State v. Harris
| Decision Date | 02 February 1898 |
| Citation | 45 S.W. 438 |
| Parties | STATE v. HARRIS. |
| Court | Tennessee Supreme Court |
Appeal from criminal court, Davidson county; J. M. Anderson, Judge.
Dan Harris was indicted, tried, and convicted of the crime of murder. He was sentenced to death, and from the judgment of the court he appeals. Affirmed.
E. S. Ashcraft and W. H. Washington, for appellant. The Attorney General, for the State.
Dan Harris was convicted of the murder of Lizzie Edmundson, and sentenced to death, and has appealed. Able counsel has been appointed to represent him in this court, and he has, after examining the record, presented to the court certain matters which it is insisted are defects in the proceedings of the court below.
It appears that the jurors selected for the May term, 1896, were appointed and designated by the judge of the criminal court. Out of the panel the judge selected and appointed the grand jury, and it is objected that this was irregular, and vitiated the proceedings. Acts 1853-54, c. 13, which created the criminal court of Davidson county, provides, in section 5, that the judge of the court shall from time to time appoint a grand jury and two petit juries to attend its regular and special terms. Under this statute it was entirely competent for the judge of the criminal court of Davidson county to designate by name 13 qualified persons to serve as a grand jury, or he could designate a larger panel, and from them select the required number of 13. Turner v. State, 89 Tenn. 558, 15 S. W. 838. There was no error in this feature of the trial.
It appears that when the indictment was found the regular judge, Hon. J. M. Anderson, was not in attendance at court. The cause of his absence is not stated. It further appears that the deputy clerk caused an election to be held for a special judge to hold the court, under Shannon's Code, § 5730, when Hon. Matt W. Allen was elected to act in the absence of the regular judge, and the indictment was found, and returned into open court. This indictment was prepared by E. S. Ashcraft, attorney general pro tem., who had previously been appointed by the court to act as such in the absence of the regular district attorney, Robert Vaughn. It is said that this proceeding is irregular, and defendant has not been proceeded against according to law. Code, § 5730 (Shannon's Compilation), provides, "When from any cause the judge of any court of record in this state, except the supreme court, fails to attend, or if in attendance cannot properly preside in a cause or causes pending in such court, or is unable to hold the court, a majority of the attorneys of the court, who are present and are residents of the state, shall elect one of their number then in attendance to hold the court for the occasion, who shall have all the qualifications of a judge of such court, and who shall accordingly preside and adjudicate." Subsection 1 provides, "The election shall be held by the clerk and in case of a tie he shall give the casting vote. Subsection 2, "The person elected shall during the period that he acts have all the powers and be liable to all the responsibilities of a regular judge." This act appears, from the record, to have been complied with, in the selection of the special judge; and the act has been held to be constitutional, and applicable in criminal cases as well as civil. Ligan v. State, 3 Heisk. 159; Halliburton v. Brooks, 7 Baxt. 320; Hundhausen v. Insurance Co., 5 Heisk. 705; Brewer v. State, 6 Lea, 199. It is objected that the election was held by a deputy clerk, and not by the clerk, as the first subsection of the act provides. Under the statutes and decisions of this state, a deputy has full power to transact all the business of the clerk. Shannon's Code, §§ 409, 410, 4050, subsec. 4; Martin v. Porter, 4 Heisk. 413.
It is said that E. S. Ashcraft, attorney general pro tem., is not an official legally authorized to draw and prefer indictments, and hence the indictment in this case is a nullity. Shannon's Code, § 5769, provides that if the attorney general for a district fails to attend any term of the circuit court, or is disqualified from acting, or if there is a vacancy in office, the court shall appoint some other attorney to supply his place. Section 5770: "The acts of such attorney general pro tem. shall be as valid as if done by the regular officer," etc. See, also, Turner v. State, 89 Tenn. 555-558, 15 S. W. 838.
It is said finally that, while any one of these objections may be cured under the statutes, still, when there is a combination of such irregularities, it must be fatal. It is said that here there was a special judge, a deputy clerk, an attorney general pro tem., a panel named by the regular judge, and a grand jury selected from such panel by him, and thus there is little, if any, of the regular machinery of the court involved in the trial of this case. But this, we are of opinion, can avail nothing, as in such instance...
To continue reading
Request your trial
-
Ridout v. State
...than the one provided by the statute." And so Judge Deaderick, in the Halliburton Case, commented to the same effect. In Harris v. State, 100 Tenn. page 287, 45 S.W. 438, was held that a special judge selected under this statute to preside in the absence of the regular judge may try and dis......
-
Ridout v. State
...the one provided by the statute." And so Judge Deaderick, in the Halliburton Case, commented to the same effect. In Harris v. State, 100 Tenn. page 287, 45 S. W. 438, it was held that a special judge selected under this statute to preside in the absence of the regular judge may try and disp......
-
Webb v. State
...below cannot be raised for the first time and considered by this court. Armstrong v. State, 150 Tenn. 416, 265 S.W. 672; Harris v. State, 100 Tenn. 287, 45 S.W. 438; Moore v. State, 96 Tenn. 209, 33 S.W. 1046; Miller v. State, 80 Tenn. 223, 12 Lea 223; Garner v. State, 73 Tenn. 213, 5 Lea 2......
-
Balden v. State
...is necessary to state that section 4, Acts 1841-42, was construed by this court, in the case of Harris v. State, at the December term, 1897, reported in 100 Tenn., at page 289, 45 S. W. 438. It appears from that case that Harris appealed to this court from a death sentence for the crime of ......