Lynch v. State

• Decision Date: 26 May 1897
• Citation: 41 S.W. 348
• Parties: LYNCH v. STATE.
• Court: Tennessee Supreme Court

41 S.W. 348

LYNCH v. STATE.

Supreme Court of Tennessee.

May 26, 1897.

Appeal from criminal court, Shelby county; Cooper, Judge.

Ed. Lynch appeals from a conviction. Reversed.

J. J. Du Bose, for appellant. Atty. Gen. Pickle, for the State.

CALDWELL, J.

Ed. Lynch was indicted and convicted for keeping a saloon open on Sunday. He appealed in error. The whole of the record, after the indictment, is an entry upon the minutes of the criminal court in these words: "State of Tennessee vs. Ed. Lynch. Came the attorney general on behalf of the state, and the defendant in his own proper person and by counsel of record. Whereupon, by consent, the court proceeds to try said cause, and, being fully advised in the premises, adjudges the defendant guilty as charged in the indictment, and fines him the sum of $50, and orders that he be confined in the county workhouse for the period of sixty (60) days, and until he shall have paid, worked out, or secured, according to law, the fine herein, together with all costs, and that execution and mittimus issue. Whereupon the defendant moves the court for a new trial and in arrest of judgment, which motions, being heard and argued by counsel and fully understood by the court, are severally overruled. Whereupon the defendant prays an appeal in the nature of a writ of error, * * * which is granted." No arraignment or plea appears to have been made. In the absence of the latter, there could have been no valid trial and conviction. There should have been a plea, either of guilty or not guilty, before the defendant was tried, and without one or the other the trial was invalid. Without a plea there was no issue to try, and without an issue there was nothing to decide and adjudge, — nothing for the judgment to stand upon. "If the defendant refuse or neglects to plead, or stands mute, the court shall cause the plea of not guilty to be entered, and proceed with the trial as if the defendant had put in the plea." Meigs & C. Code, § 5209; Mill. & V. Code, § 6039; Shannon's Code, § 7173. In the case of Link v. State, 3 Heisk. 254, the court, referring to a trial without a plea, said, "The verdict of the jury, not being responsive to any issue, was a nullity. * * *" It is not absolutely essential that the plea itself should appear in the transcript of the record sent to this court, but the fact that the defendant was tried upon a plea must be shown in such transcript in every instance. "When a person indicted or presented for a...