Mabry v. State
| Decision Date | 31 March 1836 |
| Parties | MABRY v. THE STATE. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
At the November term, 1834, of the Davidson circuit court, Joseph A. Mabry, the plaintiff in error, was arraigned and tried on a bill of indictment, charging him, under our penal code, with having unlawfully, feloniously, wilfully, and maliciously shot one John R. Nelson. The jury returned as their verdict that he was not guilty of felony, as charged, but that he was guilty of an assault and battery upon the body of the said John R. Nelson. Upon this verdict the judgment of the court was that he be fined fifty dollars, and pay the cost of the prosecution. An execution was issued against the said Joseph A. Mabry for the amount of this fine and cost, returnable to the May term, 1835, of said circuit court, which was, by order of the judge, superseded; and thereupon a motion was made to vacate and set aside the judgment upon which it had been issued, which was refused by the court, and the supersedeas discharged; from which judgment of the court this writ of error is prosecuted, and it is now contended that the judgment is void, and that the court erred in refusing to vacate and set it aside.
T. H. Fletcher and Wm. E. Anderson, for plaintiff in error.
J. Trimble, Solicitor, etc., for the State.
We are of opinion that the judgment is void. At the time of trial the jurisdiction of the offence of assault and battery was by statute given exclusively to the county court, unless it were perpetrated with some felonious intent. The act of 1832, ch. 2, which provides “that when a person shall be indicted for an assault with intent to kill, or commit other felony, it shall be lawful, in case the jury cannot find such person guilty of such felony, to find him guilty of an assault, or an assault and battery, upon which judgment may be pronounced,” does not apply to this case. This bill of indictment is not for an assault with intent to kill, or commit other felony, but for maliciously shooting. The case of The State v. Valentine, 6 Yerg. 533, is directly in point. We do not consider it necessary to determine whether the court below had the power to vacate and set aside the judgment. It did not do so. And we incline to think that, if the power exists, a refusal to exercise it would not be error upon which this court could act; but we are of opinion that, inasmuch as the judgment is void, no execution could be legally issued...
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Hargraves v. Hamilton Nat. Bank
...voidable and not void and it is only where the judgment upon which the execution issued was void that motion to quash will lie. Mabry v. State, 17 Tenn. 207; Roche Washington, 26 Tenn. 142. We think the same may be said of the failure of the issuing authority to give the date of issuance. T......
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Hargraves v. Hamilton Nat. Bank, 6.
...voidable and not void and it is only where the judgment upon which the execution issued was void that motion to quash will lie. Mabry v. State, 17 Tenn. 207; Roche v. Washington, 26 Tenn. We think the same may be said of the failure of the issuing authority to give the date of issuance. The......
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