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merely took a recess, so that the charge, Fish, 1 G. Greene, 406, 48 Am. Dec. 390; could be delivered without the necessity of Coleman v. Henderson, Litt. Sel. Cas. 171, a formal opening of the court on Sunday. 12 Am. Dec. 290.

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(February 11, 1915.)

PPEAL by defendant from a judgment of the Criminal Court for Putnam County, convicting him of murder in the first degree. Reversed.

The facts are stated in the opinion. Messrs. V. E. Bockman and B. G. Adcock, for appellant:

Any judicial act, judgment, or procedure done on Sunday is absolutely void.

Styles v. Harrison, 99 Tenn. 128, 63 Am. St. Rep. 824, 41 S. W. 333; Breyer v. State, 102 Tenn. 110, 50 S. W. 769; Davis v.

the decision in Moss v. STATE, that a jury may not be charged on Sunday, but the question has not often been directly decided. Charging the jury is a judicial, as distinguished from a ministerial, act, and on principle ought not to be possible on a nonjudicial day.

In Arthur v. Mosby, 2 Bibb, 589, a new trial was ordered where the cause coming on for trial on the last day of the term, some of the evidence was heard, the verdict of the jury made up and returned into court, and the judgment of the court rendered after 12 o'clock on Saturday night, as the proceedings were not authorized by law, either as being beyond the term, or on a day not judicial.

In State v. Green, 37 Mo. 466, the court reversed a conviction of murder because the reading of the instructions to the jury by the court had not been concluded, nor the cause finally submitted to the jury, until the clock in the court room showed ten minutes after 12, midnight, on Saturday, when the court took a recess, without adjournment, until 2 o'clock on Sunday morning, and then received the verdict and discharged the jury. The statute provided that "no court shall be open or transact business on Sunday, unless it be for the purpose of receiving a verdict or discharging a jury, and every adjournment of a court on Saturday shall always be to some other day than Sunday, except such adjournment as shall be made after a cause has been committed to the jury." The court said: "There can be no doubt that, under this statute, the sitting of the court, the giving of instructions, and the submitting of the cause to the jury, were prohibited, whether they were strictly judicial or merely ministerial acts. We have felt some hesitation about reversing a conviction otherwise legal, on so small a matter as ten minutes' time. The maxim De minimis non curat lex cannot be applied to such a case. The rule must be defined; the line must be drawn somewhere. The day must be held to begin either at mid

Messrs. W. Bryant, J. A. Carlin, P. C. Crowley, and John Gothard also for appellant.

Mr. William H. Swiggart, Jr., Assistant Attorney General, for the State:

A verdict rendered on Sunday is valid, and a judgment may be lawfully rendered thereon.

Baxter v. People, 8 Ill. 368; Ball v. United States, 140 U. S. 131, 35 L. ed. 383, 11 Sup. Ct. Rep. 761; Rawlins v. State, 124 Ga. 31, 52 S. E. 1; Bales v. Com. 11 Ky. L. Rep. 297, 11 S. W. 470; Simmons v. State, 129 Ala. 41, 29 So. 929; Sanford v. State, 143 Ala. 78, 39 So. 370; Moore night or at sunrise; and both principle and authority concur in fixing it at midnight. If the hour can be exceeded by ten minutes, it may by an hour or twelve hours. Such irregularities and void proceedings have been held to make the final judgment erroneous, and in many similar cases new trials have been granted."

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A conviction was reversed for submitting the cause to the jury on Sunday where a trial for petit larceny was commenced on Saturday and submitted to the jury at 2 A. M. Sunday morning, who rendered a verdict of guilty in about one hour, and on Monday morning judgment was pronounced on the verdict. The statute provided that "no court shall be open, or transact business, on Sunday, unless it be for the purpose of receiving a verdict or discharging a jury; and every adjournment of a court on Sautrday shall always be some other day than Sunday, except such adjournment as may be made after a cause has been committed to a jury. But this section shall not prevent the exercise of the jurisdiction of any magistrate, when it shall be necessary in criminal cases, to preserve the peace, or to arrest the offender.' The particular question discussed in the case was the overruling of a contention by the public prosecutor that the statute had regard only to the solar or artificial day as distinguished from a day of 24 hours. Pulling v. People, 8 Barb. 384 (referred to in the opinion of Leonard, C., in Allen v. Godfrey, 44 N. Y. 433, as holding the verdict and judgment bad "for the reason that the cause was submitted on Sunday").

But it has been held that if a prisoner appeals from a judgment in a case where the jury was charged and he was convicted and sentenced on Sunday, he cannot claim that the court has lost jurisdiction and that he has obtained immunity, but a new trial will be ordered. People v. Luhrs, 79 Hun, 415, 29 N. Y. Supp. 789, where a trial commenced on Saturday, before a court of special sessions, continued into Sunday morn

of H. S. Gill. He was tried and found guilty of murder in the first degree, with mitigating circumstances, at the May term, 1914, and judgment was rendered that he be confined in the state penitentiary during his natural life. He made a motion for a new trial in the lower court, which was overruled, and he has appealed to this court and assigned errors.

v. State, 49 Tex. Crim. Rep. 499, 96 S. W. | the criminal court of Putnam county, at 321; State v. Keatine, 130 La. 434, 39 the September term, 1910, for the murder L.R.A. (N.S.) 844, 58 So. 139; Burrage v. State, 101 Miss. 598, 58 So. 217; Stone v. United States, 167 U. S. 178, 42 L. ed. 127, 17 Sup. Ct. Rep. 778; State v. Baker, 67 Wash. 595, 122 Pac. 335; Gholston v. Gholston, 31 Ga. 625; People v. Odell, 1 Dak. 197, 46 N. W. 601; Jones v. Johnson, 61 Ind. 257; State v. Green, 37 Mo. 466; Knoxville v. Knoxville Water Co. 107 Tenn. 647, 61 L.R.A. 888, 64 S. W. 1075; Swann v. Swann, 21 Fed. 299; Moseley v. Vanhooser, 6 Lea, 286, 40 Am. Rep. 37.

We deem it unnecessary to notice any of the errors assigned, except one based upon the following facts: The minutes of the court for Saturday, May 23d, recite that the

Neil, Ch. J., delivered the opinion of the hearing of testimony was concluded on that court:

The plaintiff in error was indicted in ing, when the jury was charged and the defendant convicted and sentenced.

It may well be doubted whether the Georgia court would now approve the passage in the opinion in Gholston v. Gholston, 31 Ga. 625, quoted in Moss v. STATE, and in the Gholston Case a conviction was reversed on other grounds.

day, and the arguments of counsel continued until 11:30 P. M., and that no formal ad

There are other cases where the jury retired before Sunday to consider their verdict, and where they later and on Sunday received further instructions.

Such a course was approved in People v. Odell, 1 Dak. 197, 46 N. W. 601, referred to in Moss v. STATE, also in the obiter remarks in Jones v. Johnson, 61 Ind. 257, quoted in Moss v. STATE. See also Stone v. United States, infra. But the court was of a contrary opinion in Davis v. Fish, 1 G. Greene, 406, 48 Am. Dec. 387, where the jury retired to deliberate late on Saturday night, and early on Sunday morning came into court and asked for and obtained further instructions in the absence of the plaintiff and his counsel, and the verdict was received and judgment entered on Sunday. The court said, inter alia: "In this case the final charge to the jury, their verdict, and the judgment, were given and rendered upon the Sabbath day; and being, in legal contemplation, judicial acts, we can but consider them utterly void." (But it was also considered that, as the term ended at midnight on Saturday, all subsequent proceedings were coram non judice and void.)

In North Carolina, however, it seems that it may not necessarily be erroneous to charge the jury on Sunday. In State v. McGimsey, 80 N. C. 377, 30 Am. Rep. 90, where the jury on a murder trial retired to consider their verdict between 12 and 1 o'clock on Sunday morning, and later received further instructions and were discharged sometime later on Sunday, not having agreed, the appellate court discharged the prisoner from custody as immune from further trial, it not appearing that the discharge of the jury was necessary; that is to say, it not appearing that the court was sufficiently satisfied that they could not agree. The court, however, stated: "We think there is nothing in the objection raised that the court was held on Sunday for the purposes of this trial, under the circumstances. State v. Ricketts, 74 N. C. 187." In the Ricketts Case In Roberts v. Bower, 5 Hun, 558, where the court, in holding it proper to con- the jury, having retired on Saturday, came sent to have the verdict in a perjury case into court on Sunday, asking further intaken by the clerk on Sunday said: "Instructions, which were given without obthis state in general every act may lawfully be done on Sunday which may lawfully be done on any other day, unless there be some act of the legislature forbidding it to be done on that day. . . . We do not say how it would be (if we may suppose such an improbable case) if a court should undertake to sit on Sunday for the trial of actions, civil or criminal, or for giving judgments, when no extreme necessity for it existed. As long practice makes the law of a court, probably its proceedings in such cases would be deemed irregular."

jection, it appears from the brief report "that the charge to the jury was like any other unauthorized communication, and that the parties, by consenting to it, waived any objections thereto."

The question was not presented in a simple form, if at all, in the civil case of Stone v. United States, 12 C. C. A. 451, 29 U. S. App. 32, 64 Fed. 667. There the jury, having retired to deliberate on Saturday, were sent for on Sunday, on the court's own motion, who submitted to them certain questions in the presence of counsel, informing the jury that the answers to these questions should be given in accordance with previous

Further instructions where case was sub- instructions about the measure of damages,

mitted to jury before Sunday.

and that the questions were submitted "in

journment of court was taken, but the was delivered to them in writing, and said

sheriff was directed to bring the jury into court on the next morning. Following this an entry appears, as of date May 24th, reciting that the court met pursuant to adjournment; present and presiding the Honorable J. M. Gardenhire, Judge, etc. The entry then proceeds as follows: "No formal proclamation of the opening of court was made by the sheriff, the court not formally having adjourned, but having taken a recess until this time for the purpose of the court's delivering his charge to the jury in the case of State of Tennessee v. McConnell Moss, charged with murder."

It is then recited, under the proper style of the case, that the attorney general was present for the state, and also the defendant in his own proper person and by counsel, and that the jury also came, giving the names of the members of the jury, etc., "and said jury having heard all of the evidence on both sides of the case, and having heard the arguments of counsel, the court proceeded to read his charge to the jury, which

the same way that the whole case was submitted to you, to be answered if you can," stating that he desired an answer to the special questions "for the use of the government in other litigation." In affirming the judgment entered upon a verdict for the United States, the circuit court of appeals said: "It appears that no exceptions were taken on Sunday to any of the transactions that occurred on that day. It is questionable if the proceedings which took place could be fairly classed as instructions to the jury, but if they could be so considered, and the court had any power to give instructions on Sunday, it was the duty of the defendant to have then and there excepted, if he had any objections thereto. It is evident that the defendant was not prejudiced by anything that transpired in court on that day. All that was said had reference to the finding of a special verdict, which could not have affected the result as to the general verdict. The remark of the court that the answers were required for use in other cases might very properly have been omitted, but we are unable to see how it could have had any tendency to influence the jury against the defendant. The whole case was fairly and impartially submitted by the court in its general charge given to the jury on the day before, and the court, on Sunday, declined to give any further instructions, and informed the jury that the answers to the special questions should be given in accordance with the previous instructions. It was left optional with the jury to answer these questions, although the court requested them to do so if they could." The affirmance of this case in the Supreme Court (167 U. S. 178, 42 L. ed. 127, 17 Sup. Ct. Rep. 778) does not seem to deal with the question

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jury, having received the charge of the court in writing, retired, in charge of their sworn officers aforesaid, to consider of their ver dict, carrying with them said written charge of the court and indictment in the case. This charge was delivered at 11 o'clock a. M., Sunday, May 24, 1914."

The minutes on Monday, the following day, recite in regular form that the jury having heard all the evidence and the arguments of counsel, and having received the charge of the court, returned their verdict into open court.

The question presented is whether the trial judge could lawfully hold court and charge the jury on Sunday.

In a long experience on the bench the writer of this opinion can recall no instance in which a similar attempt was ever before made in this state by any of our trial judges, nor can any other member of the court recall such instance. Some authorities have been submitted to us from other jurisdictions in which such a practice has further than to hold that the general verdiet was not a nullity by reason of its being received or recorded on Sunday.

Writs of inquiry and inquests. The execution of a writ of inquiry on a Sunday is void. Hoyle v. Cornwallis, 1 Strange, 387.

menced before the sheriff and jury on SaturThe execution of a writ of inquiry comday evening, wherein the jury retired to consider their verdict about 1 A. M. Sunday morning, and returned their verdict about three hours later, is an execution of the writ on Sunday within the meaning of the statute forbidding the service or execution on Sunday of any writ, and the inquisition must be set aside. Butler v. Kelsey, 15 Johns. 177, where there were other grounds also requiring the setting aside of the inquisition.

There is not an entire agreement whether a coroner's inquest may be held on Sunday.

In Re Cooper, 5 Ont. Pr. Rep. 256, it was held that a coroner's inquest held on Sunday was void, and prisoners held on the coroner's warrant of commitment, made the same day, were discharged on habeas corpus, as there was nothing to support the warrant.

A coroner's "inquisition, being judicial, must not be conducted on a Sunday." 1 Burn's J. P. 28th ed. p. 928: quoted in Reg. v. Cavelier, 11 Manitoba L. Rep. 333. Atl. 547, it was held that "an inquest held But in Blaney v. State, 74 Md. 153, 21 by a coroner's jury, and the commitment by a coroner or magistrate of an accused to jail, are rather ministerial than judicial acts. They are certainly not of that judicial character which precludes their being performed on Sunday." But this was not necessary to the decision. B. B. B.

been measurably sanctioned under special | ciently show its substance: "It appears from circumstances or by statute, but only two cases have been brought to our attention where such an attempt has been made in the absence of a statute. One of these cases is Gholston v. Gholston, 31 Ga. 625, 638. A brief excerpt from the opinion in this case will show all that appears on the subject. Said the court: "The court was actually livering the charge to the jury on Saturday night, when the hour of 12 o'clock arrived, and the Sabbath day, according to our computation of time, had commenced before he concluded. This may have been inadvertence, but, under all the circumstances, was certainly no very grave error. Whatever judicial action was had on the Sabbath day was either inadvertent or inevitable. We think what transpired on the Sabbath was not sufficient to vitiate the verdict, holding, at the same time, that all courts should abstain from the transaction of ordinary business on that holy day."

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the record that the jury was charged and retired to consider their verdict about 9 o'clock on Saturday night, and that at 3 o'clock on Sabbath afternoon, the jury not having agreed, the judge, on his own motion, had them brought in and delivered to them further instructions, by way of corde-recting a supposed error in his former charge, and this is assigned as error. It is claimed that, this being a judicial act, cannot be done on the Sabbath. The Sabbath being dies non juridicus, it is doubtless the well-settled general rule that no judicial acts can be done on that day. But the jury being out, they are not permitted to separate until they have agreed upon their verdict, or are discharged by the court from further consideration of the case. The Code of Criminal Procedure provides (§ 388) that while the jury are absent the court may adjourn from time to time as to other business, but it is nevertheless deemed open for every purpose connected with the cause submitted to them until a verdict is rendered or the jury discharged.""

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The next instance is Jones v. Johnson, 61 Ind. 257, 264. The point in decision was that the trial judge committed error in entering the jury room on Sunday and in structing the jury in the absence of the parties and of their counsel. After quoting a passage from McCorkle v. State, 14 Ind. 39, to the effect that the law permitted a verdict to be returned on Sunday, and as an incident authorized the court to sit on that date to receive any motion or order touching it, and to discharge the jury after rendering it, continued: "We may add, as a further incident to this authority to return a verdict on Sunday, that in our opinion, if it should appear to be necessary to the speedy formation and return of a verdict, and the jury should desire to be informed on that day as to any part of the testimony, or as to any point of law arising in the case, the court may sit on Sunday for the purpose of giving the jury the information required, 'in the presence of, or after notice to, the parties or their attorneys.'"

It is perceived that what was said in this case upon the subject of instructing the jury was dictum, since the ground of reversal, and the only point under examination, was the action of the trial judge in going into the jury room and giving additional instructions, in the absence of and without notice to the parties or their counsel.

In the Georgia case the matter was treated as merely an inadvertence, and, if not so, as a necessity.

We are referred to the case of People v. Odell, 1 Dak. 197, 203, 46 N. W. 601, 603. A short excerpt from that case will suffi

So it was held that under the statute the court was to be considered open for such case.

In the absence of a statute authorizing it, there can be no doubt that it is unlawful for a court to do any judicial act on Sunday. The leading case is Swann v. Broome, 3 Burr. 1595-year 1764. In this case Lord Mansfield reviewed the whole subject. He said that anciently the court sat on Sundays; that the ancient Christians practised this for two reasons: One was in opposition to the heathen, who were superstitious about the observation of days and times, conceiving some to be ominous and unlucky and others lucky; that therefore the Christians laid aside all observance of days; that a second reason they had was that by keeping their own courts always open they prevented Christian suitors from resorting to heathen courts. But he further observed that in the year 517 a canon was made forbidding the adjudication of causes on Sunday; that this canon was ratified in the time of Theodosius, who fortified it with an imperial constitution. He referred to other subsequent canons adding other holy days. These canons, it seems, were received and adopted by the Saxon kings of England, and were all confirmed by William the Conqueror and Henry II. and so became part of the common law of England. In the course of time, other days were disregarded as nonjudicial, but Sunday retained. It was held that, while merely ministerial acts might be done on Sunday, no judicial act could be performed. For example, the rendering of a judgment or the awarding of

a process, since these acts could not be | general terms, because we derive it through supposed to be done but whilst the court our mother state, North Carolina: "Our was actually sitting. Said his lordship: ancestors brought, upon their emigration, "As to the observation 'that the courts of the common law with them as their rule of justice have never been restrained by act action, and still retained it where apof Parliament from sitting on Sundays, and plicable; so it was declared upon the first that the Stat. 29 Car. II., chap. 7, does not settlement of North Carolina, in the Act extend to giving judgments, it was needless of 1715, chap. 31, § 6. So, also, after the to restrain them from it by act of Parlia- Revolution in 1778 it is again declared 'that ment. They could not do it, by the canons all such parts of the common law, as were anciently received and made a part of the heretofore in force and use within this terlaw of the land. And therefore the restrain- ritory, as are not destructive of, repugnant ing them from it by act of Parliament to, or inconsistent with, the freedom or inwould have been merely nugatory. dependence of this state, and the form of government therein established, and which have not been otherwise provided for, in the whole or in part, not abrogated, repealed, or expired, are hereby declared to be in full force in the state.' Act of April, 1778, chap. 5, § 2." Fields v. State, 1 Yerg. 158, 159; Porter v. State, Mart. & Y. 226, 227, and cases cited on latter page; Tisdale v. Munroe, 3 Yerg. 320, 323, 324; State v. Miller, 11 Lea, 620, 624-629; Smith v. North Memphis Sav. Bank, 115 Tenn. 12, 17-19, 89 S. W. 392, 393.

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In Mackalley's Case, in 9 Coke, 65 b, it was objected that Sunday 'is not dies juridicus, and that therefore no arrest can be made in it, and every one ought to abstain from secular affairs upon that day.' But it was answered and resolved 'that no judicial act ought to be done in that day, but ministerial acts may be lawfully executed in the Sunday.'

To the same effect is 4 Bacon's Abridgment, page 640: "By the common law dies dominicus non est juridicus. No plea therefore shall be holden quindena Pascha, because it is always the Lord's day; but it shall be crastino quindena Pascha. Fitzh. Nat. Brev. 17, f. So, upon a fine levied with proclamations according to the statute of 4 Hen. VII., chap. 24, if any of the proclamations are made on the Lord's day, all the proclamations are void, for the justices may not sit upon that day, being a day exempt from business by the common law for the solemnity of it, to the intent that all people may apply themselves that day to prayer and serving God. Finch's Law, 7."

In Wharton's Legal Maxims, the maxim Dies dominicus non est juridicus is correctly rendered: "The Lord's day (Sunday) is not juridical, or a day for legal proceed ings." He adds: "None of the courts of law or equity can sit on this day."

So it has been held that no indictment can be found on Sunday, and that every indictment should have a caption showing the day on which it was found, so that it might appear that it was not found on Sunday. 8 Bacon, Abr. 701; Dakin's Case, 2 Wms' Saund. 290, 1 Vent. 107, 2 Keble, 731. Nor can a writ of inquiry be executed on Sunday. 4 Bacon, Abr. 640; Cornwallis v. Hoyle, Fortescue, 373, 1 Strange, 387.

The chancery court was never adjourned, standing open at all times, but only for the issuing of writs, in its function of officina brevium. Choyce Cas. Ch. 85; 2 Bacon Abr. 681; 4 Edw. IV. 2; 4 Co. Inst. 80.

So stood the common law at and before the separation of the colonies from the mother country. That law, in general terms, is the law of Tennessee. We say, in

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As said in the latter case:

"The cession act, enacted by the general assembly of North Carolina in 1789 (Act 1789, chap. 3), and accepted by the Congress of the United States April 2, 1790, provided that the laws in force and in use in North Carolina at the time of passing that act should be and continue in full force in the territory ceded until the same should be repealed or altered by the legislative authority of the territory. Nunnely v. Doherty, 1 Yerg. 27.

"And by our Constitutions adopted in 1796 and 1834 it was provided that all laws then in force in the territory previous to 1796, and those in Tennessee previous to 1834, not inconsistent with those instruments, respectively, should continue in force until they should expire, be altered, or repealed by the general assembly. Egnew v. Cochrane, 2 Head, 320.

"This was the status of the common law and the statutes of North Carolina previous to the cession act, in Tennessee, save as modified by subsequent legislation, until the adoption of our Code of 1858, which superseded all other statutory law in this state, except as therein specially provided. Code 1858, § 41 (Shannon's Code, § 58); State v. Miller, 11 Lea, 626."

In Tisdale v. Munroe, 3 Yerg. 320, 323, 324, the court said that as to British statutes not previously in use in North Carolina, and such as had been altered after the formation of our Constitution, "of these the court must judge.”

In Glasgow v. Smith, 1 Overt. 144, 154, 155, it is said: "With respect to what part of

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