Moss v. State

• Decision Date: 11 February 1915
• Citation: 173 S.W. 859,131 Tenn. 94
• Parties: MOSS v. STATE.
• Court: Tennessee Supreme Court

173 S.W. 859

131 Tenn. 94

MOSS v. STATE.

Supreme Court of Tennessee.

February 11, 1915

Appeal from Criminal Court, Putnam County; J. H. Gardenhire, Judge.

McConnell Moss was convicted of murder in the first degree, and he appeals. Reversed and remanded.

W Bryant, V. E. Bockman, J. A. Carlin, and B. G. Adcock, all of Cookeville, and P. C. Crowley, of Smithville, and John Gothard, of Cookeville, for appellant.

Wm. H Swiggart, Jr., Asst. Atty. Gen., for the State.

NEIL C.J.

The plaintiff in error was indicted in the criminal court of Putnam county, at the September term, 1910, for the murder of H. S. Gill. He was tried and found guilty of murder in the first degree with mitigating circumstances at the May term 1914, and judgment was rendered that he be confined in the state penitentiary during his natural life. He made a motion for a new trial in the lower court, which was overruled, and he has appealed to this court and assigned errors.

We deem it unnecessary to notice any of the errors assigned, except one based upon the following facts: The minutes of the court for Saturday, May 23d, recite that the hearing of testimony was concluded on that day, and the arguments of counsel continued until 11:30 p. m., and that no formal adjournment of court was taken, but the sheriff was directed to bring the jury into court on the next morning. Following this an entry appears, as of date May 24th, reciting that the court met pursuant to adjournment; present and presiding the Honorable J. M. Gardenhire, Judge, etc. The entry then proceeds as follows:

"No formal proclamation of the opening of court was made by the sheriff, the court not formally having adjourned, but having taken a recess until this time for the purpose of the court's delivering his charge to the jury in the case of State of Tennessee v. McConnell Moss, charged with murder."

It is then recited, under the proper style of the case, that the Attorney General was present for the state, and also the defendant in his own proper person and by counsel, and that the jury also came, giving the names of the members of the jury, etc.,

"and said jury having heard all of the evidence on both sides of the case, and having heard the arguments of counsel, the court proceeded to read his charge to the jury, which was delivered to them in writing, and said jury, having received the charge of the court in writing, retired, in charge of their sworn officers aforesaid, to consider of their verdict, carrying with them said written charge of the court and indictment in the case. This charge was delivered at 11 o'clock a. m., Sunday, May 24, 1914."

The minutes on Monday, the following day, recite in regular form that the jury having heard all the evidence and the arguments of counsel, and having received the charge of the court, returned their verdict into open court.

The question presented is whether the trial judge could lawfully hold court and charge the jury on Sunday.

In a long experience on the bench the writer of this opinion can recall no instance in which a similar attempt was ever before made in this state by any of our trial judges, nor can any other member of the court recall such instance. Some authorities have been submitted to us from other jurisdictions in which such a practice has been measurably sanctioned under special circumstances or by statute, but only two cases have been brought to our attention where such an attempt has been made in the absence of a statute. One of these cases is Gholston v. Gholston, 31 Ga. 625, 638. A brief excerpt from the opinion in this case will show all that appears on the subject. Said the court:

"The court was actually delivering the charge to the jury on Saturday night, when the hour of 12 o'clock arrived, and the Sabbath day, according to our computation of time, had commenced before he concluded. This may have been an inadvertence, but, under all the circumstances, was certainly no very grave error. * * * Whatever judicial action was had on the Sabbath day was either inadvertent or inevitable. * * * We think what transpired on the Sabbath was not sufficient to vitiate the verdict, holding, at the same time, that all courts should abstain from the transaction of ordinary business on that holy day."

The next instance is Jones, Adm'r, v. Johnson, 61 Ind. 257, 264. The point in decision was that the trial judge committed error in entering the jury room on Sunday and instructing the jury in the absence of the parties and of their counsel. After quoting a passage from McCorkle v. State, 14 Ind. 39, to the effect that the law permitted a verdict to be returned on Sunday, and as an incident authorized the court to sit on that date to receive any motion or order touching it, and to discharge the jury after rendering it, continued:

"We may add, as a further incident to this authority to receive a verdict on Sunday, that in our opinion, if it should appear to be necessary to a speedy formation and return of a verdict, and the jury should desire to be informed on that day as to any part of the testimony, or as to any point of law arising in the case, the court may sit on Sunday for the purpose of giving the jury any information required, in the presence of, or after notice to, the parties or their attorneys."

It is perceived that what was said in this case upon the subject of instructing the jury was dictum, since the ground of reversal, and the only point under examination, was the action of the trial judge in going into the jury room and giving additional instructions, in the absence of and without notice to the parties or their counsel.

In the Georgia case the matter was treated as merely an inadvertence, and, if not so, as a necessity.

We are referred to the case of People v. Odell, 1 Dak. 197, 203, 46 N.W. 601, 603. A short excerpt from that case will sufficiently show its substance:

"It appears from the record that the jury was charged and retired to consider of their verdict about 9 o'clock on Saturday night, and that at 3 o'clock on Sabbath afternoon, the jury not having agreed, the judge, on his own motion, had them brought in and delivered to them further instructions, by way of correcting a supposed error in his former charge, and this is assigned as error. It is claimed that, this being a judicial act, it could not be done on the Sabbath. The Sabbath being dies non juridicus, it is doubtless the well-settled general rule that no judicial act can be done on that day. But the jury being out, they are not permitted to separate until they have agreed upon their verdict, or are discharged by the court from further consideration of the case. The Code of Criminal Procedure provides (section 338) that 'while the jury are absent the court may adjourn from time to time as to other business, but it is nevertheless deemed open for every purpose connected with the cause submitted to them until the verdict is rendered or the jury discharged."

So it was held that under the statute the court was to be considered open for such case.

In the absence of a statute authorizing it, there can be no doubt that it is unlawful for a court to do any judicial act on Sunday. The leading case is Swann v. Broome, 3 Burrows, 1955--year 1764. In this case Lord Mansfield reviewed the whole subject. He said that anciently the court sat on Sundays; that the ancient Christians practiced this for two reasons: One was in opposition to the heathen, who were superstitious about the observation of days and times, conceiving some to be ominous and unlucky and others lucky; that therefore the Christians laid aside all observance of days; that a second reason they had was that by keeping their own courts always open they prevented Christian suitors from resorting to heathen courts. But he further observed that in the year 517 a canon was made forbidding the adjudication of causes on Sunday; that this canon was ratified in the time of Theodosius, who fortified it with an imperial constitution. He referred to other subsequent canons adding other holy days. These canons, it seems, were received and adopted by the Saxon kings of England, and were all confirmed by William the Conqueror and Henry II, and so became part of the common law of England. In the course of time, other days were disregarded as nonjudicial, but Sunday retained. It was held that, while merely ministerial acts might be done on Sunday, no judicial act could be performed. For example, the rendering of a judgment or the awarding of a process, since these acts could not be supposed to be done but whilst the court was actually sitting. Said his lordship:

"As to the observation 'that the courts of justice have never been restrained by act of Parliament from sitting on Sundays, and that St. 29 Car. 2, c. 7, does not extend to giving judgments, it was needless to restrain them from it by act of Parliament. They could not do it, by the canons anciently received and made a part of the law of the land. And therefore restraining them from it by act of Parliament would have been merely nugatory. * * * In McCalley's Case in 9 Co. it was objected that Sunday is not dies juridicus, and that therefore no arrest can be made in it, and every one ought to abstain from secular affairs on that day. But it was answered and resolved that no judicial act ought to be done in that day, but ministerial acts may be lawfully executed in Sunday."

To the same effect is 4 Bacon's Abridgment, page 640:

"By the common law dies dominicus non est juridicus. No plea therefore shall be holden quindena Paschæ, because it is always the Lord's day; but it shall be crastino quindenæ Paschæ. F. N. B. 17, f. So, upon a fine levied with proclamations according to the statute of 4 H. 7, c. 24, if any of the...