Neely v. State

• Decision Date: 04 April 1962
• Citation: 14 McCanless 52,356 S.W.2d 401,210 Tenn. 52
• Parties: James A. NEELY v. STATE of Tennessee. 14 McCanless 52, 210 Tenn. 52, 356 S.W.2d 401
• Court: Tennessee Supreme Court

Page 401

356 S.W.2d 401

James A. NEELY v. STATE of Tennessee.

14 McCanless 52, 210 Tenn. 52, 356 S.W.2d 401

Supreme Court of Tennessee.

April 4, 1962.

Harvey M. Yaffe, Memphis, for plaintiff in error.

George F. McCanless, Atty. Gen., Walker T. Tipton, Asst. Atty. Gen., Nashville, for the State.

FELTS, Justice.

Plaintiff in error, hereinafter called defendant, was convicted of murder in the second degree for killing Percy Smith, and his punishment fixed at not more than 15 years in the penitentiary. He appealed in error and insists the evidence preponderates against the verdict and in favor of his innocence.

The Attorney General, on behalf of the State, has made a motion to dismiss the appeal or affirm the judgment upon the ground that 'defendant failed to file his motion for a new trial within thirty (30) days of the verdict as required by T.C.A. 27-201.' This raises the question as to the proper construction of this statute which, so far as we are aware, has not heretofore been determined.

From the minute entries of the Trial Court in the record before us, it appears that the trial of defendant was completed, the jury returned their verdict, and it was recorded May 5, 1960, in a minute entry as follows:

'Comes the Attorney General on the part of the State and the defendant in proper person and by counsel of record, whereupon there comes into open Court under charge of their proper officer the same jury heretofore selected to try the above cause, who upon their oath do say: WE THE JURY FIND THE DEFENDANT GUILTY OF MURDER IN THE SECOND DEGREE AS CHARGED IN THE INDICTMENT AND FIX HIS PUNISHMENT AT IMPRISONMENT IN THE PENITENTIARY FOR NOT MORE THAN FIFTEEN YEARS: Thereupon the Defendant through his counsel of record, moves the Court for a new trial herein, which motion is set for hearing on June 17, 1960. O/c Defendant's bond is raised to SEVENTY FIVE HUNDRED DOLLARS.'

Thus, it will be noted no judgment was entered on the verdict. Later minute entries show that defendant's motion for a new trial, set for June 17, 1960, was continued, or reset, a number of times and finally heard and overruled October 21, 1960, and on that day judgment was entered on the verdict. Defendant saved a bill of exceptions, in which his motion for a new trial was incorporated. It shows the clerk marked the motion: 'Filed 10-21-1960.'

The argument for the State is that this shows defendant's motion for a new trial was not filed until October 21, 1960, or 168 days after the entry of the verdict; that T.C.A. Sec. 27-201 required the motion to be filed within 30 days from the entry of the verdict, and after a lapse of that period, without any motion being filed, the verdict became final, or passed beyond the court's control, so that the court had no jurisdiction to entertain a motion for a new trial. T.C.A. Sec. 27-201 is in these words:

'A rehearing or motion for new trial can only be applied for within thirty (30) days from the decree, verdict or judgment sought to be affected, subject, however, to the rules of court prescribing the length of time in which the application is to be made, but such rules in no case shall allow less than ten (10) days for such application. The expiration of a term of court during said period shall not shorten the time allowed.'

The part here relied on by the State is: 'A rehearing or motion for a new trial can only be applied for within thirty (30) days from the decree, verdict or judgment sought to be affected.' Does this mean that the motion for a new trial must be filed within 30 days from the entry of the verdict, or within 30 days from the entry of the judgment on the verdict? Or does it treat a verdict and a judgment as one and the same thing?

There is, of course, a fundamental difference between a verdict and a judgment, the one being the jury's finding on the facts; and the other, the Judge's determination of the case upon the verdict. A verdict, before judgment has been entered thereon, has no finality, cannot be executed (Sharp v. State, 117 Tenn. 537, 97 S.W. 812), and cannot be pleaded in bar as res judicata or offered in evidence as collateral estoppel. Smith v. McCool, 83 U.S. 560, 21 L.Ed. 324; 2 Freeman on Judgments (5th Ed.), sec. 718; 30A Am.Jur., Judgments, sec. 339.

When a verdict is entered, the court should enter judgment thereon, if judgment be not arrested or a motion for a new trial granted (T.C.A. Sec. 40-2701); but 'until the judgment is entered or the cause in some way disposed of, it is still pending and stands continued with the unfinished business until the next term' (Greenfield v. State, 66 Tenn. 18, 19). Sharp v. State, supra; State ex rel. Underwood v. Brown, 193 Tenn. 113, 119, 244 S.W.2d 168.

Under the common law rule, all judgments and decrees were deemed 'in the breast of the court' during the whole of the term and could be set aside at any time during the term, however long it lasted. This power of the court over its judgments and decrees ended with the end of the term. That rule was changed by statutes (now T.C.A. Sec. 27-312) making judgments and decrees final after 30 days from their entry if no motion for a new trial was filed within that time. Jackson v. Jarratt, 165 Tenn. 76, 81, 52 S.W.2d 137; Louisville & N. Railroad v. Ray, 124 Tenn. 16, 26-29, 134 S.W. 858.

But this statute (now T.C.A. Sec. 27-312), making judgments final if no motion for a new trial is filed within 30 days from their entry, 'does not apply to verdicts' (italics ours). Prince v. Lawson, 167 Tenn. 319, 321, 69 S.W.2d 889.

It is customary to enter a judgment when the verdict is entered. But the judgment may be entered on the verdict later at any time during the term, or even at a subsequent term. McCall v. State, 167 Tenn. 329, 333, 69 S.W.2d 892; James v. State, 196 Tenn. 435, 437, 268 S.W.2d 341; Louisville & N. Railroad v. Ray, supra. But it cannot be entered nunc pro tunc so as to cut off the right of appeal. Jackson v. Jarratt, supra.

A motion for a new trial may be filed after entry of the verdict and before entry of the judgment, or after judgment is entered on the verdict. But 'the losing party is not required to enter his motion for a new trial until after a judgment is entered' (italics ours; Green, C. J., McCall v. State, supra). Louisville & N. Railroad Co. v. Ray, supra, 124 Tenn. 16, 26-29, 134 S.W. 858, Ann.Cas.1912D, 910; Feldman v. Clark, 153 Tenn. 373, 284 S.W. 353; Jackson v. Jarratt, supra, 165 Tenn. 76, 81, 52 S.W.2d 137; McAlester v. Monteverde, 22 Tenn.App. 14, 17, 115 S.W.2d 257.

Thus, the established rule of practice, under our statute (now T.C.A. Sec. 27-312), and the above cited cases construing it, is that if a judgment is not entered when the verdict is recorded, the losing party, at his option, may file his motion for a new trial after entry of the verdict and before entry of the judgment, or may wait until after entry of the judgment and file his motion for a new trial within 30 days after such entry.

Such was the practice under our statutes (now T.C.A. Sec. 27-312) when the statute, here relied on by the State, was first enacted as section 8980 of the 1950 Code Supp., and was re-enacted without change as T.C.A. Sec. 27-201. Thus, T.C.A. sections 27-201 and 27-312 should be construed together, and, so construing them, we think the intent of section 27-201 was to conform to, rather than to change, the well-established practice under T.C.A. Sec. 27-312. To say the least, it seems too ambiguous to be given the drastic effect contended for.

But, in any view of this statute, ...