State v. Herron

• Decision Date: 23 February 1888
• Parties: STATE <I>v.</I> HERRON.
• Court: Tennessee Supreme Court

Page 37

7 S.W. 37

STATE

v. HERRON.

Supreme Court of Tennessee.

February 23, 1888.

Appeal from circuit court, De Kalb county; M. D. SMALLMAN, Judge.

The Attorney General, for the State. Nesmith, Grebble & Adcock, for defendant.

CALDWELL, J.

The defendant was indicted for burglary. He demurred, and assigned as ground of demurrer that the indictment had not been returned into court indorsed "A true bill," signed by the foreman of the grand jury, and entered of record. The circuit judge sustained the demurrer, and quashed the indictment. The state has appealed. The transcript contains two copies of the indictment; one taken from the original, and the other from the minutes of the court. They are identical, except that the former is indorsed "A True Bill. MILTON WARD, Foreman of the Grand Jury," and the latter has no part of such indorsement upon it. Immediately preceding the copy from the minutes, and as a part of the same entry, appears this language: "This day came the grand jury for the state, and filed in open court the following bill of indictment, to-wit." [Here follows a full copy of the indictment, omitting the indorsement upon it.]

This statement of the case shows that the indictment does contain the indorsement, "A true bill," and that it was signed by the foreman of the grand jury, in compliance with section 5921, Code, (M. & V.;) also that the indictment was presented in open court by the grand jury, as prescribed by Code, 5926. It further shows that the indorsement, "A true bill," and the signature of the foreman thereto, were not transcribed upon the minutes of the court. Is this omission fatal? Is an indictment which has the proper indorsement upon it, and which has been returned into open court by the grand jury, and entered upon the minutes by the clerk, bad because of an omission on the part of the clerk to transcribe that indorsement upon the minutes of the court? The facts of the record limit the demurrer to that precise point. Its decision is to be reached by a construction of the statute contained in Code 4854, subsec. 9, which is in these words: "The clerk of each circuit court * * * is required to enter at full length upon the minutes of the court the presentment or indictment in cases of felony." There is no doubt in our minds that the legislature enacting this law intended that all indictments for felony, including all necessary indorsements thereon, should be spread upon the minutes of the court into which they should be returned. Such intention is manifest from a leading object had in view by the passage of the act, namely, the preservation of the indictment, and an easy procurement of an authentic copy thereof, in case the original should be lost or destroyed. The original indictment without the indorsement, "A true bill," followed by the signature of the foreman of the grand jury, is utterly worthless, and devoid of any legal efficiency whatever. A copy from the minutes without this indorsement and signature cannot possibly be any better. Therefore, if the original be lost, and the indorsement and signature in question be not found upon the minutes of the court, it follows that a sufficient copy cannot be had, and this purpose of the statute is entirely defeated. If the original indictment is on file in the court, the defendant is tried upon that, and a copy is not needed at all; but, if the original is not on file, a copy is necessary, and, to be good in legal contemplation, it must show the indorsement and signature so indispensable to the validity of the original. Hence it is the plain and imperative duty of the clerk, under the statute, to transcribe such indorsement and signature, as well as the body of the indictment itself, upon the minutes of the court. But it was not contemplated by the legislature, and should not be held by the courts, that his failure to perform that duty shall vitiate the original indictment, and defeat a trial of the prisoner upon it, when the original indictment is itself actually in file in the case, with proper indorsement and signature upon it, as in the case before us. The abortive effort of the clerk to spread the whole indictment upon the minutes of the court should not be permitted to operate to the legal destruction of the instrument of which he attempts to make a copy. Therefore we think the omission disclosed by this record is not fatal to the indictment.

No decision of this court to which our attention has been called by the learned counsel of defendant, or which we have found by our own research, sustains a contrary view. It is true the conviction in the Chappel Case, 8 Yerg. 170, and Henry's Case, 4 Humph. 272, was set aside on account of an omission in the minutes of the court, notwithstanding the original indictment in each was on...