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Samuel Moody rs. The State.

SAMUEL MOODY vs. THE STATE.

1. VENUE. Proof of commission of the offense in Memphis. Judicial knowledge of the Court. Where the proof in the record shows that the of fense was committed within the corporate limits of the City of Memphis, as the Court judicially knows that the City of Memphis is situated within the 5th, 13th and 14th Civil Districts of Shelby county, and that these districts constitute a criminal district, with jurisd ction of crimes committed within said district, the venue is sufficiently proven.

2. ATTORNEY-GENERAL PRO TEM.

Failure of record to show his appointment. The record failing to show the appointment of an Attorneygeneral pro tem, in the court below, as no ground for a new trial. Code sec. 5242, sub-section 8.

3. UNLAWFUL ACTS. A killing in pursuit of Principals and Accomplices. If there is a killing in pursuit of an unlawful act, that all were engaged in, and carrying out the original design, if any one of the party kill any one that oppose them, it would be murder in all the rest of the company who came with the intent to do that unlawful act, though there was no express intent to kill any person in the first enterprise, because the law presumes they come to make good their designs against opposition. This is the well settled rule of the common law.

4. SAME. Case in judgment. The prisoner with four others, committed burglary upon the store-house of Yeatman, in the City of Memphis. He and one of his accomplices entered the house, the other remained at the door and fled upon the approach of the deceased, and another policeman. They entered the house, ordered a surrender, lit a match, were fired upon by the prisoner or his accomplice, and the deceased, a police officer, was wounded and shortly thereafter died. Held, that it can make no difference who fired the fatal shot in this case. If the prisoner did not fire, he was present inciting, aiding and abetting, and as such, must be punished as a principal.

FROM MEMPHIS.

This cause was submitted to a jury at the Term, 1868, who returned a verdict against the defend

Samuel Moody vs. The State.

ant, of murder in the first degree. Motions for a new trial and in arrest of judgment, were made and overruled, and sentence of death passed upon the defendant; from which he has appealed to this Court. Special Judge JOSEPH E. BIGALOW, presiding,

BEN. J. LEE, for Moody.

GEORGE GANTT; for the State.

JAMES O. SHACKELFORD, J., delivered the opinion of the Court.

The prisoner was jointly indicted with three other persons, at the June Term, 1868, of The Criminal Court of the City of Memphis, for the murder of Captain S. Perry, a policeman of that City. He was put upon his trial during the term, and by the jury convicted of murder in the first degree, without mitigating circumstances. A motion for a new trial was entered, which was overruled, and sentence of death pronounced against the prisoner; from which judgment an appeal was taken to this court. The questions arising on the record, have been presented with much ability. It is insisted, on behalf of the prisoner, the indictment being signed by an Attorney-general pro tem., there being no order of the Court in the record, showing his appointment as such, the judgment must be arrested.

Second, That the bill of exceptions, does not show the offense was committed within the district over which the Criminal Court of Memphis has jurisdiction;

Samuel Moody vs. The State.

that, though one of the causes assigned as error, would not authorize a reversal, yet, if two or more existed, it would be such error as would be fatal to the judg

ment.

Third, The proof does not support the verdict.

In support of the two first propositions, it is insisted as the bill of exceptions does not show the venue was proven, and the indictment being signed by an Attorney-general pro tem., these errors being apparent under the rulings, of this Court, in the case of Davidson vs. State, 2 Cold., 184, the judgment must be reversed. We recognize the principles settled in that case, and are not disposed to depart from them. But upon an examination of the record, we think this case does not fall within the rule. It appears from the proof, the murder was perpetrated in the City of Memphis. Several of the witnesses prove that they live within the city limits, and that the killing was near their place of business, and on a particular street within the city limits. The whole volume of proof shows the murder was committed within the city; and we judicially know, the City of Memphis is situated within the fifth, thirteenth and fourteenth civil districts of the county of Shelby, and that those districts constitute a Criminal Judicial District, with a court having exclusive original jurisdiction of all crimes committed within the same. See sec. of the Code 119. This principle was settled in the case of Hite vs. State, 9 Yerg., 357. In that case, the offense was proven to have been committed in Haysboro', an incorporated town, it being declared by public statute, to be in

Samuel Moody vs. The State.

the County of Davidson. The court say: "They would judicially take notice of its being in the county, but subsequent Acts of the Legislature having changed the county lines, they could not say that it was within the county." In this case a public statute having declared Memphis, to be situated within the criminal district, and there being no law changing it, it follows, the proof shows the offense was committed within the jurisdiction of the court, and the venue is sufficiently proven.

The record does not show the appointment of an Attorney-general pro tem.; the indictment is signed by "John Bullock, Attorney-general, pro tem."

Previous to the adoption of the Code, this would have been fatal. It is expressly provided by sec. 5242, of the Code, where a person is presented or indicted for a criminal offense, and is arraigned before a court having the jurisdiction of the matter, pleads not guilty, and is tried upon the merits and is convicted, he shall not be entitled to a new trial, or to an arrest of judgment, or reversal of the judgment for certain specified causes. Sub-section 8, of the section referred to, embraces the errors assigned; and provides, that, "because an indictment was drawn by an Attorney-general, pro tem., and the clerk omitted to enter his appointment on the minutes of the court, it shall be no cause of reversal."

There being but one of the causes specified in the section of the Code referred to, in this record, the defect falls within the provisions of the statute, and it is not such error as will authorize a reversal. Conse

Samuel Moody vs. The State.

quently this case does not fall within the rule declared in the case of Davidson vs. State, which settles the principle, if two or more of the causes, specified in the section of the Code referred to, exist, it is error, for which the judgment will be reversed. The charge of the Court upon the points involved, is very favorable to the prisoner. There are many principles of law discussed by the Court, that have no relevancy or bearing upon the matters in issue. The charge appears to have been a stereotyped one, adapted to other classes of offenses; but there is nothing in it, that could mislead the jury. And we can see no error that could justify a reversal.

It becomes necessary, therefore, under the rulings of this Court in criminal causes of the magnitude of the offense under consideration, that we examine the testimony and see if the evidence sustains the verdict. The deceased was killed on the night of the third of June, 1868, about eleven o'clock. He was a policeman, on duty at the time. About 9 o'clock at night, the prisoner, with four other persons, was scen on the street near the place where the killing was done. A policeman called the attention of the deceased to the crowd. They seemed to be in consultation. He remarked that they were a "rough set," and "up to something." After this, they were seen at several places, near the house where the offense was committed. The prisoner came up the steps of the "keno" room, where the deceased was; shortly thereafter, he was seen with the same crowd that he was with in the early part of the evening, near Yeatman's store, which was burglari

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