Balden v. State

• Decision Date: 09 April 1910
• Citation: 127 S.W. 134
• Parties: BALDEN v. STATE.
• Court: Tennessee Supreme Court

Page 134

127 S.W. 134

BALDEN v. STATE.

Supreme Court of Tennessee.

April 9, 1910.

Appeal from Criminal Court, Davidson County; W. M. Hart, Judge.

Louis Balden, alias Bolten, was convicted of larceny, and he appeals. Affirmed.

James B. Newman and J. H. Zarecor, for plaintiff in error. Asst. Atty. Gen. Faw, for the State.

NEIL, J.

The plaintiff in error was indicted in the criminal court of Davidson county for the larceny of a pistol, of the value of $15. He filed his plea in abatement, which was demurred to by the state. The demurrer was sustained, and the plea in abatement was accordingly disallowed. The case was thereupon tried on its merits, and the plaintiff in error was found guilty of petit larceny, and sentenced to one day's confinement in the county workhouse. He filed his motion for new trial, which was overruled. He thereupon appealed to this court, and has here assigned errors.

The errors assigned are upon the action of the trial judge in sustaining the demurrer to the plea in abatement. This plea was filed in due time, and presented the following objections to the indictment:

"First. Because the 13 members constituting the grand jury which found the alleged indictment in this case were appointed by the judge of the criminal court of Davidson county, Tennessee, and not drawn from a box or other suitable receptacle by a child under 10 years of age, as required by law.

"Second. Because the 13 members constituting the grand jury which found and returned the alleged indictment in this case, to wit, B. F. Cook, W. J. Booth, J. M. Lanier, George Enhaus, John Woods, J. L. Carney, J. C. Baker, E. B. Parkerson, R. P. Hutton, John Bosworth, W. H. Blair, N. B. Hitt, and Everett Creech, were appointed by the judge of the criminal court of Davidson county from the panel of grand and petit jurors, consisting of 500 names drawn by the jury commissioners of said county from the jury box for the January term, 1910, of said court, pursuant to an order entered in Minute Book 3, page 40, of said criminal court, by the judge thereof, and filed with the clerk of said court, who duly had summoned all of said 500 persons so drawn to be present on the first day of said term. Said panel of 500 jurors was regularly summoned by the sheriff of said county, and in attendance on the first day of said term of said court, and said judge from said panel of 500 jurors appointed said 13 men as the grand jury for said term, without directing the names of all said jurors — 500 — in attendance to be written on scrolls and placed in a box or other suitable receptacle, and the first 13 drawn out by a child under 10 years of age, to be the grand jury for said term.

"Third. Because the rule or order under and by which said panel of grand and petit jury was drawn from the jury box by the jury commissioners, entered by said judge in Minute Book 3, page 40, of said criminal court, in words and figures as follows: `Order of Court. It is ordered by the court that the jury commissioners of Davidson county, Tennessee, furnish this court with five hundred names from which to select the grand and petit jury for the ensuing January term, 1910, which convenes first Monday in January, 1910,' does not designate the number of juries and additional and extra jurors who shall be in attendance at the January term of said court, as required by law.

"Fourth. Because the slips or scrolls upon which were written the 500 names taken from the jury box by the board of jury commissioners for the January term, 1910, of said court, were not placed in a sealed envelope, safely kept, and delivered by the chairman of said board in open court to the judge of said court on the first day of said term, and the said judge failed to compare the list contained in the report filed by the jury commissioners with the clerk of said court with the names on the slips or scrolls delivered in open court by the chairman of the board of jury commissioners, to ascertain if they were the same, and said report so filed with the clerk was never spread upon the minutes of said court."

The grounds of demurrer were, first, that the facts set out in the plea were insufficient in law to abate the indictment; and, secondly, that these facts show that the grand jury was organized as provided by law.

The controversy arises out of the fact that by chapter 52, Acts 1841-42, there was established a criminal court for Davidson county, which contained, in section 4, a peculiar provision as to the selection of grand and petit juries. That section is as follows:

"That the judge of said court shall from time to time appoint a grand jury and two petit juries to attend said court at its respective regular and special terms, and the said jury and the witnesses who shall attend said court, shall be entitled to the same compensation, and be subject to the same rules and regulations, and possess the same qualifications, as now provided by law in regard to jurors and witnesses in the circuit court."

The same provision was carried into the Code of 1858 as to the said court, and is found in section 4253 of that publication.

The method of selecting grand juries in criminal courts generally and in circuit courts having criminal business is thus laid down in section 4015 of the Code of 1858 (Shannon's Code, § 5827): "To form the grand jury, the court shall direct the names of the jurors in attendance to be written on scrolls, and placed in a box or other suitable receptacle and drawn out by a child under ten years of age, and the thirteen jurors whose names are first drawn shall be a grand jury for the term."

It is insisted by counsel for plaintiff in error that section 4, Acts 1841-42, above mentioned, was repealed by necessary implication by chapter 124, Acts 1901. On the other hand, it is contended by counsel for the state that section 4 referred to was repealed only so far as it was in necessary conflict with the act of 1901.

In order to a proper understanding of the question it is necessary to state that section 4, Acts 1841-42, was construed by this court, in the case of Harris v. State, at the December term, 1897, reported in 100 Tenn., at page 289, 45 S. W. 438.

It appears from that case that Harris appealed to this court from a death sentence for the crime of murder imposed by the criminal court of Davidson county. One of the matters assigned as error was that the judge of the criminal court had selected and appointed the grand jury. The court held that under the statute in question "it was entirely competent for the judge of the criminal court of Davidson county to designate by name 13 qualified persons to serve as a grand jury, or he could designate a larger panel, and from them select the required number of 13." It should be noted that in the body of the opinion the court in terms, by an evident slip of the pen, refers to Acts 1853-54, c. 13, as the act creating the criminal court of Davidson county. The latter is an act creating the criminal court of Shelby county, and section 5 of that act is an exact copy of section 4 of the act of 1841-42, which creates the criminal court of Davidson county. This clerical error therefore, does not affect the force of the holding of the court.

It may be considered as settled, therefore, that at the time of the passage of Acts 1901, c. 124, it was "provided by law" that in the criminal court of Davidson county the grand jury should be appointed by the judge of that court; that is to say, it was competent for the judge to designate by name 13 men who should constitute the grand jury.

Chapter 124, Acts 1901, which it is insisted repeals by implication the act of 1841-42, is entitled:

"An act to create a board of jury commissioners for each county in this state having a population of one hundred and twenty thousand inhabitants or over, under the federal census of 1900, or any subsequent federal census, and for the selection of juries, to prescribe the duties of the members of said board and of the judges, and to punish violations of this act; to provide for jury lists and jury boxes to be kept in each county of this state; and to repeal all laws in conflict with this act."

On the population basis indicated in this title, the act, at the time it was passed, could apply only to Davidson and Shelby counties.

Section 1 of the act provides that there shall be a board of jury commissioners for each county, consisting of three discreet persons, who are householders and freeholders of the county, and who are not practicing attorneys at law or state or county officers, who have no suit pending in said court at the time of their appointment, and not more than two of whom shall belong to the same political party, "to be appointed by the circuit judge who holds court in said county, and in case there is more than one circuit judge or a judge holding the criminal court, or a chancellor or other judge whose duty it shall be to hold the circuit court or criminal court, then by such judges holding circuit or criminal courts, and if more than one such judge, by all jointly."

Section 2 sets out the oath to be taken by the commissioners.

Section 3 prescribes the details of the organization of the board and declares that the clerk of the circuit court shall be the clerk of the board of jury commissioners.

Section 4 provides:

"It shall be the duty of said jury commissioners to select from the tax books of the county and other sources, names of upright and intelligent men, known for their integrity, fair character and sound judgment, from each and every district in the county, and in proportion to the population of such districts, as near as may be, and possessing the qualifications now prescribed by law, except that service on a regular panel within two years shall not disqualify a person, a list of names numbering not less than one-fifth the whole number of votes cast in the county for presidential electors at the presidential election next preceding the...