Upchurch v. State

^* Headnotes 1. Criminal Law, 17 C.J., Section 3449 (Anno); 2. Criminal Law, 16 C.J., Section 3106; 3. Criminal Law, 16 C.J., Section 3109; 4. Criminal Law, 16 C.J., Section 2296; 5. Criminal Law, 16 C.J., Section 3191; 6. Criminal Law, 17 C.J., Section 3719. The presentment charged a violation of the liquor laws by: (1) Selling within four miles of a schoolhouse; (2) tippling; (3) transporting.

The case was heard by Judge MORRISON and a jury August 18, 1924. The bill of exceptions duly filed shows that a motion for a new trial was entered and overruled and —

"Thereupon the court pronounced judgment. It is the judgment of the court that the defendant pay a fine of $100 and all the costs, taxes, and expense fees, and that he undergo confinement in the county jail or workhouse of Fentress county for a period of six months."

A motion in arrest of judgment was entered, overruled, and the bill of exceptions recites that appeal was prayed, and that the defendant was required to execute an appearance bond to the trial court pending the appeal. The appeal bond was executed. The minutes of the court do not show the verdict of the jury, the judgment of the court, or the action of Judge MORRISON overruling the motion for a new trial and in arrest.

Upon appeal the cause was remanded for correction of the record. When it came back the record included, over the signature and seal of the circuit court clerk:

(1) A motion in arrest, which is in fact a protest against judgment entered on the minutes after the adjournment of the August term, 1925. This motion is supported by affidavits stating that the correction of the record was made by the direction of the district attorney after Judge BUTTRAM had entered on his docket the notation, "judgment not pronounced by court, sentence to be pronounced," and after Judge BUTTRAM adjourned court and left for home.

(2) The order of Judge BUTTRAM entering verdict and judgmentnunc pro tunc, based upon the notation appearing on Judge MORRISON'S docket as of August term, 1924.

The first supplemental record referred to cannot be considered, because it is not verified by the presiding judge, and contradicts the record that bears his approval. We can only look to the authentic record.

In Justus v. State, 172 S.W. 279, 130 Tenn. 544, it was held proper to remand in criminal cases for the correction of the record under section 4598 of Shannon's Code. If by oversight the trial judge should not pronounce judgment, or by negligence of the clerk he should omit entry of the verdict and judgment, entry may be made at a subsequent term if there is matter of record to authorize it. Sharp v. State, 97 S.W. 812, 117 Tenn. 537;State v. Miller, 6 Baxt., 513.

The verdict entered under the caption of the August term, 1925, presided over by Judge BUTTRAM, successor to Judge MORRISON, who tried the case at the August term 1924, is as follows:

"Came the attorney-general to prosecute on behalf of the State; came also the defendant, Lum Upchurch, in his own proper person and by counsel, who, being arraigned and charged in the presentment for plea thereto, says he is not guilty as charged by violating temperance laws, and for his trial puts himself upon the country and the attorney doth the like; then came the following jury, to-wit: (1) Henry Reagan; (2) Tom Duncan; (3) G.W. Crabtree; (4) Amp. Poor; (5) George Smith; (6) Andy Whited; (7) John Holden; (8) Jess Winningham; (9) A.J. Beaty; (10) George Blesoe; (11) Havre Stephens; (12) Dave Franklin — all good and lawful men, citizens of Fentress county, householders and freeholders, who, being elected, impaneled, charged and sworn to try the issues joined between State of Tennessee, plaintiff, and Lum Upchurch, defendant, on a charge of violating temperance laws and a true verdict rendered according to law and evidence; who after hearing all the evidence and the argument of counsel, and the charge of the court retired to consider of their verdict, and, after due consideration of all the evidence in the case, they returned into open court and say upon their oaths that they find the issues in favor of the State and against the defendant, Lum Upchurch, and that he is guilty as charged; thereupon the jury was discharged."

This entry shows a general verdict upon a presentment of three counts which prescribe fines: (1) For selling within four miles of a schoolhouse, $100 to $500 (Shannon's Code, section 6795 [chapter 130, Acts of 1921]); (2) transporting, $100 to $500 (chapter 12, Acts of 1917 [chapter 130, Acts of 1921]); and (3) selling without license, $100 to $250 (Shannon's Code, section 6780 [chapter 130, Acts of 1921]).

The judgment copied herein from the bill of exceptions shows that the fine was fixed by Judge MORRISON at the August term, 1924, at $100. The amended record shows a recital to the effect that the notation on Judge MORRISON'S docket states that the jury found the defendant guilty of selling liquors within four miles of a schoolhouse and assessed his fine at $100 and that the court rendered judgment upon the verdict. The conclusion of this recital is, it is ordered by the court that said verdict and judgment pronounced by Judge MORRISON be entered now for then. Said verdict of the jury, rendered on the 18th of August, 1924, being in the words and figures following to-wit: Then follows the entry of the verdict, which has been copied in full. The verdict as entered shows that the jury did not assess the fine.

It has been held that article 6, section 14, of the constitution, does not apply where the legislature absolutely fixes the fine and leaves nothing to the discretion of the court or jury. France v. State, 6 Baxt., 478.

This conclusion rests upon the view that the constitution merely imposed a restriction upon the judicial power without limiting the power of the legislature to prescribe punishment by fine. Such a view recognizes the legislative power to do what the constitution expressly forbids; but that is beside the question.

It has never been supposed that judges could lay a fine exceeding $50 under statutes that prescribe a maximum and minimum, from and to which it would be necessary for the courts to exercise a discretion in fixing the amount.

In Metzner v. State, 157 S.W. 69, 128 Tenn. 45, it was held that power to assess a fine over $50 is expressly withheld from the judges and expressly conferred upon the jury, and trial judges are without jurisdiction to assess a fine exceeding $50.

In State v. White, 177 S.W. 478, 132 Tenn. 203, an act was sustained as valid which conferred jurisdiction on the court to assess fines from $10 to $100, because the term court included the jury. Otherwise the court said the act would violate the constitution.

It is said in Metzner v. State, 157 S.W. 69, 128 Tenn. 48, that France v. State, distinctly recognized that section 14, article 6, of the Constitution, prohibited a judge from imposing a fine exceeding $50 in cases that required the exercise of discretion, that jurisdiction to lay fines exceeding $50 is expressly conferred on the jury to the exclusion of the judge, and that jurisdiction cannot be conferred on the judge even by consent of the accused.

In Johnson v. State (Tenn.), 274 S.W. 12, the court said: "If the trial judge had fixed the fine at the minimum of $100 prescribed by the statute, State v. Green, 167 S.W. 867,129 Tenn. 619, holding the error not reversible, might have been in point, although such a practice, involving a violation of a constitutional provision is not approved. Errors affecting constitutional rights call for a reversal, and are not saved by chapter 32, Acts of 1911. Vinson v. State, 203 S.W. 338,140 Tenn. 70."

The jurisdiction or power to lay fines exceeding $50 is expressly withheld from the judges and expressly conferred upon the jury. The object of the limitation upon the power to lay fines was to prevent judges from imposing unreasonable fines, and to prevent confiscation of the citizen's substance under the guise of a statute applied by a judicial tribunal. This purpose is clearly expressed and requires no elaboration.

We cannot adhere to the result in State v. Green, 167 S.W. 867, 129 Tenn. 619, where the court refused to reverse because the jury could not reduce the fine below the minimum fixed by statute. The citizen is entitled to the benefit of the protection afforded by the constitution.

Reversed and remanded.