
    Patrick Moore v. The State.
    Becobd. Unsigned minutes. An entry made by a clerk, but never signed by the presiding judge, by reason of his sickness and death, showing the discharge of a jury in a capital case by consent of the prisoner, is sufficient evidence of the fact of discharge by consent.
    EROM DAVIDSON.
    Criminal Court, September Term, 1871. Thos. N. Frazier, J.
    Bate & Williams, for the prisoner,
    cited the authorities generally, on jeopardy. As to the unsigned minutes, they cited the Code, 4040, 4101; Hite v. State, 9 Ter., 380; Ch. Cr. L., 459. On the clerk’s power as to records: McConnell v. Read, M. & Y., 224; Hunt v. Lyle, 6 Yer., 417; Miller v. Holt, 1 Tenn., 87; Craig v. Vance, lb., 141; Burton v. JPettibone, 4 Yer., 443; Bass et ais. v. State, MS., Nashv., Dec. Term, 1870; Allen v. State, M. & Y., 606. Verity of record, Garrick v. Armstrong, 2 Cold., 266. Correction of judgments, Farris v. Kilpatrick, 1 Hum., 379; Crutchfield v. Stewart, 1 Hum., 381; Williams v. Ten-penny, 11 Hum., 176; State v. Disney, 5 Sneed, 598. Suggested that it was the duty of the successor of Judge Smith to sign the minutes. On correction of errors in records, cited: Act of 1856, c. 70, s. 1; Code, 2877, 2878; Elliot v. Cochran, 1 Cold., 389; Ocoee Bank v. Hughes, 2 Cold., 52. Parol evidence inadmissible to change a record: Woodyard’s heirs v. Threlkell, 1 Marsh., 10; Cole v. Hank, 3 Monroe, 209; 3 Dev., 423; 4 Wend., 534; Hickman v. McCurdy, J. J. Marshall, 555; Harrison v. State, 10 Yer., 542; Johnson v. Johnson, 2 Heis., 521. They quoted from Bass v. State, opinion by Judge Nelson, where, after quoting the section of the Code to the effect that the minutes of the court shall be read each morning in open court, and signed by ¿he judge, Judge Nelson says: “This has been the law of the State, at least, since the Act of 1808, c. 49, s. 20; Car. & Nic., 205. The objects of reading and signing the minutes in open court are to enable the attorneys, suitors and the public, to know what has been done during the term; to prevent improper entries from being made upon the record; to correct mistakes before the minutes are signed; and to have the official sanction of the judge as to the correctness of the entries of each day’s proceedings. It never was contemplated that the minutes should be signed at any other time or place than during the term and in the court-house, in public view, or where at least the people may attend at pleasure. A signature at chambers, when none, or a part only, of the counsel are present, is liable to the grossest abuses. A signature in another town or place, after the court has adjourned, and when business transactions may have been forgotten, often creates tbe danger or suspicion of surreptitious entries, and is derogatory to that verity wbiclr has been uniformly ascribed to records. Moreover, the event of the death of the judge, before the period fixed for the signature, would create the utmost perplexity and embarrassment in regard to the unauthentieated proceedings, if his signature is necessary, as we are inclined to think it is, under the statute, to give validity to the entries upon the. minutes.”
    Attorney General Heiskell, for the State,
    insisted that the statute is directory. Similar statutes have been so held in Alabama, Georgia, Ohio and Missouri: Bartlett ~v. Laird, 2 Ala., (N. S.,) 162; The Justices v. House, 20 Ga., 833; State v. Osborne, 7 Ohio, 214; Platte Go. v. Marshall, 10 Miss., 347. See, also, Hooper v. Ashta-bula, Wright, 708; 1 New Jersey, 337; Sprague v. Lith-erberry, 4 McLean, 442.
    Parol evidence is admissible to supply a lost record: Farmers’ Bank v. Gibson, 6 Barr., 57; Com. Dig., Evidence A., 3; Thurston v. Slatford, 1 Salk., 284; Norvill v. McHenry, 1 Man., (Mich.,) 227; Ordinary v. Wallace, 1 Bich., 507; Young v. Baker, T. U. P. Charlton, 276.
    Where a clerk dies before record made up, it is regarded as lost: Longly v. Vose, 27 Me., 185; Prudin v. Alden, 23 Pick., 184; Evans v. Thomas, 2 Strange, 833; Dayrell v. Bridge, lb., 1264. So, where no record is made: Mayov. Whitson, 2 Jones’ Law, 231: Harris v. McRae, 4 Ired., 81.
    Court may, by inherent power, supply a record: Atkinson y. Keel, 25 Ala., 552; McLendon v. Jones, 8 Ala., 300, 301; Boswell v. Stewart, 11 Ala., 629; Deshong v. Cain, 1 Duval, (Ky.,) 310.
    Matters of record may be explained by parol: Car-mony v. Hoober, 5 Barr., 309; Wash., Alex. & Geo’tn St. Packet Co. v. Sickles, 24 How., 336.
    It is tbe duty of the successor to sign the unsigned minutes: Life & Ins. Co. of N. Y. v. Wilson’s Heirs, 8 Pet., 291. This he must do as a form, not with knowledge of what he authenticates, but on the faith of the Clerk’s official act. By the common law, the minutes were merely memoranda, from which records were made up after the term: Waghorst v. State, 7 Md., 450; 2 East P. C., 518; 1 Ch. Cr. L., 642; Lead v. Sutton, 2 Cush., 115, 123; Weed v. Weed, 25 Conn., 337; Wash., A. & G. St. P. Co. v. Sickles, 24 How., 333. Clerk’s entries records, until extended: Pierce v. Goodrich, 47 Me., 176. See, also, Cromwell v. Bank of Pittsburg, 2 'Wall. Jr., 569; Fowler v. Bird, 2 Hemp., 213; Frink v. Frink, 24 N. H., Taylor v. Com’l, 44 Penn., (8 Wright,) 131.
    Insisted that matters occurring in Court can be proved by parol, where they were matters of which no record was kept, as of the matters involved in a trial, as well as where the record was lost, showing that the record was only evidence of the facts, and was not itself the fact which it proved; the judgment or other judicial act. That in this case, the fact of the discharge of the jury by consent, existed; and if this was not a good record for want of signature, the evidence of the Clerk, the next best, was competent to prove the fact, and it was fully proved in the record.
   EeeeMAN, J.,

delivered the opinion of a majority of the Court.

The prisoner was indicted at April Term of the Criminal Court of Davidson county, for the murder of John Perry.

On the 27th of June, 1870, he was arraigned, pleaded not guilty, and was put upon his trial before a jury, which trial continued for several days. After the argument of the case, the jury were charged by the Court, and proceeded to consider their verdict. On the 1st day of July, an entry is made by the Court, that the jury -were again respited until the next day at 9 o’clock. On Saturday, the 2d day of July, an entry appears, to the effect “that the jury returned into open court and resumed the consideration of the case;” and “the jurors aforesaid, upon their oaths aforesaid, do say, that they can not agree in a verdict.” It is, therefore, considered by the Court, with the assent of the prisoner, the defendant, that the jury be discharged and a mistrial be entered in the said cause; and thereupon the prisoner was remanded to jail.

It also appears that the two entries on the 1st and 2d days of July, 1870, above referred to, were never signed by the presiding judge, Hon. John Hugh Smith, nor by any successor, judge of that court. It is known that the Judge was never on the bench after the 2d day of July, but was taken sick on Monday after, and died on Thursday.

At September Term, 1871, the prisoner was tried by a jury, and a verdict of voluntary manslaughter rendered by tlie jury, and he sentenced to five years in the Penitentiary.

Before this, however, the defendant, by his counsel, moved for ' his discharge on the ground that he had been once in jeopardy, by being put on his trial before the former jury, and then interposed a special plea of “once in jeopardy/’ which plea was found against the prisoner; and now his counsel insist on a reversal here, on the ground that this plea ought to have been sustained on the facts, and the prisoner discharged.

It may be conceded that the prisoner, having been put on his trial, with a lawful jury, his jeopardy commenced, and that the Court could not, without the interposition of some of the well defined causes, as settled by our various adjudications on this question, discharge the jury without entitling the prisoner to be discharged from further prosecution. It is not denied that the jury may be discharged by consent of the prisoner. This brings us to the precise question presented in the case. No objection is taken to the record showing the fact that the prisoner was put on trial before a proper jury, before Hon. John Hugh Smith, and that the jury, after argument, were charged by the Court, and proceeded to consider of their verdict; but it is insisted that the entry on the 1st day of July, 1870, and the one on the 2d day of July, showing that the jury could not agree, and were discharged by the assent of the prisoner, can not be looked to as evidence of the fact of such discharge; and therefore, the only fact shown by the proper character of evidence, is, that the prisoner was once placed in jeopardy by having his case submitted to this jury, and that no legal evidence appears of his consent to the discharge of the jury from the rendition of a verdict.

We have not time, at this late day of the term, to go into a consideration or critical examination of the authorities presented on this question. We can only give the conclusions at which the Court has arrived. By section 4040, sub-see. 4, of the Code, it is made the official duty of the Clerks of our courts “to keep a well-bound book, in which shall be entered the minutes of each day’s proceedings, during the session of the court, in the order in which they are made.” By section 4101 of the Code, under title, “Judicial Tribunals and their Relative Rights,” it is provided: “The minutes of the court shall be read each morning in open court, and signed by the Judge.”

Assuming that this last provision is for the purpose of authentication, and that the record thereby has its highest verification, in fact imports absolute verity, as any other record of a court, the question is, whether, in a case like the present, on failure to receive this last authentication 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’s proceeding in his record book, shall go for nothing, and that suoh minutes, so kept by him, can not be looked to as evidence of the discharge of the jury, by consent of the prisoner.

We hold, that in such case, these minutes, so kept by the clerk, may be looked to as evidence of the proceedings of the court. In support of this view, we present the question in this form: Suppose a juryman should suddenly die during the trial, or any one of the several cases of the like kind, known to the atithorities, should occur; it would be sufficient ground for discharge of the jury, without discharging the prisoner. These facts would appear on the minutes of the court, made up by the clerk, and authenticated by the signature of the judge. Certainly it will not be denied that the sudden death of the judge, during pendency of the trial, would, if properly shown, be cause for discharge of the jury, as a matter of necessity. But, admitting this cause to be a good one, on the principle maintained, such a fact could never be made to appear, as the death of the judge would forever preclude his signing .the minutes of the day’s proceedings. The reasons for ithe discharge of the jury, are entered on the minutes .of the court by the clerk as part of the day’s proceedings,; and the death of the judge before signing them, preventing the last act of authentication, we then would be compelled to fall back on the next best evidence of the facts, that is, the official act of a sworn officer, in the performance of the duty imposed on him by law. If we reject this, we must hold, that in every case, where a judge may die, under like circumstances, it shall work a discharge of the prisoner on trial, as it is utterly impossible that the minutes of that day’s proceedings shall be signed by the judge having a knowledge -of the facts. A signature bj a successor, we may remark, though it might formally .authenticate the proceedings, or entries made by the clerk, would, in fact, be no additional evidence of their verity; as he, having no knowledge of the facts of the case, could only sign bis name to facts stated by the clerk, and it would but be the clerk’s statement of facts after all.

As to the case in 2 Heiskell, 521, we only say, that it did not present the question presented in this case, nor was the question considered; as the failure to sign the minutes was not caused by the act of God, as in this case. We must, in this case, either look to the entries made by the clerk in the performance of his official1 duty, and treat them as evidence of what occurred in his court, or else must hold, contrary to the universal current of decision, that the act of an officer, in the performance of his duty, in which he is required to make an entry in writing, shall have no force and effect whatever; and that the act of this clerk shall not, for some cause, which we are unable to see, be held equal to the return of a sheriff or constable on an execution. We do not think sound principle requires this, or that it will either be in furtherance of a sound public policy, or tend to elevate the administration of our criminal law; nor can we, after most careful thought, see that the rights of parties charged with crime, and on trial for the same, will be in the slightest degree endangered. The case of the death of a judge under circumstances like this, is certainly an occurrence not often to be anticipated, even in that indefinite period that may be called “the life of a State;” and the principle we lay down is alone applicable, and the decision made on that precise state of facts, and no other.

We can have no kind of question, that the prisoner did give his assent, in open court, to the discharge of the jury; and therefore, as the fact appears by the entry of the sworn officer whose duty it was to make that entry on his record book, we feel no hesitancy in saying, he has been deprived of no right, when he has been refused a discharge by the court, by reason of a fact to which he has given his assent in legal form, notwithstanding the record evidence tendered, may lack the last authentication, by the signature of the judge then presiding. The failure to so authenticate, was prevented by the act of God, and thus is satisfactorily accounted for.

The maxim, that “the act of God is so treated by the law as to affect no one injuriously;” or, as stated by Mr. Broome, in Legal Maxims, 211, “it would be unreasonable that those things which are inevitable by the act of God, which no industry can avoid, no policy prevent, should be construed to the prejudice of any person in whom there has been no laches,” is appropriate to this case, and must be held equally applicable to the State as private individuals; and that other maxim, “that to which a person assents, is not esteemed in law an injury,” would estop the prisoner from complaint of wrong, by the discharge of the jury.

We therefore hold, there was no error in refusing to discharge the prisoner, on the ground of his having been once in jeopardy.

As to the facts of the case, no other error of law being insisted on, we need only say, that they well warrant the finding of the jury; and we affirm the judgment of the court below.

NicholsoN, C. J., Deaderick, and Turney, concurred. McFarlaND, absent.

SNEED, J.,

delivered tbe following dissenting opinion;

The prisoner appeals in error from the judgment of the Criminal Court of the County of Davidson, upon a conviction of voluntary manslaughter. He demands his discharge' upon the ground that he has been twice put in jeopardy of life or limb, for the same offense. He was indicted in March, 1869, for the murder of John Perry, and was arraigned on the 27th of June, 1870, before Judge Smith, the then presiding judge of said court, and thereupon entered the plea of not guilty, when a jury was regularly impaneled and sworn to try the issue then and there joined between the prisoner and the State of Tennessee. The testimony was heard, and the argument of counsel also, and the court charged the jury, and they retired to consider of their verdict.

These successive stages are shown by the minutes of the court to have transpired between the 27th of June and the 30th of the same month, both inclusive, and this much of the proceeding became a record by the regular signature of the presiding judge to the minutes of the court. No subsequent entry showing the progress of the cause, or the final result of the trial, is authenticated by the signature of the judge; nor does the signature of the judge before whom the prisoner was tried, appear again to the minutes during said term, or ever after the said 30th day of June, 1870.

The indictment is a valid one upon its face. At the September Term, 1871, before Judge Frazier, the successor in office of Judge Smith, the prisoner was again brought to the bar of the court to be again put upon his trial. He filed a special plea of once in jeopardy, and demanded his discharge upon the ground that he had before been arraigned and tried for the same offense. Upon this plea the State took issue, and under the order of the court it was submitted to a jury, whose verdict was in favor of the State. And here it may be observed, that, as the issue presented a mixed question of law and fact, I see no objection to this mode of proceeding. The court thereupon proceeded to try the prisoner upon the indictment. He again, by his counsel, demanded his discharge, and declined to plead again to the indictment. The court directed the plea of not guilty to be entered, and the trial proceeded to a conviction of the prisoner.

Upon the trial of the special plea of once in jeopardy, the' State introduced as a witness the clerk of the court, the prisoner objecting. The clerk stated that he was the clerk of the said court in June and July, 1870, when the prisoner was tried before Judge Smith, and that he is still clerk; that he made the entries showing the progress of said trial; that the prisoner, Patrick Moore, now at the bar, is the identical person arraigned and tried in June and July, 1870, before Judge Smith; and that the indictment and the offense are the same. He further stated that there are no other minutes in relation to said trial, which are signed by the then presiding judge. The Attorney-General asked the witness to read all other entries on the minutes in relation to the trial of the prisoner, begun on the 27th of June, 1870, and not signed by the then presiding Judge. The prisoner objected, the objection was overruled, and the clerk thereupon proceeded to read the entries made on the first of July, as follows:

State v. Patrick Moore, } Murder.

Came again the Attorney-G-eneral of the State, and the jury heretofore impaneled in this cause, came here into open court, and not having agreed upon a verdict, were again respited, and placed in charge of Jos. L. Bryant, an officer of this court, who being duly sworn according to law to take charge of said jury, and keep them separate and apart from all other citizens whatsoever, until their return into court at 9 o’clock to-morrow morning.

And the said witness then read the entry of July 2, 1870, as follows:

The State v. Patrick Moore, } Murder.

Came again the Attorney-General for the State, and the defendant in custody of the Sheriff, and the jury heretofore impaneled in this cause, returned here into open court and renewed the consideration of the same; and the jurors aforesaid, upon their oaths aforesaid, do say that they can not agree in a verdict. It is therefore considered by the court, with the consent of the prisoner, that the jury be discharged, and a mistrial entered in said cause; and thereupon the defendant was remanded to jail.

The witness further stated that he was the custodian of the records of said court, and that the entries were made by him as the orders were given by the court; that the facts related actually transpired; but that the said minutes of the first and second of July were never read over, examined or signed by the Judge; that Friday and Saturday were the said first and second days of July, and that the judge sickened on the following Monday after^ and died on the following Thursday.

The witness was then asked by the Attorney-General to detail the proceedings had in said cause on the said first and second days of July, which he was permitted to do, over the objections of the prisoner. He stated that the court was duly opened Friday, and considerable business transacted; and the jury who had the prisoner’s case in charge not agreeing, was respited until Saturday morning; all of which proceedings were entered by him on the minutes that night.

On Saturday morning the judge appeared, the court was opened, but the minutes of the previous day were not read, approved or signed by the Judge. After some time, the jury came into the court, were called over, and said they could not agree, and that there was no chance for them ever to agree; upon which the judge asked the prisoner, or his counsel, if he would consent to a discharge of the jury, when one of his counsel arose and said that he consented to a discharge of the jury. Whether he conferred with the prisoner upon the subject, or not, the witness does not know. The court thereupon ordered the jury to be discharged, and remanded the prisoner to jail.

The court was soon after adjourned until the following Monday morning. The proceedings of Saturday were also entered by the witness upon the minutes, but they were never read, approved or signed by the judge, who, as already stated, was taken sick on Monday, and died on the following Thursday. To all this testimony the prisoner objected.

Upon this character of testimony as to a judicial proceeding involving the life of a citizen, the prisoner was denied the benefit of his plea that he had been once before in jeopardy upon this identical charge; and by these memoranda of the clerk, and by his confirmatory oral testimony, it was permitted to be shown that the prisoner consented to the discharge of the jury which had been charged y/ith his deliverance. In my opinion, such a fact could only be shown by a record made up and perfected by all the solemn sanctions which the law has thrown around the record of a judicial proceeding involving the life or liberty of a citizen. The minutes of a court are the memoranda of what takes place in court, made by authority of the court. From these minutes the record is afterwards made up: 2 Bouv. L. D., 183. To be valid, a judicial judgment must be given by a competent judge or court, at a time and place appointed by law, and in the form the law requires. To give certainty, authority and verity to the judgments of the courts of record in this .State, it is the imperative mandate of the law that the minutes of the court shall be read each morning in open court, and signed by the judge: Code, 4101. A single line of legislation could have given verity to a record by the attestation of the clerk, but it has not been done. And in the construction of this statute, this court has held, upon mere questions of property involving the titles of men to chattels and to land, that the minutes of a court purporting to give its orders and action and decrees, which is not sanctioned and approved by the signature of the judge presiding, is a nullity, and proves nothing: Johnson v. Johnson, 2 Heis., 521. I could not hold otherwise, when human life or liberty is imperilled. If this be so in regard to the written memoranda of judicial proceedings unsanctioned by the signature of the only person who, under the law, can impart to them the verity and dignity of a record, what a leap in the dark it would seem, to permit the acts and orders and decrees of a judicial tribunal which are not lost or destroyed, but merely void or incomplete, to be established by parol. We are not permitted to explain private written contracts by parol, and a judicial proceeding should not be degraded to a lower dignity than a deed or a contract. I take it to be a principle as old as the common law, that an imperfect record can not'be assisted by evidence dehors the same: Otey v. Rogers, 4 Ired., 589; Wade v. Odeneal, 3 Dev., 423; 1 Wash. C. C., 330, unless in the cases specified by statute where clerical mistakes and omissions from inadvertence may be corrected by the court whose judgments are thus found to be defective. It is unnecessary to advert to the abuses, the evils and confusion which would inevitably follow the establishment of such a precedent. I hold, therefore, that there is absolutely no evidence before us that the prisoner ever consented, either by himself or his counsel, to the discharge of the jury, which had been lawfully and regularly charged with his deliverance upon a valid indictment on the 27th of June, 1870.

It remains to be considered, then, what was the effect of that proceeding upon the rights of the prisoner in his subsequent arraignment, in September, 1871. He stands upon the constitutional guaranty, that no person shall, for the same offense, be twice put in jeopardy of life or limb:” Const. Tenn., Art. 1, s. 10. When a jury, lawfully impanelled and sworn, are charged' with his fate, his jeopardy begins. That jury may be lawfully discharged by the prisoner’s consent, or for any of the causes recognized and approved in the law, and this shall be no legal impediment to his subsequent trial. But such a lawful discharge must be made to appear.

The jeopardy of a prisoner is when a trial jury is sworn and impanelled to try his case upon a valid indictment, and such jury has been charged with his deliverance: 1 Bailey, 655; 7 Black., 191; 1 Gray, 490; 8 Serg. & R., 586; 1 Bish. Cr. L., § 660. And so jealous are the courts in protecting this right, that it has been held, and has been accepted everywhere as a principle of criminal jurisprudence in this country, that where the legal bar has once attached, the government can not avoid it by varying the form of a charge in a new accusation. If the first indictment or information were such that the accused might have been convicted under it, on proof of the facts by which the second is sought to be sustained, then the jeopardy which attached upon the first must constitute a protection against a trial on the second: 1 Green., 360; 12 Pick., 504; 17 Wend., 386; 19 Ohio, 423; 7 Conn., 414; Cooley C. L., 338:

We have in this case, then, the valid and undoubted record evidence that Patrick Moore, the prisoner at the bar, was put upon his trial before a competent court, upon a valid indictment, and that a jury, lawfully im-panelled and sworn, was charged with his deliverance, on the 27th June, 1870; but we have no evidence that said jury was ever lawfully discharged. His jeopardy, therefore, in the sense of the constitution and the law, was complete and perfect. We have the testimony before us, also, that this same person was brought to trial upon the same indictment, at the September Term, 1871, and that he then and there demanded his discharge upon the authority of the constitutional guaranty that no person shall for the same offense, be twice put in jeopardy of life or limb — a guaranty which, under the organic law of this country, can not be denied to the peasant or the prince, to the lofty or the lowly. Upon such a case, whatever his crimes may be, the law adjudges him to be free. The view of this question presented by the majority of the Court, has much force in it; but, in my judgment, the reasons are stronger on the other side. The discharge of a jury is a judicial act; the consent of the prisoner to such discharge enters into and becomes a necessary part of such a judicial act, and must be -matter of record, and a judicial record must prove itself. With the greatest respect and deference to the opinions of my learned brothers of the bench, I can not assent to a doctrine that seems to permit the proof of a solemn judicial act of a court of record, otherwise than by a judicial record. To the argument based upon the abuses and inconveniences which might follow the adoption of my view of this question, it would seem sufficient to reply, “noliomus mutare leges Anglice.”

I am of opinion that the prisoner is entitled to his discharge.  