
    Major vs. The State.
    1. Criminal Law. Kvidefce. Judicial Knowledge. Kxemplif cation of lie-cords. Seal. Becords of courts in the same State, are proven by exemplification under the seal of .the Court and the attestation of the clerk. It seems, however, that a record sent from one county to another upon a change of venue, in a case of capital felony, attested by the clerk without the seal of the court, will be sufficient, as the courts will judicially recognize the public officers of the State under whose laws and organization they act, such as the chief executive, the heads of departments, judges of courts of general jurisdiction, attorneys for the State, sheriffs and clerks.
    2. Same. Same. Waiver. Same. In a case of capital'felony, where the venue was changed to another county, the clerk. in authenticating the record upon such change of venue, attested the same officially — but neglected to affix the seal of the court thereto, and the prisoner proceeded to trial without objection. This was a waiver of all right of subsequent exception to such irregularity, if indeed, it could be held a valid exception.
    
      8. Same. Change of venue. Act of 1839, eh. 9, §.2. JEntering transcript upon the minutes. The act of 1839, eh. 9, § 2, requiring the circuit court to which the venue in a criminal case has been changed, to have the transcript of the record entered in full upon the minutes, is merely directory, and the omission of the court to comply with it, would not vitiate its judgment. It is the duty of the court, however, to comply with its provisions — as the intention of the legislature was to preserve the record from casualty and loss.
    FROM SCOTT.
    The prisoner, a slave, was indicted in tbe circuit court of Scott county, for an assault and battery upon a free white woman, with intent to commit a rape. After an unsuccessful effort to empannel a jury in said county for his trial, the court changed the venue to the county of Morgan, and thence for a like reason to the county of Fentress. It seems that the clerk of the circuit" court of Scott, in transcribing the record for the circuit court of Morgan, omitted to certify the same under his official or other seal; but to this no exception was taken in the circuit court of Morgan, where the prisoner was arraigned for trial, and an ineffectual attempt made to get a jury. It was urged, also, that it did not appear of record, that the transcript from the circuit court of Scott had been spread upon the minutes of the circuit court of Morgan. To this, also, there was no objection made in the court below. The facts of the case are briefly these: Myra Looper, the female upon whom the assault was made, was a girl of sixteen years of age. She had known the prisoner well from her earliest years — -and had been much associated with him since her childhood. He had never, during her life before, attempted a rude approach toward ber, or uttered a coarse or obscene word in her presence. On tbe nigbt of tbe assault and battery committed upon her, she was spending tbe nigbt at the bouse of a neighbor, who, upon leaving home for a few days, had requested ber to sleep in the house and take care of three little children, who were left at home. After she, with the children, had retired to bed, she heard some one knock at the front door of the room- she occupied, and then quickly run around to the back door, where the knocking was continued. She arose in great alarm, and approached the back door, which she opened, and the person whom she supposed to be the prisoner, immediately ran off into a cornfield, some distance in rear of the house. Greatly alarmed and agitated, she at once waked the children and after dressing them, proceeded with them toward her own home. She had advanced some forty yards, after leaving the lot, when a person, who, by moonlight, resembled the prisoner, and whom she believed to be him, suddenly sprung upon her, from behind a tree, greatly disguised, with “his head dll bundled wp with rags, and looking like a ghost,” seized the child she carried in her arms, and threw it some distance from him, threw her upon her back, and while choking her with one hand, attempted to take up her clothes with the other. She called him by name, and begged him to desist. He did not reply, but after struggling with her about three minutes, and without accomplishing his purpose, he arose and ran off into the woods. ITer neck was severely bruised and scratched, and her dress much torn in the struggle. Early nest morning the place was visited by many of the neighbors, who found upon the ground appearances of a severe struggle, and also large foot-prints, made by some one with broad-toed shoes on, about the spot, and also in the direction of his alleged flight. The prisoner had been seen, about sunset of the day upon which the offence was committed, without shoes; he had been seen a few months before, however, occasionally wearing a pair of broad-toed shoes. Myra Looper, on returning home. that night, had related to her mother and brother substantially the same facts. At the October term, 1854, of the circuit court of Fentress county, before the Hon. H. L. DavidsoN, Judge, presiding by interchange, the prisoner was tried and convicted. He moved for a new trial, and in arrest of judgment, which being severally overruled, judgment of death was pronounced against him, from which he appealed in error to this court.
    'M. M. Bbien and Goodpastube, for the prisoner;
    cited Meigs’ Hi. Title Venue, § 1021. 5 Yerg., 443. Act of 1827, ch. 30, § 2 — 1839, ch. 9, § 2.
    MoHeNbv, and Sneed, Attobney Genebal, for the State;
    cited Act 1852, ch. 256. 5 Yerg., 444. Whart. Am. Or. L., 152. 2 Tenn. H. 40, 42. 9 Humph., 246. Best on Presumptions, 68. Whart. 269. Acts 1849, pamph., 284. 1 Swan 325. 1 Tenn. B,., 443. Act 1827, ch. 30, § 2 — 1839, ch. 9. 1 Ohitty’s BL, 160. 1 Swan, 466.
   TotteN, J.,

delivered tbe opinion of tbe court.

Tbe prisoner, a negro slave, was indicted in tbe circuit court of Scott, for an assault with intent to commit a rape on Myra Looper, a |free white woman. Tbe venue was changed to tbe county of Morgan, and then it was changed to tbe county of Fentress. At tbe October term of tbe circuit court of Fentress, tbe prisoner was tried and convicted of said offence. He moved for a new trial and in arrest, which motions were severally overruled, and judgment of death pronounced against him, whereon, be. appealed in error to this court.

Several errors are assigned in argument by tbe prisoner’s counsel.

First. That tbe record sent from tbe circuit court of Scott to tbe circuit court of Morgan, is not duly au-' tbenticated, there being no seal to the Clerk's certificate. It is true, that records of courts in tbe same State are proved by exemplifications under tbe seal of tbe court, and attestation of tbe clerk. And it is said that a record so proved, is deemed of higher credit than a sworn copy, as having passed under a more exact critical examination. Vail vs. Smith, 4 Cowen, 71. Peporn vs. Jenkins, 2 Johns. Cases, 118. 1 GreenLeaf Ev., 502.

Tbe Attorney General insists on tbe contrary, that tbe seal of tbe court was not necessary, because tbe court to which tbe record was sent, could notice judicially that tbe person who certified and attested tbe record, was tbe clerk of said court, and cases , in civil suits are referred to in support of this position. Stinson’s lessee vs. Russell, 2 Tenn. R., 42. Burton vs. Pettybone, 5 Yerg. E., 444. See also, Bennett vs. The State, M. & Yer., 133. 1 Greenlf. Ev. sec. 6.

It is certainly true that the courts will judicially re-cognise the public officers of the State, under whose laws and organization they act, as the chief executive, the heads of departments; .judges of courts of general jurisdiction; attorneys for the State, sheriffs, and we see no reason why the clerks of the courts should not also be included. 1 Greenlf. Ev., sec. 6. Rex vs. Jones, 2 Camp., 121 Bennett vs. The State, M. & Yerg., 133.

Be this, however, as it may, we observe that when the case came to the circuit coiu’t of Morgan, the prisoner was put on his trial — an attempt, which proved ineffectual, was made to procure a jury, and thereon the venue was changed to the county of Eentress. Now, in this proceeding, counsel for the prisoner made no objection to the verity of the record or to the manner of its authentication, and this we consider a waiver of the objection, if indeed it could be made at all.

Second. The error next assigned is, that the transcript of the record was not “entered in full upon the minutes” of the circuit court of Morgan, as required by the act of 1839, ch. 9, sec. 2, on a change of venue.

In Adams vs. The State, 1 Swan R., 466, the transcript was entered of record in the progress of procuring a jury, and the court say, “the directions of the statute ordering the transcript to be executed upon the records of the circuit court of the county to which the venue may be changed, was sufficiently complied with.” It was not, therefore, a thing necessary to be done to confer upon the court jurisdiction of the cause. Vid. State vs. Calhoun, 8 Hum. R.

We consider tbis statute to be merely directory, and that the omission of the court to comply with it, will not vitiate its judgment. The intention was to preserve the record from casualty and loss, and it is the duty of the court to comply with its provisions. But whether the record be copied on the minutes or not, is a matter of no interest or prejudice to the prisoner. We may observe further, that this construction conforms to the policy of recent legislation on practice in criminal cases. Yid. Acts, 1852, c. 256.

Third. Objection is made to the conviction on the merits of the case. We have carefully considered the case as set forth in the bill of exceptions, and certainly it contains much cogent proof tending to establish the guilt of the prisoner. But it seems to us, from what is stated in the record, that portions of the case, perhaps material, have been omitted. The record of the proof is brief, .imperfect, and in some respects obscure.

The identity of the prisoner with the person who committed the assault, is a point on which, as it seems to us, more full -and satisfactory proof may be adduced.

We are not content to affirm the conviction in the' present state of the case, and remand it with the prisoner for ‘ another trial.

Judgment reversed and cause remanded.

McKiNNEY, J.,

concurred in the judgment ordering a' new trial upon the facts; but dissented upon the second point — being of opinion that the Act of 1889, requiring the transcript to be entered in fall upon the minutes of the court to which the venue is changed, is imperative upon the court, and that the omission to. do- so constitutes error.  