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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.

Messrs. W. Bryant, J. A. Carlin, P. C. (February 11, 1915.)

Crowley, and John Gothard also for ap

pellant. PPEAL by defendant from a judgment Mr. William H. Swiggart, Jr., Assist

of the Criminal Court for Putnam ant Attorney General, for the State: County, convicting him of murder in the

A verdict rendered on Sunday is valid, first degree. Reversed.

and a judgment may be lawfully rendered The facts are stated in the opinion. thereon. Messrs. V. E. Bockman and B, G. Ad.

Baxter v. People, 8 Ill. 368; Ball v. cock, for appellant:

United States, 140 U. S. 131, 35 L. ed. 383, Any judicial act, judgment, or procedure 11 Sup. Ct. Rep. 761; Rawlins v. State, done on Sunday is absolutely void.

124 Ga. 31, 52 $. E. 1; Bales v. Com. 11 Styles v. Harrison, 99 Tenn. 128, 63 Am. Ky. L. Rep. 297, 11 S. W. 470; Simmons St. Rep. 824, 41 S. W. 333; Breyer v. State, v. State, 129 Ala. 41, 29 So. 929; Sanford 102 Tenn. 110, 50 S. W. 769; Davis v. v. State, 143 Ala. 78, 39 So. 370; Moore the decision in Moss v. State, that a jury night or at sunrise; and both principle and may not be charged on Sunday, but the ques- authority concur in fixing it at midnight. tion has not often been directly decided. If the hour can be exceeded by ten minutes, Charging the jury is a judicial, as distin- it may by an hour or twelve hours. Such guished from a ministerial, act, and on prin- irregularities and void proceedings have been ciple ought not to be possible on a nonjudi- held to make the final judgment erroneous, cial day.

and in many similar cases new trials have In Arthur v. Mosby, 2 Bibb, 589, a new been granted.” trial was ordered where the cause coming A conviction was reversed for submitting on for trial on the last day of the term, the cause to the jury on Sunday where a some of the evidence was heard, the verdict trial for petit larceny was commenced on of the jury made up and returned into court, Saturday and submitted to the jury at 2 and the judgment of the court rendered af. A. M. Sunday morning, who rendered a verter 12 o'clock on Saturday night, as the dict of guilty in about one hour, and on proceedings were not authorized by law, Monday morning judgment was pronounced either as being beyond the term, or on a on the verdict. The statute provided that day not judicial.

“no court shall be open, transact In State v. Green, 37 Mo. 466, the court business, on Sunday, unless it be for the reversed a conviction of murder because purpose of receiving a verdict or dischargthe reading of the instructions to the jury ing a jury; and every adjournment of a by the court had not been concluded, nor court on Sautrday shall always be to the cause finally submitted to the jury, until some other day than Sunday, except the clock in the court room showed ten such adjournment as may be made aitminutes after 12, midnight, on Saturday, er a cause has been committed to a jury. when the court took a recess, without ad- But this section shall not prevent the exerjournment, until 2 o'clock on Sunday morn- cise of the jurisdiction of any magising, and then received the verdict and dis- trate, when it shall be necessary in criminal charged the jury. The statute provided cases, to preserve the peace, or to arrest the that "no court shall be open or transact offender.” The particular question disbusiness on Sunday, unless it be for the cussed in the case was the overruling of a purpose of receiving a verdict or discharg- contention by the public prosecutor that ing a jury, and every adjournment of a the statute had regard only to the solar or court on Saturday shall always be to some artificial day as distinguished from a day of other day than Sunday, except such ad- 24 hours. Pulling v. People, 8 Barb. journment as shall be made after a cause 384 (referred to in the opinion of Leonard, has been committed to the jury.” The C., in Allen v. Godfrey, 44 N. Y. 433, as court said: “There can be no doubt that, holding the verdict and judgment bad for under this statute, the sitting of the court, the reason that the cause was submitted the giving of instructions, and the submit on Sunday”). ting of the cause to the jury, were pro- But it has been held that if a prisoner hibited, whether they were strictly judicial appeals from a judgment in a case where or merely ministerial acts.

We the jury was charged and he was convicted have felt some hesitation about reversing and sentenced on Sunday, he cannot claim a conviction otherwise legal, on so small a that the court has lost jurisdiction and that matter as ten minutes' time. The maxim he has obtained immunity, but a new trial De minimis non curat ler cannot be applied will be ordered. People v. Luhrs, 79 Hun, to such a case. The rule must be defined; 415, 29 N. Supp. 789, the line must be drawn somewhere. The menced on Saturday, before a court of speday must be held to begin either at mid-'cial sessions, continued into Sunday morn


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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. of H. S. Gill. He was tried and found State, 101 Miss. 598, 58 So. 217; Stone v. guilty of murder in the first degree, with United States, 167 U. S. 178, 42 L. ed. 127, mitigating circumstances, at the May 17 Sup. Ct. Rep. 778; State v. Baker, 67 term, 1914, and judgment was rendered Wash. 595, 122 Pac. 335; Gholston v. Ghols- that he be confined in the state penitentiary ton, 31 Ga. 625; People v. Odell, 1 Dak. during his natural life. He made a motion 197, 46 N. W. 601; Jones v. Johnson, 61 | for a new trial in the lower court, which Ind. 257; State v. Green, 37 Mo. 466; was overruled, and he has appealed to this Knoxville v. Knoxville Water Co. 107 Tenn. court and assigned errors. 647, 61 L.R.A. 888, 64 S. W. 1075; Swann We deem it unnecessary to notice any of v. Swann, 21 Fed. 299; Moseley v. Van the errors assigned, except one based upon hooser, 6 Lea, 286, 40 Am. Rep. 37.

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:

day, and the arguments of counsel continued The plaintiff in error was indicted in' until 11:30 P. M., and that no formal ading, when the jury was charged and the de There are other cases where the jury refendant convicted and sentenced.

tired before Sunday to consider their verIt may well be doubted whether the Geor- dict, and where they later and on Sunday gia court would now approve the passage in received further instructions. the opinion in Gholston v. Gholston, 31 Such a course was approved in People Ga. 625, quoted in Moss v. State, and in v. Odell, 1 Dak. 197, 46 N. W. 601, referred the Gholston Case a conviction was reversed to in Moss v. STATE, also in the obiter reon other grounds.

marks in Jones V. Johnson, 61 Ind. 257, In North Carolina, however, it seems that quoted in Moss v. STATE. See also Stone it may not necessarily be erroneous to v. United States, infra. But the court charge the jury on Sunday. In State v. was of a contrary opinion in Davis v. McGimsey, 80 N. C. 377, 30 Am. Rep. 90, Fish, 1 G. Greene, 406, 48 Am. Dec. 387, where the jury on a murder trial retired where the jury retired to deliberate late to consider their verdict between 12 and 1 on Saturday night, and early on Sunday o'clock on Sunday morning, and later re- morning came into court and asked for and ceived further instructions and were dis- obtained further instructions in the absence charged sometime later on Sunday, not hav- of the plaintiff and his counsel, and the vering agreed, the appellate court discharged dict was received and judgment entered on the prisoner from custody as immune from Sunday. The court said, inter alia: "In further trial, it not appearing that the dis- this case the final charge to the jury, their charge of the jury was necessary; that is verdict, and the judgment, were given and to say, it not appearing that the court was rendered upon the Sabbath day; and being, sufficiently satisfied that they could not in legal contemplation, judicial acts, we agree. The court, however, stated: “We can but consider them utterly void.” (But think there is nothing in the objection it was also considered that, as the term raised that the court was held on Sun- ended at midnight on Saturday, all subseday for the purposes of this trial, un- quent proceedings were coram non judice der the circumstances. State v. Ricketts, and void.) 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: “In structions, which were given without obthis state in general every act may law. jection, it appears from the brief report fully be done on Sunday which may lawfully "that the charge to the jury was like any be done on any other day, unless there be other unauthorized communication, and

of the legislature forbidding that the parties, by consenting to it, waived it to be done on that day.

We do any objections thereto.” not say how it would be (if we may suppose The question was not presented in a simsuch an improbable case) if a court should ple form, if at all, in the civil case of Stone undertake to sit on Sunday for the trial v. United States, 12 C. C. A. 451, 29 U. S. of actions, civil or criminal, or for giving App. 32, 64 Fed. 667. There the jury, havjudgments, when no extreme necessity for ing retired to deliberate on Saturday, were it existed. As long practice makes the law sent for on Sunday, on the court's own moof a court, probably its proceedings in such tion, who submitted to them certain questions cases would be deemed irregular.”

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 jury, having received the charge of the court court on the next morning. Following this in writing, retired, in charge of their sworn an entry appears, as of date May 24th, re- officers aforesaid, to consider of their ver. citing that the court met pursuant to addict, carrying with them said written charge journment; present and presiding the Hon. of the court and indictment in the case. crable J. M. Gardenhire, Judge, etc. The | This charge was delivered at 11 o'clock A. entry then proceeds as follows: “No formal M., Sunday, May 24, 1914." proclamation of the opening of court was The minutes on Monday, the following made by the sheriff, the court not formally day, recite in regular form that the jury having adjourned, but having taken a re having heard all the evidence and the argucess until this time for the purpose of the ments of counsel, and having received the court's delivering his charge to the jury in charge of the court, returned their verdict the case of State of Tennessee v. McCon into open court. nell Moss, charged with murder."

The question presented is whether the It is then recited, under the proper style trial judge could lawfully hold court and of the case, that the attorney general was charge the jury on Sunday. present for the state, and also the defend- In a long experience on the bench the ant in his own proper person and by coun- writer of this opinion can recall no insel, and that the jury also came, giving the stance in which a similar attempt was ever names of the members of the jury, etc., "and before made in this state by any of our trial said jury having heard all of the evidence judges, nor can any other member of the on both sides of the case, and having heard court recall such instance. Some authori. the arguments of counsel, the court pro- ties have been submitted to us from other ceeded to read his charge to the jury, which jurisdictions in which such a practice has the same way that the whole case was sub- further than to hold that the general vermitted to you, to be answered if you can," dict was not a nullity by reason of its being stating that he desired an answer to the received or recorded on Sunday. special questions “for the use of the government in other litigation.” In affirming the Writs of inquiry and inquests. judgment entered upon a verdict for the

The execution of a writ of inquiry on a United States, the circuit court of appeals Sunday is void. Hoyle v. Cornwallis, 1 said: “It appears that no exceptions were

Strange, 387. taken on Sunday to any of the transactions that occurred on that day. It is questionable menced before the sheriff and jury on Satur

The execution of a writ of inquiry comif the proceedings which took place could be fairly classed as instructions to the jury, consider their verdict about 1 A. M. Sun

day evening, wherein the jury retired to but if they could be so considered, and the day morning, and returned their verdict court had any power to give instructions about three hours later, is an execution of on Sunday, it was the duty of the defend the writ on Sunday within the meaning of ant to have then and there excepted, if he the statute forbidding the service or execuhad any objections thereto. It is evident tion on Sunday of any writ, and the inquisi. that the defendant was not prejudiced by tion must be set aside. Butler v. Kelsey, 15 anything that transpired in court on that Johns. 177, where there were other grounds day. All that was said had reference to the also requiring the setting aside of the infinding of a special verdict, which could not

quisition. have affected the result as to the general

There is not an entire agreement whether verdict. The remark of the court that the a coroner's inquest may be held on Sunday. answers were required for use in other cases

In Re Cooper, 5 Ont. Pr. Rep. 256, it was might very properly have been omitted, but held that a coroner's inquest held on Sunday we are unable to see how it could have had was void, and prisoners held on the coroner's any tendency to influence the jury against warrant of commitment, made the same the defendant. The whole case was fairly day, were discharged on habeas corpus, as and impartially submitted by the court in there was nothing to support the warrant. its general charge given to the jury on the

A coroner's “inquisition, being judicial, day before, and the court, on Sunday, de must not be conducted on a Sunday.” i clined to give any further instructions, and Burn's J. P. 28th ed. p. 928; quoted in Reg. informed the jury that the answers to the

v. Cavelier, 11 Manitoba L. Rep. 333. special questions should be given in accord- Atl. 547, it was held that "an inquest held

But in Blaney v. State, 74 Md. 153, 21 ance with the previous instructions. It

by a coroner's jury, and the commitment by was left optional with the jury to answer

coroner or magistrate of an accused to these questions, although the court requested jail, are rather ministerial than judicial them to do so if they could.” The aflirmance acts. They are certainly not of that juof this case in the Supreme Court (167 U. S. dicial character which precludes their being 178, 42 L. ed. 127, 17 Sup. Ct. Rep. 778) performed on Sunday." But this was not does not seem to deal with the question necessary to the decision.

B. B. B.



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been measurably sanctioned under special, ciently show its substance: “It appears from circumstances or by statute, but only two the record that the jury was charged and recases have been brought to our attention tired to consider their verdict about 9 where such an attempt has been made in the o'clock on Saturday night, and that at 3 absence of a statute. One of these cases is o'clock on Sabbath afternoon, the jury not Gholston v. Gholston, 31 Ga. 625, 638. A having agreed, the judge, on his own mobrief excerpt from the opinion in this case tion, had them brought in and delivered to will show all that appears on the subject. them further instructions, by way of corSaid the court: "The court was actually de recting a supposed error in his former livering the charge to the jury on Saturday charge, and this is assigned as error. It is night, when the hour of 12 o'clock arrived, claimed that, this being a judicial act, canand the Sabbath day, according to our com- not be done on the Sabbath. The Sabbath putation of time, had commenced before he being dies non juridicus, it is doubtless the concluded. This may have been inadver- well-settled general rule that no judicial tence, but, under all the circumstances, was acts can be done on that day. But the jury certainly very grave

being out, they are not permitted to sepWhatever judicial action was had

arate until they have agreed upon their veron the Sabbath day was either inadvertent dict, or are discharged by the court from or inevitable.

We think what further consideration of the case. The Code transpired on the Sabbath was not sufficient of Criminal Procedure provides (8 388) that to vitiate the verdict, holding, at the same 'while the jury are absent the court may adtime, that all courts should abstain from journ from time to time as to other busithe transaction of ordinary business on that ness, but it is nevertheless deemed open for holy day.”

every purpose connected with the cause subThe next instance is Jones v. Johnson, 61 mitted to them until a verdict is rendered Ind. 257, 264. The point in decision was or the jury discharged.'” that the trial judge committed error in en- So it was held that under the statute the tering the jury room on Sunday and in court was to be considered open for such structing the jury in the absence of the par-case. ties and of their counsel. After quoting a In the absence of a statute authorizing it, passage from McCorkle v. State, 14 Ind. 39, there can be no doubt that it is unlawful to the effect that the law permitted a ver- for a court to do any judicial act on Sundict to be returned on Sunday, and as an day. The leading case is Swann v. Broome, incident authorized the court to sit on that 3 Burr. 1595-year 1764. In this case Lord date to receive any motion or order touch- Mansfield reviewed the whole subject. He ing it, and to discharge the jury after ren said that anciently the court sat on Sundering it, continued: “We may add, as a days; that the ancient Christians practised further incident to this authority to re- this for two reasons: One was in opposition turn a verdict on Sunday, that in our opin- to the heathen, who were superstitious ion, if it should appear to be necessary to about the observation of days and times, the speedy formation and return of a ver-conceiving some to be ominous and unlucky dict, and the jury should desire to be in and others lucky; that therefore the Chrisformed on that day as to any part of the tians laid aside all observance of days; that testimony, or as to any point of law aris- a second reason they had was that by keeping in the case, the court may sit on Sun- ing their own courts always open they preday for the purpose of giving the jury the vented Christian suitors from resorting to information required, 'in the presence of, or heathen courts. But he further observed after notice to, the parties or their attor that in the year 517 a canon was made forneys.'”

bidding the adjudication of causes on SunIt is perceived that what was said in this day; that this canon was ratified in the case upon the subject of instructing the time of Theodosius, who fortified it with an jury was dictum, since the ground of re- imperial constitution. He referred to other versal, and the only point under examina- subsequent canons adding other holy days. tion, was the action of the trial judge in These canons, it seems, were received and going into the jury room and giving addi adopted by the Saxon kings of England, tional instructions, in the absence of and and were all confirmed by William the Conwithout notice to the parties or their coun- queror and Henry II. and so became part sel.

of the common law of England. In the In the Georgia case the matter was treated course of time, other days were disregarded as merely an inadvertence, and, if not so, as nonjudicial, but Sunday retained. It as a necessity.

was held that, while merely ministerial acts We are referred to the case of People v. might be done on Sunday, no judicial act Odell, 1 Dak. 197, 203, 46 N. W. 601, 603. could be performed. For example, the renA short excerpt from that case will suffi-'dering 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 In Mackalley's Case, in 9 Coke, 65 b, it was government therein established, and which objected that Sunday 'is not dies juridicus, have not been otherwise provided for, in and that therefore no arrest can be made the whole or in part, not abrogated, rein it, and every one ought to abstain from pealed, or expired, are hereby declared to be secular affairs upon that day. But it was in full force in the state.' Act of April, answered and resolved 'that no judicial act | 1778, chap. 5, § 2.” Fields v. State, 1 ought to be done in that day, but ministerial Yerg. 158, 159; Porter v. State, Mart. & Y. acts may be lawfully executed in the Sun. 226, 227, and cases cited on latter page; day.'”

Tisdale v. Munroe, 3 Yerg. 320, 323, 324; To the same effect is 4 Bacon's Abridg. State v. Miller, 11 Lea, 620, 624–629; Smith ment, page 640: “By the common law dies v. North Memphis Sav. Bank, 115 Tenn. dominicus non est juridicus. No plea there. 12, 17-19, 89 S. W. 392, 393. fore shall be holden quindena Pascha, be

As said in the latter case: cause it is always the Lord's day; but it “The cession act, enacted by the general shall be crastino quindena Paschæ. Fitzh. assembly of North Carolina in 1789 (Act Nat. Brev. 17, f. So, upon a fine levied with 1789, chap. 3), and accepted by the Congress proclamations according to the statute of 4 of the United States April 2, 1790, provided Hen. VII., chap. 24, if any of the proclama. that the laws in force and in use in North tions are made on the Lord's day, all the Carolina at the time of passing that act proclamations are void, for the justices may should be and continue in full force in the not sit upon that day, being a day exempt territory ceded until the same should be refrom business by the common law for the pealed or altered by the legislative authorsolemnity of it, to the intent that all people ity of the territory. Nunnely v. Doherty, may apply themselves that day to prayer | 1 Yerg. 27. and serving God. Finch's Law, 7.

“And by our Constitutions adopted in In Wharton's Legal Maxims, the maxim 1796 and 1834 it was provided that all laws Dies dominicus non est juridicus is correct. then in force in the territory previous to ly rendered: “The Lord's day (Sunday) is 1796, and those in Tennessee previous to not juridical, or a day for legal proceed 1834, not inconsistent with those instruings.” He adds: “None of the courts of ments, respectively, should continue in force law or equity can sit on this day.”

until they should expire, be altered, or reSo it has been held that no indictment pealed by the general assembly. Egnew v. can be found on Sunday, and that every Cochrane, 2 Head, 320. indictment should have a caption showing “This was the status of the common law the day on which it was found, so that it and the statutes of North Carolina previous might appear that it was not found on Sun- to the cession act, in Tennessee, save as day. 8 Bacon, Abr. 701; Dakin's Case, 2 modified by subsequent legislation, until the Wms' Saund. 290, 1 Vent. 107, 2 Keble, 731. adoption of our Code of 1858, which superNor can a writ of inquiry be executed on seded all other statutory law in this state, Sunday. 4 Bacon, Abr. 640; Cornwallis v. except as therein specially provided. Code Hoyle, Fortescue, 373, 1 Strange, 387. 1858, § 41 (Shannon's Code, $ 58); State

The chancery court was never adjourned, v. Miller, 11 Lea, 626.” standing open at all times, but only for the In Tisdale v. Munroe, 3 Yerg. 320, 323, issuing of writs, in its function of officina 324, the court said that as to British statbrevium. Choyce Cas. Ch. 85; 2 Bacon Abr. utes not previously in use in North Caro681; 4 Edw. IV. 2; 4 Co. Inst. 80.

lina, and such as had been altered after the So stood the common law at and before formation of our Constitution, "of these the the separation of the colonies from the court must judge." mother country. That law, in general In Glasgow v. Smith, 1 Overt. 144, 154, terms, is the law of Tennessee. We say, in '155, it is said: "With respect to what part of

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