Year: 1872

From the Nashville Banner, 10th inst.l


Patrick Moore was arraigned in the


Criminal Court of Davidson county, on


the 9th of June, 1870, for the murder


of John Perry. The trial lasted several


days, and the case was given to the jury,


who were unable to agree, whereupon
they were discharged, mistrial was en-
tered and the prisoner was remanded to
Jail. Before the minutes recording these
facts could be signed, the Judge of the
court, John Hugh Smith, died. At the
September term, 1871, Moore was again
tried, verdict of voluntary manslaugh-
ter was rendered by the jury, and he
was sentenced to FIVE years in the peni-
tentiary. During this trial, however,
the prisoners counsel moved that he be
discharged, on the ground that he had
once been in jeopardy by the former
trial. This plea was disallowed and the
case was appealed to the Supreme Court.


In delivering the opinion Of the Court
yesterday, Justice Freeman said:


The question is, whether in case
like the present, on failure to receive
this last authorization, by the death Of
the Judge, the act of the other officer,
the clerk, whose duty it is to enter the
minutes Of each day IS proceedings on the
record book, shall go for nothing, and
that such minutes, so kept by him, can
not be looked to as evidence of the dis
charge of the jury by consent of the
prisoner.


1--WE hold that, in such case, these
minutes, so kept by the clerk, may be
looked to as an evidence of the proceed
ings of the court In support Of this
view, we present the question in this
form: Suppose juryman should sud
denly die during the trial, or any one Of
the several causes of like kind known to
the authorities should occur, it would be
sufficient ground for discharge of the
jury, without discharging the prisoner.
The facts would appear on the minutes
of the court, made up by the clerk and
authenticated by signature Of the Judge
Certainly it will not be denied that the
sudden death of the Judge, during the
pendency Of the trial, would, If properly
shown, be cause for discharge of the jury,
as matter of necessity. But, admitting
this cause to be good one-on the princi-
pie mentioned-such fact could never be
made to appear, as the death of the Judge
would forever preclude his signing the
minutes OF the day proceedings. The
reasons, then, for discharge of the jury
are entered in the minutes of the court,
by the clerk as part of the day proceed
ings, and the death of the Judge before
signing them prevents this last act of au-
Al n hn.
PEELED to fall back on the next best evil
dence of the facts-that is, the official
act of sworn officer in the performance |
OF duty imposed upon him by law. If
we reject this, we must hold that in every |
case where Judge may die, under the |
it shall not work dis |
charge of the prisoner on trial, as it is
utterly impossible that the minutes of
the days proceedings shall be signed by
the Judge having knowledge of the
facts. A signature by successor, we
may remark, though it might formally
the proceedings or entries
made by the clerk, would in fact be no
evidence additional of their verify, as he,
having no knowledge of the facts Of the
case, could only sign his name to the
acts stated by the clerk, and it would
De but the clerks statement of the facts,
lfter all


ave can have no kind of question
hat the prisoner did give his assent in
,pen court, to the discharge of the jury;
md, therefore, as the fact appears by
he entry of the sworn officer, whose
luty it was to make the entry on his
ecord book, we feel no hesitancy in say
ny that he has been deprived of no
light, when he has been refused a dis
.harge by the court, by reason of fact
O which he has given his assent in legal
orm, notwithstanding the record of evil
Ience rendered may lark the last au-