Summary
In McClain v. State, 186 Tenn. 401, 210 S.W.2d 680, 681 (1948), the Court stated that absent "a minute entry showing that the Trial Judge approved the verdict... and sentenced the Defendant, the conviction of guilt is incomplete."
Summary of this case from State v. DixonOpinion
Opinion filed May 3, 1948.
1. CRIMINAL LAW.
If, upon a remand of certiorari, the trial judge is still in office, he has authority, though a term has intervened, to sentence defendant and sign minutes containing final judgment and judgment overruling motion for new trial.
2. CRIMINAL LAW.
Trial court speaks only through its minutes, and, without a minute entry showing that trial judge approved verdict and sentenced defendant, conviction of guilt is incomplete.
3. CRIMINAL LAW.
Only authority who may approve verdict and overrule motion for new trial by signing the minutes is the judge who heard the evidence and actually tried the case.
4. CRIMINAL LAW. Judges.
In prosecution for violation of age of consent, nunc pro tunc order sentencing defendant and overruling his motion for new trial entered by new judge after term, based on authority of former trial judge's written memorandum, was invalid in absence of minute entry by former judge notwithstanding statute permitting nunc pro tunc correction of clerical errors in judgments (Code 1932, sec. 8721).
FROM McNAIRYError to Circuit Court of McNairy County. — HON. MARK WALKER, Judge.
Freeman McClain was convicted of violation of the age of consent, and he brings error. Reversed and remanded.
BEN O. WEEKS, of Knoxville, MILLARD E. LEE, of Selmer, and JOHN J. CALDWELL, of Savannah, for plaintiff in error.
NAT TIPTON and ALLISON B. HUMPHREYS, JR., Assistant Attorneys General, for the State.
Defendant appealed from conviction of violation of the age of consent and sentence to three years in the pentitentiary.
When at the Jackson Term 1947, the case was set, suggestion of diminution was made and we granted certiorari.
On the remand from the supplementary transcript filed in accordance with the procedendo, it appears that no final judgment containing sentence and no judgment overruling motion for new trial were entered on the minutes during the tenure of office of the Judge before whom the case was tried.
However, on the remand, a memorandum in the handwriting of that Judge was introduced at a hearing before his successor, and from that memorandum it appears that final judgment, sentence and judgment overruling motion for new trial were in fact pronounced, though not entered on the minutes and not signed by the Trial Judge. The successor Judge thereupon, on the authority of the memorandum of the former Judge, entered an order nunc pro tunc sentencing Defendant to the penitentiary and overruling a second motion for new trial filed by Defendant, preserving exceptions to these actions of the successor Judge.
We are constrained to sustain the assignments of error and reverse and remand the case.
If upon the remand, on certiorari, the Trial Judge had been still in office, there is no doubt that he had authority, though a term had intervened, to sentence Defendant and sign minutes containing final judgment and judgment overruling motion for new trial. Sharp v. State, 117 Tenn. 537, 97 S.W. 812; Spencer v. State, 125 Tenn. 64, 140 S.W. 597, 38 L.R.A., N.S., 680.
The Trial Court speaks only through its minutes. Mullen v. State, 164 Tenn. 523, 528, 51 S.W.2d 497; Jackson v. Jarratt, 165 Tenn. 76, 52 S.W.2d 137.
Without a minute entry showing that the Trial Judge approved the verdict ( Curran v. State, 157 Tenn. 7, 4 S.W.2d 957) and sentenced the Defendant, the conviction of guilt is incomplete. Spencer v. State, 125 Tenn. 64, 69, 70, 140 S.W. 597, 38 L.R.A., N.S., 680.
The only authority to approve the verdict and overrule the first motion for new trial by signing the minutes, was the Judge who heard the evidence and actually tried the case. Dennis v. State, 137 Tenn. 543, 195 S.W. 162; O'Quinn v. Baptist Memorial Hospital, 182 Tenn. 558, 188 S.W.2d 346.
We decline to apply Code, sec. 8721 on account of the lack of any minute entry, and we distinguish Payne v. State, 154 Tenn. 47, 289 S.W. 526, because the Judge who entered the nunc pro tunc order was not the Judge who tried the case. The supplemental transcript here is like the "first supplemental record" which Judge Cook refused to consider in Upchurch v. State, 153 Tenn. 198, 201, 281 S.W. 462.
Reversed and remanded.
All concur.