Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-18
SUPREME COURT DECISIONS.
December Term - Nashville,
1870.
Joseph ID. Heisken, Att0rney-Gen-
eral and Reporter.

eral and Reporter.
No. 14l.
Lot s. Aderson plaintiff in error, vs.. The State
s, OPINION.
Three indictments appear to have beer
found against the plaintiff in error anC
one Thomas Mcbride, for the murder, in
the first degree, of James Spsrkman
two at the September Term, 1862 anC
the other at October Term, 1870, of the
Circuit Court of White County, and IL
does not appear, either from the bill of
exception, or any otherpart of the record,
upon which of the indictments the de.
PENDANT was tried. His trial occurred al
October term, 1870, when he was fC und
guilty of voluntary manslaughter, SEN
fenced to five years imprisonment in the
Penitentiary, and appealed to this court.
At the September Term, 1859, the plain
tiff in error was admitted to bail on the
first Indictment, and the case was de-
clared not bailable as TO his &C defendant
Mcbride, who was committed to prison.
At the same term, permission was granted
the Attomey-general to re commit the
indictment to the grand jury; but whether
it was actually sent back to said jury, or
again returned into court, does not appear
with certainty, though it may be inferred
that q new indictment was sent, as the first
indictment does not purport to have been
made under oath and ssigned"A f. Capps,
Atty. Gen. p. T., while the second in
dictment purports to have been made on
oath, and purports TO be signed ga. F.
Capps, Attorney General, pro tenn" The
first shows the names of the prosecutor
and witnesses, and shows also the finding
of the grand jury. The second contains
no endorsements whatever, aud does not
even show the finding of the grand jury
that it was true bill, and cannot prop
erly, be regarded as an Indictment. At
the May term, 1870, the defendants were
arraigned and charged upon "the indict-
ment'' snd pleaded not guilty. The
plaintiff in error entered motion, sup
ported by affidavit ''for a severance of
their trial. which, together with the
cause, was continued, Mcbride being re-
manded to Jail and the plaintiff in error
recognized. At the October term, 1870,
it appears that after the selection of the
grand jury two jurors were substituted in
the place of two others to act as grand
Jurors Sin considering bill of indict
ment preferred against Thomas Mcbride
and Lot Anderson" and bill of indict
ment, entitled of the October term, 1870,
with all proper endorsements thereon,
was returned into court against Thomas
Mcbride and the plaintiff in error for the
same homicide, signed Geo. Il. Morgan,
Attorney General 5th Circuit. " No &C
ton appears to have been taken on the
motion to sever, nor does any new motion
appear to have been made upon the new
Indictment. The record then contains
the following entrJ:
Estate ofTennesseel
VS., Indictment for murder.
Lot s. Anderson.
'Came the Attorney General who prose
cites for the STATE and the defendan. in
proper person, and the defendant being
arraigned and charged on the Indictment
says he is not guilty, and for his trial
puts himself upon the country, and
the Attorney General doth the like
Then came jury of good and lawful
men," ETC., who were elected, tried, and
sworn, the truth 10. speak on the issue
Joined, ETC., and were respitcd from rem
deriDg their verdict from day to day,
till Monday morning, upon which day
the record states that they "upon their
oaths, do say the defendant is guilty of
voluntary manslaughter, and that he be,
therefore, imprisoned in the State peni
Tertiary for five years, whereupon came
the defendant, by his attorney, and
moved the court for new trial and, also,
for arrest of judgment, which motion
was continued for further action of the
court" The transcript Of record does
not show, as it should, the different days
and dates of the meetings and adjourn
ments of the court during the progress of
the trial, but the record shows that the
motion was oVerruled and that the de-
PENDANT excepted and appealed, and it
may be inferred that this action was had
on day of the term subsequent TO the
day of the motion. Nor does the record
show that A. F. Capps, whose name is
signed IS Attorney General pro tenn, was
appointed as such under the CJde, Sec.
1862, or under Sec. 3l9.
1t is impossible from this transcript of
record to determine whether the plaintiff
in error was tried upon all, or either,
of the indictments contained in il.
The record does not contain any designa-
ton of the. indictment by numbers, or
any other evidence to enable us TO dis
criminate between the indictments. 1t
contains no indictment against the plain
tiff in error alone, and does not show
whether his motion for a severance was
acted upon, or what disp-s itiOn, if any,
was made of the cause as to his CODE
PENDANT. Ordinarily, where there is an
Indictment against two, and one of the
defendants is put upon his trial alone, it
may be presumed that the other defend
ant was not arrested, or that severance
was permitted by order of the court.
This presumption may well apply wheIe
there is but one indictment, or present.
ment contained in the record, but cannot
attach where there is s. much uncertainty
as in this case. Ncr do We perceive how
the defect could be remedied by any
statement, or certificate, from the ClsIk,
as such statement would be no part of the
record itself. 1t may be tha there are
two separate files of papers in the cout,
and that two or more indictments are
copied upon the minutes, but how could
such state of facts determine on which
Indictment the plaintiff in error wss &C.
tually triedl 1t is a familiar principle
that if, in criminal case, the evidence
shows, cInclusively, that one of the per-
sons committed an offence, but leaves it
uncertain which of them is actually gull
ty, neither can be convicted. And
how can it be sad, in view of the
Constitutional provision that 'tno free
man shall be put TO answer any
criminal charge, buC by presentment, in
dictment or impeachment, that the plain
tiff in error has been tried upon an indict-
ment, when the record shows that there
are more indictments against him than
one, but does not show upon which of
them he was arrslgned and trigd2 We do
not hold that it would be impossible for
the plaintiff in error, if the judgment
against him were affirmed, TO plead his
conviction in this case in bar of another
Indictment; for the plea is of q mixed Da-
ture, partly, of matter of record an .,
partly, of matter of fac; the first relat-
ing to the Indictment, and the second be-
ing the averment of the identity of the
offence and of the person as having been
formerly indicted. Sc l Wat. A. G..
Pl. 500, $40. Nor do we declare that it