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Walker, William, Sarah C. Law and Niles Merriweather,
John B. Hill 18.....

...421 Walker us. Walker et als........

...571 Weig nd, Vary, rs. Malateska.......

...362 White, A. C., 28. Robert Buchanan....

... 33 White, B. F. & Wife, McFerrin & Menifee rs... .499 Wickersham, E, M., Trustee in the matter of..............3:33 Williams, J. E., rs. John C. Boughner.....

..187 Williams, H. B. S., et als., Wm. A. Bayliss vs., and E.

C. Greenlaw rs. H. B. S. Williams et als............410 Williams, Wm. D., 28. A. M. M. Storm et al..............203 Williams, James, us. Henry Adkins........

...615 Winters & Cross vs. The Heirs of L. P. C. Burford...328 Witt, Lucius, The State is.......

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1. FAILURE OF THE COUNTY COURT TO APPOINT A VENIRE. Th: Cir.

cuit Judge may designate th: pand, and t'e Shorif suinmon. The County Court failing to appoint a veri e for the succeeding Circuit Court, the Judge may designate, and direct the Sheriff to summon, a panel from which a Grand Jury may be selected. No venire is ne

cessary in such a case under our statutes. 2. Defendants cannot be tried on copies of indictment except under the statute.

A defendant cannot be tried upon a copy of an indictment, except in

cases provided by our Statutes, Code, sec. 5138. 3. Indictment sent to Criminal Court by Clerk. An indictment found in the

Circuit Court of Davidson County, may be transmitted to the Criminal
Court of said county, with all the papers in the cause, by the Clerk of

the Circuit Court, without any order of the Court. 4. Jurisdiction of the court trying defendants, must clearly appear. It is not

enough, in the trial of a criminal case, that from the record and all the citcumstances in the case, that there may be strong grounds of inference that the prisoner was tried and convicted by a proper tribunal. The record must show that he was tried in a court having jurisdiction of the case.

FROM DAVIDSON.

At the

Term, 1868, a jury of Davidson County found the defendant guilty of murder in the

Zack Boyd vs. The State.

first degree, with mitigating circumstances. The Court upon the recommendation of the jury, commuted the punishment to imprisonment for life; from which verdict and judgment of the Court, the prisoner appealed. Judge John Hugh Smith, presiding.

JOSEPH C. GUILD and BAXTER SMITH, for the plaintiff in error.

THOMAS H. COLDWELL, Attorney-General, for the State.

GEORGE ANDREWS, J., delivered the opinion of the Court.

manner.

The transcript of the record in this case, shows that, at the September Term, 1865, of the Circuit Court for Davidson County, (the County Court having failed to nominate a jury for that Term,) the Circuit Judge designated and directed the Sheriff to summon a panel of jurors, from which a Grand Jury was selected in the usual

No writ of venire facias appears to have been issued for this purpose, nor do we think such writ was necessary

under our statutes: Code, secs. 3993, 4016. But the Court, under these sections of the Code, should designate the jurors, and direct the Sheriff to summon them.

The record shows the return of the grand jury into Court, and the presentment of a bill of indictment against the defendant, of which a copy is given in the record. It then appears from the certificate of the Clerk of said Circuit Court, that he sent a copy of said indictment, together with a transcript of the other proceed

Zack Boyd vs. The State.

ings in said Circuit Court, to the Criminal Court for Davidson County. By the provisions of the Code, sec. 4251, the grand jury impaneled in the Circuit Court for Davidson County, may find bills of indictment, which, when found, are to be transferred immediately, with all the papers, by the clerk of that Court, to the Clerk of the Criminal Court for Davidson County, for trial.

It does not appear that the original indictment was ever transmitted to the Criminal Court. The only record of the indictment in this transcript, is a copy from the copy sent to the Criminal Court; and we must infer that the prisoner, if tried in the Criminal Court, was tried upon the copy of the indictment so sent. This was erroneous. The Code, secs. 5138–9, provides that indictments in cases of felony shall be entered in full on the minutes of the Court, and that a copy of the minutes shall be as good and valid as the originals, if at any time, the latter are lost, destroyed, misplaced, or eloined. A defendant cannot be tried upon a copy of the indictment except in the cases provided by statute; and there is nothing in this record to show that a contingency had arisen authorising the Court to proceed upon a copy only, nor any reason why the original was not sent from the Circuit to the Criminal Court.

It is objected that the record should show an order of the Circuit Court formally directing the clerk to transmit the papers and proceedings to the Criminal Court. We think, however, that, upon a proper construction of the statute, the papers must be transmitted by the clerk, and that no formal order of the Court was necessary.

This record is so singularly imperfect that it is im

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