Low v. State
| Decision Date | 17 October 1903 |
| Citation | 78 S.W. 110,111 Tenn. 81 |
| Parties | LOW v. STATE. |
| Court | Tennessee Supreme Court |
Appeal from Circuit Court, Anderson County; W. R. Hicks, Judge.
Finly Low was convicted of manslaughter, and appeals. Reversed.
C. J Sawyers, Xen Z. Hicks, and Young & Young, for appellant.
The Attorney General, for the State.
Finly Low, the plaintiff in error, was indicted in the circuit court of Anderson county for the homicide of Miller McGee and was there tried and found guilty of voluntary manslaughter, and his punishment fixed at five years' confinement in the penitentiary of the state. A new trial was refused, and from the judgment upon the verdict of the jury he has prosecuted an appeal in the nature of a writ of error to this court and assigns error.
Hon. G McHenderson, judge of the Second Judicial Circuit, of which Anderson county is a part, was district attorney for that circuit when the indictment was preferred, and disqualified from presiding upon the trial of the case, necessitating the election of a special judge for that purpose. It is claimed for the state that John P. Rogers, Esq., one of the attorneys of that court, was elected at the March term, 1903, of the court, by the other attorneys then present, at an election held by the clerk under the authority vested in him by chapter 78, p. 125, of the Acts of 1870, to try the case; but no record was then made of such election upon the minutes of the court or elsewhere, other than a recital in an entry made March 19, 1903, continuing the case, to the effect that John P. Rogers, special judge, presided, which entry was signed by him as special judge.
The case was tried at the next regular term of the court, when the conviction was had of which the plaintiff in error now complains.
The general caption of that term shows that Judge Henderson was present and presiding, but all the entries made in this case recite that John P. Rogers, special judge, presided.
After this case was disposed of, Judge Henderson being necessarily absent, X. Z. Hicks, Esq., one of the attorneys of the court, was elected to preside upon the trial of the case of the State against Will Smith, and upon the minutes of the court made while he was presiding there appears an entry under the style of this case purporting to be a nunc pro tunc record of the election of John P. Rogers, Esq., special judge at the previous March term.
The record also discloses that at a subsequent day Judge Henderson appeared, took charge of, and concluded the business for that term.
The contention of plaintiff in error is that the authority and jurisdiction of John P. Rogers, Esq., as special judge to try his case under the election held by the clerk at the March term, 1903, of the court, expired with the adjournment of that term; that he had no power or authority at a subsequent term to preside as judge, and that all proceedings had and the judgment entered while he was then presiding are null and void; and, further, if mistaken in this, there is no competent or sufficient evidence that he was at any time elected special judge to try the case.
The statute under which it is claimed Special Judge Rogers was elected, as carried into Shannon's Edition of the Code (sections 5730-5732, inclusive), is as follows:
This statute is authorized by section 11, art. 6, of the Constitution, and a judge elected thereunder has all the powers of a regular judge during the time for which he is elected. Ligan v. State, 3 Heisk. 159; Halliburton v. Brooks, 7 Baxt. 319; Hundhausen v. Insurance Co., 5 Heisk. 703; Brewer v. State, 6 Lea, 199.
There is no express provision in this statute providing when the authority of the special judge elected thereunder shall expire, but the election by the terms of section 5730 is for "the occasion," which clearly means for the term of court at which the election is held; and consequently the authority and jurisdiction of a special judge so elected expires with...
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State v. Stewart
...that he was counsel in the case when the election was held, which is necessary to a disqualification under the statute." In Low v. State, 111 Tenn. 81, 78 S.W. 110, it is that, where the election of a special judge is to try a certain case or cases, the entry should show that the attorneys ......
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Ridout v. State
...selected, and (3) that a grand jury organized by a court without authority of law is not legally empowered to act, the holding in Low v. State, supra, that the conferred by election of a special judge expires with the term at which he is chosen, was given application. A petition to rehear w......
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Page v. Turcott
...be bound well enough to last a hundred years." Counsel for appellants press strongly upon us quotations from the opinion in Low v. State, 111 Tenn. 81, 78 S.W. 110, wherein the importance of observance of the requirements governing the election of special judges is stressed, and directory s......
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Apple v. Ellis
...attorney other than a regular judge signs a bill of exceptions, the record should show his appointment as special judge. In Low v. State, 111 Tenn. 81, 78 S.W. 110, it is held that record of the action and qualification of special judge should be verified by the official signature of the cl......