Temple v. State

• Decision Date: 05 April 1913
• Citation: 155 S.W. 388
• Parties: TEMPLE v. STATE.
• Court: Tennessee Supreme Court

155 S.W. 388

TEMPLE v.STATE.

Supreme Court of Tennessee.

April 5, 1913.

Error to Criminal Court, Shelby County; Jesse Edgington, Judge.

Leo Temple was convicted of crime, and he petitions for writs of error and supersedeas. Dismissed.

Edward Mosely, of Nashville, for plaintiff in error.Assistant Attorney General Faw, for the State.

LANSDEN, J.

Leo Temple was indicted at the May term, 1912, of the criminal court of Shelby county for an unlawful, violent, and felonious assault and battery on the person of Clara Queen, a female under the age of 10 years, with intent to carnally know and abuse her, and was convicted on September 20th following.Motions for a new trial and in arrest of judgment were made and overruled by the trial court, and the plaintiff in error was sentenced to death by hanging.

An appeal was prayed and granted to this court sitting at Jackson, and 15 days were allowed the plaintiff in error in which to make and file his bill of exceptions; but afterwards, on October 12, 1912, the following order was entered: "Comes the defendant in open court and with the consent of the court withdraws his appeal heretofore made and entered in his behalf, and submits to the judgment of the court heretofore entered."Since then, and at this term, a petition for writs of error and supersedeas has been presented on behalf of plaintiff in error, and we have before us nothing but the technical record for review.Errors are assigned, assailing the sufficiency of this record upon numerous points.It is said that the certified copy of the record fails to show a caption of the court, and this is true; that the record fails to show the name of the judge who tried the case in the court below, and this is true; that the record fails to show that the clerk embodied in the record the venire facias, and this is true; that the indictment was signed by William R. Harrison, pro tem.Attorney General of criminal court of Shelby county, and the record fails to show any order of the court appointing him Attorney General pro tem., and this is true; that the record shows that the indictment was signed by William R. Harrison, Attorney General pro tem., and it otherwise appears that the defendant was prosecuted by the Attorney General, and this is true.

None of the foregoing deficiencies in the transcript presented to us is sufficient cause for a new trial.

It is expressly enacted at section 7217 of Shannon's Code that if a person indicted or presented for a criminal offense is arraigned before a court having jurisdiction of the matter and pleads not guilty, and is tried upon the merits and convicted, a new trial shall not be granted or judgment arrested, or a reversal of the judgment had in this court: (1) Because the clerk of the court omitted to file or enter his plea of record; (2) because the Attorney General or clerk or grand jury omitted to mark a prosecutor upon the indictment; (3) because the clerk omitted to show in the record sent to the Supreme Court that there was a prosecutor; (4) because of the defect in making out the caption of the record; (5) because of an omission of any caption to the record sent up to the Supreme Court; (6) because the clerk omitted to embody in the record the venire facias; (7) because he omitted to enter upon the minutes of the court that the grand jury returned the indictment into open court, if the indictment shows upon its back that it was found a "true bill"; (8) because the indictment was drawn by an Attorney General pro tempore and the clerk omitted to enter his appointment upon the minutes of the court.

It was held by this court in State v. Davidson, 2 Cold. 196, andThurston v. State, 3 Cold. 117, that if more than one of the causes of those enumerated exist in the same record, the statute did not control; but these cases were expressly overruled in the later case of King v. State, 15 Lea, 51, and this latter case has been uniformly followed since.

The foregoing Code provisions, under the authority of King v. State, su...