Moore v. State

• Decision Date: 31 December 1871
• Citation: 50 Tenn. 493
• Parties: Patrick Moore v. The State.
• Court: Tennessee Supreme Court

50 Tenn. 493

Patrick Moore

v.The State.

Supreme Court of Tennessee.

December Term, 1871.

FROM DAVIDSON.

Criminal Court, September Term, 1871. THOS. N. FRAZIER, J.

Bate & Williams, for the prisoner, cited the authorities generally, on jeopardy. As to the unsigned minutes, they cited the Code, 4040, 4101; Hite v. State, 9 Yer., 380; Ch. Cr. L., 459. On the clerk's power as to records: McConnell v. Read, M. & Y., 224; Hunt v. Lyle, 6 Yer., 417; Miller v. Holt, 1 Tenn., 87; Craig v. Vance, Ib., 141; Burton v. Pettibone, 4 Yer., 443; Bass et als. v. State, MS., Nashv., Dec. Term, 1870; Allen v. State, M. & Y., 606. Verity of record, Carrick v. Armstrong, 2 Cold., 266. Correction of judgments, Farris v. Kilpatrick, 1 Hum., 379;Crutchfield v. Stewart, 1 Hum., 381;Williams v. Tenpenny, 11 Hum., 176;State v. Disney, 5 Sneed, 598. Suggested that it was the duty of the successor of Judge Smith to sign the minutes. On correction of errors in records, cited: Act of 1856, c. 70, s. 1; Code, 2877, 2878; Elliot v. Cochran, 1 Cold., 389;Ocoee Bank v. Hughes, 2 Cold., 52. Parol evidence inadmissible to change a record: Woodyard's heirs v. Threlkell, 1 Marsh., 10; Cole v. Hank, 3 Monroe, 209;3 Dev., 423;4 Wend., 534; Hickman v. McCurdy, J. J. Marshall, 555; Harrison v. State, 10 Yer., 542;Johnson v. Johnson, 2 Heis., 521. They quoted from Bass v. State, opinion by Judge Nelson, where, after quoting the section of the Code to the effect that the minutes of the court shall be read each morning in open court, and signed by the judge, Judge Nelson says, “This has been the law of the State, at least, since the Act of 1808, c. 49, s. 20; Car. & Nic., 205. The objects of reading and signing the minutes in open court are to enable the attorneys, suitors and the public, to know what has been done during the term; to prevent improper entries from being made upon the record; to correct mistakes before the minutes are signed; and to have the official sanction of the judge as to the correctness of the entries of each day's proceedings. It never was contemplated that the minutes should be signed at any other time or place than during the term and in the court-house, in public view, or where at least the people may attend at pleasure. A signature at chambers, when none, or a part only, of the counsel are present, is liable to the grossest abuses. A signature in another town or place, after the court has adjourned, and when business transactions may have been forgotten, often creates the danger or suspicion of surreptitious entries, and is derogatory to that verity which has been uniformly ascribed to records. Moreover, the event of the death of the judge, before the period fixed for the signature, would create the utmost perplexity and embarrassment in regard to the unauthenticated proceedings, if his signature is necessary, as we are inclined to think it is, under the statute, to give validity to the entries upon the minutes.”

Attorney General Heiskell, for the State, insisted that the statute is directory. Similar statutes have been so held in Alabama, Georgia, Ohio and Missouri: Bartlett v. Laird, 2 Ala., (N. S.,) 162; The Justices v. House, 20 Ga., 333; State v. Osborne, 7 Ohio, 214; Platte Co. v. Marshall, 10 Miss., 347. See, also, Hooper v. Ashtabula, Wright, 708; 1 New Jersey, 337; Sprague v. Litherberry, 4 McLean, 442.

Parol evidence is admissible to supply a lost record: Farmers' Bank v. Gibson, 6 Barr., 57; Com. Dig., Evidence A., 3; Thurston v. Slatford, 1 Salk., 284; Norvill v. McHenry, 1 Man., (Mich.,) 227; Ordinary v. Wallace, 1 Rich., 507; Young v. Baker, T. U. P. Charlton, 276.

Where a clerk dies before record made up, it is regarded as lost; Longly v. Vose, 27 Me., 185; Prudin v. Alden, 23 Pick., 184; Evans v. Thomas, 2 Strange, 833; Dayrell v. Bridge, Ib., 1264. So, where no record is made: Mayo v. Whitson, 2 Jones' Law, 231;Harris v. McRae, 4 Ired., 81.

Court may, by inherent power, supply a record: Atkinson v. Keel, 25 Ala., 552; MeLendon v. Jones, 8 Ala., 300, 301; Doswell v. Stewart, 11 Ala., 629; Deshong v. Cain, 1 Duval, (Ky.,) 310.

Matters of record may be explained by parol: Carmony v. Hoober, 5 Barr., 309;Wash., Alex. & Geo'tn St. Packet Co v. Sickles, 24 How., 336.

It is the duty of the successor to sign the unsigned minutes: Life & Ins. Co. of N. Y. v. Wilson's Heirs, 8 Pet., 291. This he must do as a form, not with knowledge of what he authenticates, but on the faith of the Clerk's official act. By the common law, the minutes were merely memoranda, from which records were made up after the term: Waghorst v. State, 7 Md., 450; 2 East P. C., 518; 1 Ch. Cr. L., 642; Read v. Sutton, 2 Cush., 115, 123; Weed v. Weed. 25 Conn., 337; Wash., A. & G. St. P. Co. v. Sickles, 24 How., 333. Clerk's entries records, until extended; Pierce v. Goodrich, 47 Me., 176. See, also, Cromwell v. Bank of Pittsburg, 2 Wall. Jr., 569; Fowler v. Bird, 2 Hemp., 213; Frink v. Frink, 24 N. H., Taylor v. Com'l, 44 Penn., (8 Wright,) 131.

Insisted that matters occurring in Court can be proved ??parol, where they were matters of which no record was kept, as of the matters involved in a trial, as well as where the record was lost, showing that the record was only evidence of the facts, and was not itself the fact which it proved; the judgment or other judicial act. That in this case, the fact of the discharge of the jury by consent, existed; and if this was not a good record for want of signature, the evidence of the Clerk, the next best, was competent to prove the fact, and it was fully proved in the record.Freeman, J., delivered the opinion of the majority of the court.

The prisoner was indicted at the April Term of the Criminal Court of Davidson county, for the murder of John Perry.

On the 27th of June, 1870, he was arraigned, pleaded not guilty, and was put upon his trial before a jury, which trial continued for several days. After the argument of the case, the jury were charged by the Court, and proceeded to consider their verdict. On the 1st day of July, an entry is made by the Court, that the jury were again respited until the next day at 9 o'clock. On Saturday, the 2d day of July, an entry appears, to the effect “that the jury returned into open court and resumed the consideration of the case;” and “the jurors aforesaid, upon their oaths aforesaid, do say, that they can not agree in a verdict.” It is, therefore, considered by the Court, with the assent of the prisoner, the defendant, that the jury be discharged and a mistrial be entered in the said cause; and thereupon the prisoner was remanded to jail.

It also appears that the two entries on the 1st and 2d days of July, 1870, above referred to, were never signed by the presiding judge, Hon. John Hugh Smith, nor by any successor, judge of that court. It is known that the Judge was never on the bench after the 2d day of July, but was taken sick on Monday after, and died on Thursday.

At September Term, 1871, the prisoner was tried by a jury, and a verdict of voluntary manslaughter rendered by the jury, and he sentenced to five years in the Penitentiary.

Before this, however, the defendant, by his counsel, moved for his discharge on the ground that he had been once in jeopardy, by being put on his trial before the former jury, and then interposed a special plea of “once in jeopardy,” which plea was found against the prisoner; and now his counsel insist on a reversal here, on the ground that this plea ought to have been sustained on the facts, and the prisoner discharged.

It may be conceded that the prisoner, having been put on his trial, with a lawful jury, his jeopardy commenced, and that the Court could not, without the interposition of some of the well defined causes, as settled by our various adjudications on this question, discharge the jury without entitling the prisoner to be discharged from further prosecution. It is not denied that the jury may be discharged by consent of the prisoner. This brings us to the precise question presented in the case. No objection is taken to the record showing the fact that the prisoner was put on trial before a proper jury, before Hon. John Hugh Smith, and that the jury, after argument, were charged by the Court, and proceeded to consider of their verdict; but it is insisted that the entry on the 1st day of July, 1870, and the one on the 2d day of July, showing that the jury could not agree, and were discharged by the assent of the prisoner, can not be looked to as evidence of the fact of such discharge; and therefore, the only fact shown by the proper character of evidence, is that the prisoner was once placed in jeopardy by having his case submitted to this jury, and that no legal evidence appears of his consent to the discharge of the jury from the rendition of a verdict.

We have not time, at this late day of the term, to go into a consideration or critical examination of the authorities presented on this question. We can only give the conclusions at which the Court has arrived. By section 4040, sub-sec. 4, of the Code, it is made the official duty of the Clerks of our courts “to keep a well-bound book, in which shall be entered the minutes of each day's proceedings, during the session of the court, in the order in which they are made.” By section 4101 of the Code, under title, “Judicial Tribunals and their Relative Rights,” it is provided: “The minutes of the court shall be read each morning in open court, and signed by the Judge.”

Assuming that this last provision is for the purpose of authentication, and that the record thereby has its highest verification, in fact imports absolute verity, as any other record of a court, the question is, whether, in a case like the present, on failure to receive this last authentication by the death of the Judge, the act of the other officer, the Clerk, whose duty it is to enter the minutes of each day's proceeding in his record book, shall go for nothing, and that such minutes, so kept by...