Upchurch v. State
Decision Date | 27 March 1926 |
Citation | 281 S.W. 462,153 Tenn. 198 |
Parties | UPCHURCH v. STATE. |
Court | Tennessee Supreme Court |
Appeal from Circuit Court, Fentress County; W. H. Buttram, Judge.
Lum Upchurch was convicted of violating the liquor laws, and he appeals. Reversed and remanded.
W. A Garrett, of Jamestown, for appellant.
W. H Swiggart, Jr., Asst. Atty. Gen., for the State.
The presentment charged a violation of the liquor laws by: (1) Selling within four miles of a schoolhouse; (2) tippling; (3) transporting.
A motion in arrest of judgment was entered, overruled, and the bill of exceptions recites that appeal was prayed, and that the defendant was required to execute an appearance bond to the trial court pending the appeal. The appeal bond was executed. The minutes of the court do not show the verdict of the jury, the judgment of the court, or the action of Judge Morrison overruling the motion for a new trial and in arrest.
Upon appeal the cause was remanded for correction of the record. When it came back the record included, over the signature and seal of the circuit court clerk:
(1) A motion in arrest, which is in fact a protest against judgment entered on the minutes after the adjournment of the August term, 1925. This motion is supported by affidavits stating that the correction of the record was made by the direction of the district attorney after Judge Buttram had entered on his docket the notation, "judgment not pronounced by court, sentence to be pronounced," and after Judge Buttram adjourned court and left for home.
(2) The order of Judge Buttram entering verdict and judgment nunc pro tunc, based upon the notation appearing on Judge Morrison's docket as of August term, 1924.
The first supplemental record referred to cannot be considered because it is not verified by the presiding judge, and contradicts the record that bears his approval. We can only look to the authentic record.
In Justus v. State, 172 S.W. 279, 130 Tenn. 544, it was held proper to remand in criminal cases for the correction of the record under section 4598 of Shannon's Code. If by oversight the trial judge should not pronounce judgment, or by negligence of the clerk he should omit entry of the verdict and judgment, entry may be made at a subsequent term if there is matter of record to authorize it. Sharp v. State, 97 S.W. 812, 117 Tenn. 537; State v. Miller, 6 Baxt. 513.
The verdict entered under the caption of the August term, 1925, presided over by Judge Buttram, successor to Judge Morrison, who tried the case at the August term, 1924, is as follows:
This entry shows a general verdict upon a presentment of three counts which prescribe fines: (1) For selling within four miles of a schoolhouse, $100 to $500 (Shannon's Code, § 6795 [chapter 130, Acts of 1921]); (2) transporting, $100 to $500 (chapter 12, Acts of 1917 [chapter 130, Acts of 1921]); and (3) selling without license, $100 to $250 (Shannon's Code, § 6780 [chapter 130, Acts of 1921]).
The judgment copied herein from the bill of exceptions shows that the fine was fixed by Judge Morrison at the August term 1924, at $100. The amended record shows a recital to the effect that...
To continue reading
Request your trial-
City of Chattanooga v Davis
...to prevent confiscation of the citizen's substance under the guise of a statute applied by a judicial tribunal." Upchurch v. State, 153 Tenn. 198, 205, 281 S.W. 462, 464 (1926); see also State v. Martin, 940 S.W.2d 567, 570 (Tenn. 1997). Indeed, as this Court observed in Poindexter v. State......
-
Scopes v. State
... ... matter of course no different penalty can be inflicted, the ... trial judge exceeded his jurisdiction in levying this fine, ... and we are without power to correct his error. The judgment ... must accordingly be reversed. Upchurch v. State, 153 ... Tenn. 198, 281 S.W. 462 ... The ... court is informed that the plaintiff in error is no longer in ... the service of the state. We see nothing to be gained by ... prolonging the life of this bizarre case. On the contrary, we ... think the peace and ... ...
-
Town of Nolensville v. King, No. M2001-02572-COA-RM-CV (Tenn. App. 12/19/2003)
...of overzealous prosecutors or judges. Duncan v. Louisiana, 391 U.S. 145, 155-56, 88 S. Ct. 1444, 1451 (1968); Upchurch v. State, 153 Tenn. 198, 205, 281 S.W. 462, 464 (1926); THE FEDERALIST No. 83, at 543-44 (Alexander Hamilton) (Bicentennial ed. 1976); Akbil R. Amar, The Bill of Rights as ......
-
Barrett v. Tennessee Occupational Safety and Health Review Comm'n
...("Distrust of a powerful judiciary was said to have been the reason for ... the constitutional provision."); Upchurch v. State, 153 Tenn. 198, 281 S.W. 462, 464 (1925) ("The object of the limitation ... was to prevent judges from imposing unreasonable fines...."); Poindexter v. State, 137 T......