Smith v. State
| Decision Date | 06 January 1965 |
| Citation | 19 McCanless 314,215 Tenn. 314,385 S.W.2d 748 |
| Parties | , 215 Tenn. 314 Milford C. SMITH, J. E. Lindsey and H. C. Armstrong, Plaintiff in Error. v. STATE of Tennessee, Defendant in Error. |
| Court | Tennessee Supreme Court |
Louis E. Eubanks, Memphis, for Milford C. Smith.
Warren Miller, Memphis, for J. E. Lindsey, Hanover, Hanover, Hanover & Walsh, Memphis, for H. C. Armstrong.
George F. McCanless, Atty. Gen., Edgar P. Calhoun, Asst. Atty. Gen., Nashville, for the State.
The plaintiffs in error, defendants in the court below, were indicted on three separate charges: fraudulent sale of securities, T.C.A. § 48-1644; conspiracy to violate the fraudulent advertising law, T.C.A. § 39-1910; and conspiracy to violate the registration section of the securities law, T.C.A. § 48-1602.
The three cases were consolidated and tried before a jury which found all three defendants guilty of the fraudulent sale of securities. The defendants were also found guilty of conspiracy to violate the fraudulent advertising law. As to the charge of conspiracy to violate the registration section of the securities law, defendants Smith and Lindsey were convicted.
Motions for new trials were made and overruled. From this action of the trial court the plaintiffs in error have appealed to this Court. All of them assign as error the action of the trial court
'* * * in charging the jury on Sunday morning, November 3, 1963; allowing the jury to deliberate on Sunday, November 3, 1963; and allowing the jury to return its verdict and accepting same on Sunday, November 3, 1963.'
By our disposition of this assignment we do not in any way pass upon the sufficiency or lack of sufficiency of the evidence to convict the defendants as charged in the indictment.
In our view of this case we are compelled to reverse for the error thus assigned. The record shows that the trial of these cases commenced on Monday, October 28, 1963 [215 Tenn. 317] at 9:30 A. M. and continued through the entire week. At approximately 8:30 P. M. on Saturday night, November 2, 1963, the court charged the jury and they retired to deliberate.
At approximately 12:30 A. M. on Sunday, November 3, 1963, the jury returned to make inquiry of the judge as to where the verdict should be written on the jacket. They retired thereafter, only to return minutes later to have portions of the original charge repeated to them by the trial judge. They retired again at 12:54 A. M. and then at 1:10 A. M., on Sunday morning, the jury delivered the jacket to the trial judge, and he received the verdicts of the jury. The verdict found the defendants guilty as aforesaid.
The above facts give rise to the following question: Must the verdict of the jury be vitiated on the grounds that the receiving of a verdict and the repairing of the charge to the jury were judicial acts performed on Sunday morning?
While anciently courts of justice sat on Sunday, it has long been the rule at common law, expressed by the Latin phrase Dies dominicus non est jurisdicus, that judicial proceedings cannot be held or judicial acts performed on Sunday. In jurisdictions where the common law prevails, the right or authority to perform any judicial act on Sunday must be derived from a statute conferring that right or authority. 50 Am.Jur., Sundays and Holidays § 73 (1944).
The common law of England as it stood at and before the separation of the colonies has been adopted by the State of Tennessee, being derived from North Carolina, out of which state the State of Tennessee was carved. The Acts of North Carolina, 1715, c. 31, and Acts of North Carolina 1778, c. 5, preserved the common law, while Session Act 1789, c. 3, provided for its continuance in the State of Tennessee. Polk v. Faris, 17 Tenn. 209, 30 Am.Dec. 400 (1836); McCorry v. King's Heirs, 22 Tenn. 267, 39 Am.Dec. 165 (1842).
It is axiomatic that the common law recognized the sanctity of the Lord's Day, and this principle has become a part of the law of the State of Tennessee. Graham v. State of Tennessee, 134 Tenn. 285, 183 S.W.2d 983 (1916); State ex rel. Thompson v. Reichman, 135 Tenn. 685, 188 S.W. 597 (1916).
We have made a thorough search of the statutes of this State, and have found no statute which would alter the common law in this regard, or more specifically confer authority to perform any judicial act on Sunday. In fact, the Sunday laws of our State tend to strengthen the policy of sanctity of the Sabbath, as espoused by the common law, and prevent the exercise of any unnecessary secular labor on the Sabbath. T.C.A. § 39-4001 certainly indicates the public policy of this State as concerns the sanctity of the Sabbath.
'If any person shall be guilty of exercising any of the common vocations of life, or of causing or permitting the same to be done by his children or servants, acts of real necessity or charity excepted, on Sunday, he shall, on due conviction thereof before any justice of the peace of the county, forfeit and pay ten dollars ($10.00), one-half (1/2) to the person who will sue for the same, the other half (1/2) for the use of the county.'
Thus, the public policy of this State unquestionably opposes the commission of any secular or judicial act on Sunday. This narrows the question to be decided to the single issue of whether the acts complained of, i. e., the receiving of a verdict, and the repeating of a portion of the charge to the jury, must render the judgment of the court void as admittedly both incidents occurred early on Sunday morning.
We think the rule that judicial acts performed on Sunday are void does not apply to the act of receiving and recording the verdict of a jury. It appears to be the universally recognized rule, in the...
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...Supreme Court reaffirmed the ancient common law rule that judicial proceedings conducted on a Sunday are void. See Smith v. State, 215 Tenn. 314, 385 S.W.2d 748 (1965). As of the time of this Court's decision in King, this rule had not been altered by either the legislature or the Tennessee......
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...Supreme Court reaffirmed the ancient common law rule that judicial proceedings conducted on a Sunday are void. See Smith v. State, 215 Tenn. 314, 385 S.W.2d 748 (1965). As of the time of this Court's decision in King, this rule had not been altered by either the legislature or the Tennessee......
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