Rinehart v. State

• Decision Date: 15 April 1910
• Citation: 127 S.W. 445
• Parties: RINEHART v. STATE.
• Court: Tennessee Supreme Court

Page 445

127 S.W. 445

RINEHART v. STATE.

Supreme Court of Tennessee.

April 15, 1910.

Appeal from Criminal Court, Montgomery County; C. W. Tyler, Judge.

Marcellus Rinehart was convicted of murder in the first degree, and he appeals. Affirmed.

F. G. Gilbert, J. E. Justice, J. D. Tyler, and W. D. Howser, for plaintiff in error. Atty. Gen. Cates, for the State.

BEARD, C. J.

The plaintiff in error having been found guilty of murder in the first degree, in the killing of Rufus Hunter, has brought the record to this court for review. The trial took place at the June term, 1909, of the criminal court of Montgomery county, the jury returning their verdict on the 17th of July. On that day a motion for a new trial was entered, and on the 12th of August following a minute entry was made showing that the future hearing of this motion was continued until the next term of the court. On the following day, to wit, on the 13th day of August, there was a final adjournment of the June term of the court. The August term began on the 3d Monday of August, 1909, this being the 16th day of the month. The record shows that on August 19th the motion for a new trial was overruled, and 30 days were granted by the court for the preparation and filing of a bill of exceptions. Acting under this leave, the counsel for plaintiff in error prepared a paper purporting to be a bill of exceptions, which, being signed by the trial judge, was noted as filed on the 13th of September, 1909. Under these conditions, have we anything before us save the technical record? Can this paper, styled a "bill of exceptions," be treated as such by this court?

It was long the settled law of this state that a bill of exceptions filed after the close of the term at which the case was tried came too late and could not be considered a part of the record. McGavock v. Puryear, 6 Cold. 34; Clark v. Lary, 3 Sneed, 77; Jones v. Burch, 3 Lea, 747; Sims v. State, 4 Lea, 359; Patterson v. Patterson, 89 Tenn. 151, 14 S. W. 485; Ballard v. Railroad, 94 Tenn. 205, 28 S. W. 1088; Bettis v. State, 103 Tenn. 339, 52 S. W. 1071.

This rule was modified, however, by chapter 275 of the Session Acts of 1899, by the first section of which it was provided that in all cases of appeal from trial courts to the Supreme Court "the judge or chancellor may in his discretion allow the parties time in which to prepare a bill of exceptions, not to exceed thirty days after the adjournment." In the Bettis Case, supra, this court, recognizing the long-established rule and its modification by this statute, held that the bill of exceptions, filed after the expiration of the extension given by the trial judge, could not be used as a part of the record. In that case there was an affirmance of the judgment of the trial court, pronounced on a verdict of guilty of murder in the second degree, with punishment fixed at confinement in the penitentiary for a term of 10 years.

It is insisted, however, that inasmuch as the motion for a new trial in the case at bar was continued from the trial term to the succeeding term of the court, this carried over the whole case, with the right to file a bill of exceptions within the extension granted by the court. This insistence is rested on chapter 40 of the Acts of 1899, as construed by this court in Railroad v. Simmons, 107 Tenn. 392, 64 S. W. 705, and Ray v. State, 108 Tenn. 282, 67 S. W. 553. This statute provides that, "whenever in the courts...