Bird v. State

52 S.W. 1076, 103 Tenn. 343

• Court: Tennessee Supreme Court
• Decided: October 18, 1899
• Status: Published

Opinion

Caedwele, J.

Cam Bird and William Brown are under conviction of murder in the second degree for killing Iienrv Gilbert. The indictment, as copied in the transcript, is fatally defective in that it is wanting in the indispensable indorsement, “A true bill,”' followed by the signature of the foreman of the grand jury. Code, Sec. 5093; M. & V., See. 5921; Shannon, Sec. 1055; Gunkle v. The State, 6 Bax., 626; The State v. Herron, 86 Tenn., 448; Canupp v. The State, 97 Tenn., 636.

Thus far the Attorney-general has been unable to cure the defect, as was done in the last named case by a second transcript supplying the omission. But, upon a suggestion of diminution and an order upon the clerk to send up a perfect record, it is made to appear that the original indictment cannot be found, having “been unintentionally lost or mislaid, or purposely concealed by an interested party.”

This fact is disclosed by the affidavit of the present Clerk of the lower Court, who further swears, “that ' he has examined said original indictment divers times, and that it was properly indorsed, CA true bill,’ and signed by B. Greer, foreman of the grand jury, to the best of ■ his knowledge and belief,” B. Greer also makes an affidavit, in which he says he was a member of the grand jury which found the indictment; that it had the words, “A true bill,” indorsed upon it, and that he, as foreman, signed that indorsement. William I. Davis, who was clerk when the indictment was found, gives his affidavit. He says that “he remembers the occasion of the grand jury returning into open Court the hill of indictment fin questionthat he examined said indictment, and it is his best recollection that same was indorsed, ‘A true hill,’ and said indorsement signed by R. G-reer, foreman of the grand jury.” He accounts for the failure to spread the indorsement upon the minutes of the Court by saying that the person writing for him at that time was “unaccustomed to making entries on the minutes.”

Though these affidavits are not parts of the record in a technical sense, and cannot serve the purpose of curing the defect in the indictment as here presented, they afford ample basis for the motion of the Attorney-general to remand the case to the lower Court, to the end that the indictment may be there supplied. That motion is allowed, and the case is remanded for that purpose.

It' is well to remark, in conclusion, that this embarrassméht could not have occurred if the requisite indorsement had been copied upon the minutes of the Court with the indictment, as the statute requires. Code, Sec. 4071, Subsec. 9; M. & V., Sec. 4854, Subsec. 9; Shannon, Sec. 5892, Subsec. 9. The full copy from the minutes in that case -would he sufficient for the purposes of this Court; and, indeed, such a copy is sufficient for the trial helow when the original indictment is lost. The object of the statute of enrollment was to meet the contingency of the loss of the original indictment. Brown v. The State, 7 Hum., 155; The State v. Herron, 86 Tenn., 448.

Remanded.