Glasgow v. State

68 Tenn. 485

• Court: Tennessee Supreme Court
• Decided: December 15, 1876
• Status: Published

Opinion

Turney, J.,

delivered the opinion of the court.

The prisoner was convicted of murder in the second degree, and has appealed to this court.

The objection that Hon. N. W. McConnell, Judge of the Fifth Judicial Circuit, and who had been employed to prosecute before his election, and before the finding of the indictment, was presiding when the indictment was found, and ordered it spread upon the minutes of the court, and was also presiding when the plea of not guilty was filed, is not well taken; • these were mere ministerial acts in nowise affecting the interests of the prisoner or the merits of the case. The law directs, in plain and unequivocal terms, what should be done; that this was done, was recited by the clerk on the minutes of the court, verified by the signature of the Judge — a mere formal act, awarding no process, deciding no question.

The omission to have spread the indictment upon the minutes would in no way have enlarged or diminished the rights of the accused.

The policy of the government in requiring a spreading upon the minutes, is to provide against the consequences of the loss, abstraction or destruction of the original.

A more serious objection arises upon the following entry of record: “ The regular judge, N. W. McConnell, being incompetent to try this cause, by reason . of his being counsel in the cause, it was agreed by both the counsel for the State and the prisoner himself, that S. F. Wilson, a member of this bar, shall preside as special judge in the trial of this cause. Thereupon, N. W. McConnell retired from the bench and S. F. Wilson took the-bench.”

Was this proceeding regular and according to the laws of the State? We think not.

There is no provision of the Constitution nor act of the Legislature authorizing or directing the constitution of a court, or the the supply of a vacancy for incompeteney or other cause, by the mode pursued in this case.

This was not an inferior court created by the Legislature, nor was it an election by the attorneys of the court, as allowed by ch. 78, sec. 1, of the act of 1870.

In the appointment or selection of special judges in criminal cases, the law authorizing it must be strictly pursued and observed. As already stated, there was no authority under the Constitution or by statute for the proceedings in this case.

The result is, the entire proceedings, verdict and judgment are nullities, leaving the case as if no trial whatever had been had. The prisoner was never in jeopardy, and is remanded for trial de novo.