White v. State

• Court: Tennessee Supreme Court
• Writing for the Court: SNEED
• Citation: White v. State, 50 Tenn. 338 (Tenn. 1871)
• Decision Date: 31 December 1871
• Parties: Dick White v. The State.

50 Tenn. 338

Dick White

v.The State.

Supreme Court of Tennessee.

December Term, 1871.

FROM MONTGOMERY.

Criminal Court, June Term, 1871. T. W. KING, J.

Jas. M. Quarles, for prisoner, cited: As to foreman of grand jury, 9 Yerg., 325;8 Yer., 166. Examination before J. P.: 2 Swan, 581. Confessions, 2 Cold., 223;5 Cold., 300.

Attorney General HEISKELL, for the State.

SNEED, J., delivered the opinion of the Court.

The prisoner appeals in error from a judgment of the Criminal Court of Montgomery, upon a conviction of larceny.

Upon the argument here, it is assigned as error, that the record shows the appointment of one Henry Lyle as foreman of the grand jury, whereas the indictment is indorsed as a true bill by J. B. Taylor, as foreman of the grand jury.

A supplemental transcript has, however, been produced, which shows that the said Henry Lyle did not serve, after his said appointment, and that the court had appointed the said J. B. Taylor, foreman, who, upon the finding, indorsed the indictment, as aforesaid.

It is assigned as error, also, that the venire from which the grand jury was selected, was issued by the judge of said court under his own signature, and not by the clerk under the order of the court. The fifth section of the act of 1870, c. 115, creating the Criminal Court of Montgomery, provides that the judge of said court shall, from time to time, appoint a grand jury and two petit juries to attend its regular and special sessions?? The eleventh section provides, that the judge of said court shall not only appoint the grand and petit juries for said court, and cause to be issued a writ of venire facias to the sheriff of said county, but shall have power at any time that it may be necessary, to cause to be summoned other persons to serve as jurors in said court.

The ordinary venire facias, according to the English practice, was a writ used commanding the presence in court of a party indicted of any petty misdemeanor. That kind of writ was process; but the venire facias juratores is not process in the sense of the Constitution of the State, which requires that all writs and other process shall run in the name of the State, and bear teste and be signed by the respective clerks. Original process, in the sense of the Constitution, is the means of compelling a defendant to appear in the court after suing out the original writ in civil, and after indictment in criminal cases. By final process, the judgments of courts are executed: 2 Bouv. L. D., 379. The only object of requiring process to be signed by the clerk, is, to give it the stamp of judicial authority. The Legislature would certainly not have the power to vary the mode of attesting process in its technical sense, as required by the Constitution; but all precepts from courts of justice, other than such process as is contemplated in the Constitution, is under the legislative control. The venire facias juratores being a mere designation of the persons appointed by the court to act as a jury, may as well be issued under the signature of the judge of the Criminal Court of Montgomery under ...