State v. Cole
| Decision Date | 30 April 1849 |
| Citation | 28 Tenn. 626 |
| Parties | THE STATE v. COLE. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
Cole was presented in the circuit court of Decatur county. He pleaded not guilty, and was tried by Hardin, special judge, and a jury. He was found guilty, and, on motion, the judgment was arrested. The state appealed.
Attorney General, for the State.
B. S. Allen, for defendant.
He cited 1 Meigs' Dig. 402; 4 Yerg. 141, 146.
This is an indictment against the defendant for the offence of gaming, to which he pleaded not guilty, upon which plea he was tried and convicted at the March term, 1849, of the circuit court of Decatur. The circuit judge arrested the judgment, and thereupon the state appeals to this court.
The judgment was arrested in the court below upon the supposed ground that the record showed that the grand jury had not been properly summoned--in this, that the venire facias is signed by the clerk of the county court of Decatur without designating himself as clerk, and that the mandatory direction of the writ was in the name of the clerk instead of the name of the court. The writ, so far as these objections are concerned, is in the words following:
“ State of Tennessee. To the Sheriff of Decatur County, greeting:
I command you to summons the the following persons to serve as jurors at the next term of the circuit court to be held in the town of Decaturville, on the 3d Monday in July next. Given under my hand, at office, the 3d day of May, 1848.
B. H. GRAVES.”
We do not think that the judgment in this case ought to have been arrested upon the supposed defects of this writ of venire facias. The signature of the clerk, as made by him, is good; it has always been held that, as a matter of necessity, the courts will judicially know the public officers of the state and counties.
In this case, in the absence of proof to the contrary, we must recognize B. H. Graves as the clerk of the county court of Decatur, he being the only legally-authorized person to issue a writ of venire facias for the circuit court of that county. We do not perceive how additional verity of this fact could be given by the appendage to his name of the letters C. C. C., D. C., which might be supposed to mean Clerk County Court, Decatur County, or even the words Clerk of the County Court of Decatur, written at length; this would not make him clerk if he were not, and is it only from the fact of his being clerk that his acts, as such, have verity; we know he is clerk, and, therefore,...
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State ex rel. Henderson v. Russell
...venire before he pleads to the indictment he cannot thereafter avail himself of a claim that the venire was improperly composed. State v. Cole, 28 Tenn. 626; McTigue v. State, 63 Tenn. 313; Turner v. State, 89 Tenn. 547, 15 S.W. 838; Ellis v. State, 92 Tenn. 85, 20 S.W. 500. See also State ......
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Woodson v. State
...92 Tenn. 85, 20 S.W. 500 (1892); Turner v. State, 89 Tenn. 547, 15 S.W. 838 (1891); McTigue v. State, 63 Tenn. 313 (1874); State v. Cole, 28 Tenn. 626 (1849); Lillard v. State, 528 S.W.2d 207 (Tenn.Cr.App.1975); State ex rel. Henderson v. Russell, 3 Tenn.Cr.App. 204, 459 S.W.2d 176 (1970); ......
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State ex rel. Lawrence v. Henderson
...to the venire or to the jurors summoned under it, before he pleads to the indictment, an objection thereafter is too late. State v. Cole, 28 Tenn. 626; McTigue v. State, 63 Tenn. 313; Epperson v. State, 73 Tenn. 291; Dyer v. State, 79 Tenn. 509; Turner v. State, 89 Tenn. 547, 15 S.W. 838; E......
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Yearwood v. State
...essential preliminary step before the plea in abatement could be considered. Caruthers History of a Law Suit, 6th Ed., sec. 169. State v. Cole, 28 Tenn. 626, 628; Turner v. State, 89 Tenn. 547, 15 S.W. 838; Gardner v. Quinn, 154 Tenn. 167, 289 S.W. Again, in Walker v. State, 197 Tenn. 452, ......