Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-03-01

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into court bill Of indictment against the de-
fendant for ripe, indorsed, true bill; George
Lipscemb. foreman Of the grand jury" which was
y order Of tse court spread upSn the Z RpHiss T1
attorney General for the llth Judicial Circuit. :
This Indictment contains two counts. The f<st
charges that Charles, ancgfe and then the
slave Of John Davidson. on tho first day Of July,
1855. in said county OF Aaury, fel9Diousy did
assault one Louisa Watson, Tree white woman,
and then and there did unlawfulfy and fslonious
" carnally know her. the said louisa Watson
The second count Il substantially cepy OF the
hrst. except that i eharycs that Charles David
tendant plead not guilty" on the sane day it
was returnsd into court. Afterwards, aud Al the
sueeeeling august term, 1850. Of said court, the
STATE OF fExNEssEE vs.. CHARLES DAyIBsoS-
IafictmsHt tor Rape This day came Robert L.
Caruthers, Attorney General PRO ;eal.. and moved
.he court TO withdraw the Indictment in this
canse for the purpose Of sending up before the
Grand jury an additional count to said indiet
meut, and the court ordered the same TO be done.
Then follows in the record what appears 20 be
an original Indictment. IN which II - chazScd
that Charles Dayidson, q free man Of color, on
crime Of rape. substantially as the same charged
in the indictment found at the preceding term Of
the court. This indictment is signed, Robert
L. Caruthers. Atty. Gen. pro ten, and indorsed.
additional count-state Charles Davidson.
Indictment for Rape. keber; Jamison. pro
seeutor-- It is also indorsed true eiiL Ma
thaniel I. Moore. foreman Of the Grand jury =
and on the same day. to wit ith Of September.
The following entry appears IN said cause.
This day came, well the Attorney General
as the defendants, ard the additional count IN
this indictment being read to and IN his hoaatng
he pleads thereto, that he il not guilty.
At the following January term. 1866. Of said
Court, the defendant was arraigned and tried
upon both indictments, the court regarding them
rs several counts IN the same Indictment Upon
the jury that upon the second count. which
charges the 0tfense 20 have been committed BY a
negro, no conviction could be had. consequently
the conviction was upon the first, or what Is de,
count in the indictment. and the question now l..
can the eonyiction be sustained as 70 the indiet-
briefly state. LIST. The record wholly fails to set
out the Peairu tdcias or 10 show that one was re-
tprred into court at thet term. "a: IL fails to
show that any Grand Jury was elected, ,imparueied.
sworn or charged at that time. or thai any one
was appointed foreman thereof. Sd. II fails to
show there was prosecutor. or that ans was
marked upon the indictment.
But il Is insisted these defects are all cured BY
the provisions Of section 5.2i2 Of the Code. We
40 90 n9t think 50. by thnt section Il = dselared
inal oaense is arraigned before court having iu-
risietion Ofthe matter, and pleads not guilty, and
Is tried upon the merits end convicted. he shall
not be entitled 20 new trial, or 70 an arrest Of
Judgment, or TO reversal Of The judEment for any
OF the following causes, aud nine different causes
are there stated. We cannot give 20 a statute of
this character a greater latitude Of construction
than is warranted by the plain and obvious import
Of the words Of the statute. Did the Legislature
mean thereby that q person who had been tried
upon the merits Of his ease upon plea Of not
guilty, AMI convicted, should not be entitled ton
new trial or arrest of Judgment because Of the ex-
tiOn2 We cannot believe the Legislature could
have intended or desired 10 effect change so rad
ica IN the criminal practice Of the State. or that
the language employed in that section will war
rant any such construction. The language l.. He
shall not be entitled" etc;, for any of the fol-
lowing causes" and must be construed as though
II Rad fgr Quf one NJ fha fnlfotrinr -
This we believe to be the obvious meaning of the
language employed. and consequently. u more
than one Of the causes mentioned exists, and such
causes would, but for the provisions Of that sec
ton, entitle the party to n trial. 10 ar
rest ofjudgment, or to areyersal Of the Judgment,
such party is entitled 20 the relief notwsthstand-
ing the provisions of that section. But il viii be
observed, all the causes for arrest OF Judgment
in this case. are not even enumerated IN that sec
that the clerk omitted 70 embody in the record
the reRira yacias. Ithad already been holden, by
this court, in the case OF Connor vs. the state 9Th
Yer. ls7, l&0. lil, citing Cromwell vs.. the State.
lst Yer. a6. that Il, was not necessary that the
rcnira yaei0s be spread upon the minutes of the
court IL was enough If the record showed the
and the selections Of the Grand jury, neither Of
which Is shown by this record. Finally the record
shows that the indictment found. at the May term,
1855. was, at subsequent term. Withdrawn; and il
wholly fails 20 show that Il was aglin return
ed into court, by the Grand Jury or otherwise.
An Indictment may pc Nltadrawn avn 9y Leave on NE
which II has been found end returned into court,
but when returned into court again. the record
such defect rs viii not be cured by the provis-
ions Of the 9TH clause OF section 52f3 o. the Code
before referred to, especially iii was indorsed
true bill. before II was withdrawn, and at q for
mer term Of the court. That Endorsement is by
the clause before mentioned after trial upon the
merits made evidence Of the fact that the indict-
ment had once been returned into court by the
Grand Jury. but it cannot be regarded as evi-
dence that i has been properly returned the sec
ond time, But we are not aware Of any anthoTi-
~ for Withdrawing an Indictment At term Of the
court subsequent TO the term at which Il has been
sound. and rec0mmitting Il 90 a different Grand
Jury for amendment BY the addition Of new
counts or otherwise, and believe none such ctn be
found
The bill of indictment, entitled Of the August
term. 1853. cannot be considered amendment
Of OF additional count TO ths indictment found a;
the preceding term, but Is new bill, and must
nave been prepared. acted upon and returned INTO
court. with all the formalites requires ~ law.
How Is thiss The record fails TO show sat any
veatra Jacos was returned into court, or that any
Grand jury was elected, impanneled. sworn or
TO show the appointment cf any foreman of the
Grand jury. or that said Indictment entered into
court. by the Grand JaTy or any one else, oE was
ever entered upon the minutes Of the court. IL
fails 10 show the appointment Of the Attorney
General pro teB', or the existence Of such facts
authorized the appointment.
The act Of 1852, which provided that the failure
Of the record 70 show that the person who signs
the indictment as Attorney General pro fsB;. was
transferred 70 the Code. but IN lie leu = the eighth
clause Of said section 52i2 was adopted and this
were the only one OF the defects or omissions emu
merated in that section to be found in this record
which, but for that section wonld have entitled
the defendant TO arrest Of the judgment In this
cuase he would not be entitled 70 an arrest Of the
section was not intended 10 withhold the relief IN
cases where all or more than one Of the causes
enumerated therein existed. IN the case Of Isham
declaring the opinion Of the court, said IL must
be presumed that the court would not permit any
one g enter s , 9Pon and disehs5E; the mport.as
some necessity and regular appointment" Butin
that case the Indictment preferred BY the reg
ular Attorney General, and an Attorney General
pro tenn. merely appe Ired in the prosecution Of the
ase. And IL must so be remembered that case
vas decided under the act Of 1852, which declared
The failure Of the record 10 show ths appointment
Df the pro ten. was not But In this cnse se
scarcely have room for aay such presumption, Tor
1n the same day upon which the Attorney General
he record shows that the Attorney General ap-
oeared in the cause. Bat i may be said. we
must presume. the record is in error. ard in
act Il was the Attorney General pro tenn.
10 this we answer we can enly aseer-
ain that there was in fact an Attorney General
'ro tess. by presumption--and when .presumpsions
men. can be pronounced upon either indictment.
4 the question 70 be determined BY as was the
acts Of the case o. presented In this record, We
would feel constrained 10 deny the application
md pronounce the sentence Of the law. but we're
ye 10 pronounce judgment upon this verdict, in
he Ian guage Of Judge Tully. in the case Of hi;e
rs. Tbs State. 9th Yer, We would feel that We
vere destroying the great and fixed principles IL
riminal practices necessary TO the protection
Il the liberty and life Of the citizen.
The judgment Of the Circuit Court win be
lhirmed, and the prisoner will be Kenanded 0the
all Of Maury county, % be kept In custody Until
le can be again indicted for the 0Gense. or dis
harged by the Circuit Court Of said county.
In the view We have taken Of this ease. II Il net
0w necessary 70 determine whether or not the
description Of the defendant In either court or in
ctment Is sufficiently eorrec. 70 authorize rs 70
r0nounce judgment upon the verdict. but we
hink, perhaps. the better practice would be 10
tate in the indictment biz present status. as well
3 the status he occupied nj the time the ohcnse y
Ieged 10 have besn committed.
HAwKfSs. Judge.
Attest; J. @. FR4zEE. Clerk.
EXPORTS AND 1MPoRTs.-Statistics at
he Treasury Department show that there
: no foundation fos the commonly received
pinion that there Is balance Of exports
yer imports in our foreign trade. The OF
cial vaiues Of the exports are currency
-