omission by the judges of the criminal courts of Hamilton county has on previous occasions been a source of controversy and embarrassment, and is a practice that we cannot approve.While a written charge was waived, as an evidence of the disfavor with which such practice is held by the bar, we quote from the brief of counsel as follows:

"When this case was tried in the trial court and argument of counsel was concluded the trial judge thereupon, in the presence of the jury, inquired of counsel as to whether a written charge would be waived.The case having consumed two days and one night, and it then being around 4:30 on Friday afternoon, counsel knew full well that should a written charge not be waived that the trial judge would turn to the jury and tell them that it was the legal right of the defendant to a written charge and that he would have to adjourn court until Saturday morning in order that he might prepare his charge.Therefore, counsel feeling that the jury might resent being tied up another night, and that it would be charged (probably unconsciously) to the defendant, felt there was nothing to do but waive a written charge, and did so with the understanding that the charge be taken by the stenographer, Mr. M. O. Cate, one of the most reputable court reporters it has ever been counsel's privilege to come in contact with, counsel having been engaged in court reporting himself for twenty years.Mr. Cate's affidavit as to how the charge was taken, obtained from the trial court, and transcribed and placed into the bill of exceptions, will be found filed as an exhibit to the motion for a new trial, and made a part thereof."

We quote the following from the affidavit of Mr. Cate:

"At the conclusion of the argument, Mr. Norvell, of counsel for the defendant, upon inquiry from the Court, waived a written charge with the understanding that I report the Charge of the Court.

Thereupon I was informed by the Court that he would indicate to me when he was not reading from his manuscript and each time I was notified by the Court that he was not reading I made shorthand notes of his charge and later transcribed them as a part of the charge.The Jury retired to the Jury room to deliberate without a written charge, as same had been waived by counsel for the defendant.

After the Jury reported their findings and the record was ordered by the defendantthe Court turned over to me that which he had charged the Jury from his manuscript, which I placed in the record, along with the portions of the charge which the Court indicated to me that I should take in shorthand.

The Court did not indicate to me, as shown by my notes and by the charge which I have written up and which appears in the record, that I should take anything on dying declarations and nothing was included in the manuscript which was handed to me by the Judge on that.

I do not know whether the Court charged the Jury on dying declarations or not, as I have no independent recollection about the matter one way or the other; but have just stated in this affidavit the facts as they occurred."

The deputy clerk of the criminal court, in her affidavit, states that she copied everything into the record that was called for in the bill of exceptions.

The trial court, in his affidavit, states that, when the original bill of exceptions was handed to him, he wrote therein that the clerk would copy instructions as to dying declarations, attached such instructions thereto, but that they became lost, were not copied into the transcript, and he files a copy thereof with his affidavit.

When this case was argued some weeks ago, this court had its clerk to write the clerk of the criminal court to send up the original bill of exceptions, but same has never been received.It will thus be seen that the matter is in hopeless confusion, and this court must dispose of the matter upon the record before it.The clerk certifies that nothing was omitted.

After a bill of exceptions has been signed and the court has adjourned, nothing can be added to or taken from it.Steele v. Davis,52 Tenn. (5 Heisk.) 75;Shelby County...