Muse v. State

• Citation: 61 S.W. 80
• Parties: MUSE v. STATE.
• Decision Date: 22 December 1900
• Court: Tennessee Supreme Court

61 S.W. 80

MUSE v. STATE.

Supreme Court of Tennessee.

December 22, 1900.

Appeal from circuit court, Coffee county; Dan Williams, Special Judge.

One Muse was convicted of an assault with intent to commit voluntary manslaughter, and he appeals, Affirmed.

W. V. Whitson and B. P. Bashaw, for appellant. Geo. W. Sutton, Atty. Gen., and Atty. Gen. Pickle, for the State.

BEARD, J.

This is a conviction of an assault with intent to commit voluntary manslaughter, with punishment fixed at 11 months' imprisonment in the county jail, and the payment of a fine of $500. It is assigned for error that the record fails to show a plea of not guilty. This is true, but it does show that the jury were sworn to try the issues joined, the necessary inference from which is that this plea was interposed. In this respect, the case differs from Lynch v. State, 99 Tenn. 124, 41 S. W. 348, which is relied on by plaintiff in error. There the entry on the minutes failed to show a plea or anything from which its existence could be implied. For this reason that case was reversed. Here, however, it being clearly impliable that such plea was filed, the statute forbids a reversal because the clerk of the court omitted to file or enter it of record. Shannon's Code, § 7217.

The assignment of error, however, most earnestly pressed upon the court, is that the evidence does not warrant conviction. But, in the condition of the record, we cannot consider this assignment. The trial judge, in overruling the motion for a new trial, allowed plaintiff in error 30 days within which to make and file his bill of exceptions. There is in the transcript a paper so entitled, but there is nothing to indicate that it was ever filed. In Bettis v. State, 103 Tenn. 339, 52 S. W. 1071, a bill of exceptions was filed four days after the time allowed for its preparation. In the opinion it was suggested that there might be a doubt whether chapter 275 of the Acts of 1899, allowing parties desiring to appeal to this court 30 days in which to prepare a bill of exceptions, was intended to apply to criminal causes. But, conceding that it did, it was held that the bill of exceptions in that case came too late. Since then we have had occasion to review the statute in question, and have announced in one or more of such cases that it does. Under this act, the bill of exceptions must not only be prepared, but filed, within the extended period. To become a part of the record, it must affirmatively appear that it was...