78 Tenn. 414 | Tenn. | 1882
delivered the opinion of the court.
The prisoner was indicted for the murder of George Howard, and having been found guilty of murder in the second degree, and sentenced in accordance with the verdict, appealed in error.
The policy of this State, as oí the common law, has been to protect the citizen against groundless or improper prosecutions by requiring the name of a prosecutor to be marked on the indictment, to whom the defendant might look for redress if entitled to it. The act of 1801, ch. 30, brought into the Code, sec. 5096, provided: “No district attorney shall prefer a bill of indictment to the grand jury, without a prosecutor marked thereon, unless otherwise expressly provided by law.” The original act contained the further provisions, not embodied in the Code, that the party against whom a bill was preferred without a prosecutor might give th* act in evidence, whereupon the court should order his discharge, and the attorney-general was made answerable lor 'the costs. The decisions under the act were necessarily in accord with its terms: Moyers v. State, 11 Hum., 40; Wattingham
The point urged in this case is that the record shows that the indictment was found before the order' of the court directing the attorney-general to prosecute officially. But there is no difference in principle between the question raised by the given state of facts, and the question arising upon the total absence of a prosecutor. In either event, the omission must be taken advantage of at once, before there is a final verdict on the merits. Moreover, the fact whether the order of the court to the attorney-general to prosecute a bill officially is made before or after indictment found is
It is suggested by the defendant’s counsel that the court erred in admitting certain portions of the evidence objected to by defendant, and in excluding certain evidence offered by the defendant, for which he says “see record,” without specifying anything. In like manner, he says the trial judge charged too strongly against defendant, see record page 31, and other portions of the charge. We understand from these suggestions, that the counsel has been unable to find anything either in the rulings of the court on the admission and exclusion of evidence, or in the charge on which he can assign error. We concur with him in his conclusion. The defendant’s affidavit discloses no sufficient ground for a new trial.
Affirm the judgment.