Bloodworth v. State
| Decision Date | 31 December 1872 |
| Citation | 65 Tenn. 614 |
| Parties | BLOODWORTH v. THE STATE. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM ROBERTSON.
Appeal from the Circuit Court. JAMES E. RICE, Judge.E. A. HICKS for complainant.
Attorney-General HEISKELL for the State.
This is an indictment for rape, alleged to have been committed on Eliza Ann Morris by one Percell, in which the present defendant is alleged to have been present, aiding and abetting and assisting said Percell in the perpetration of the act, and so guilty of the same offense. Bloodworth was convicted, and appeals in error to this court, where several errors are insisted on for reversal of the judgment of said court below.
First, it is insisted the court erred in sustaining a demurrer to the plea in abatement filed by defendant. Said plea sets up the fact that the grand jury was composed of thirteen men; that O. P. Braden and J. G. C. Mason were members of the grand jury who found the indictment at the February term, 1872, and that the said two grand jurors had been members of the grand jury at the previous June term of the same court. It is therefore insisted that they were incompetent jurors, and the indictment, as a consequence, not found by a legally constituted grand jury, and the proceedings under it void.
Sec. 3988 provides that no court shall appoint any person to serve as a juror more than once in each period of twelve months, either on the original panel or to fill a vacancy. The next section requires the court to discharge him, if any juror is appointed in violation of this provision, and appoint another free from like objection. Secs. 4909-10 provide that either party may challenge for cause any person presented as a petit juror who is incompetent to act as a juror under the provision of the Code, the latter section specifying that having served as a juror within twelve months is one of the causes for such challenge.
Construing the various sections together, they mean that it is the duty of the court to discharge a party who has served within twelve months, when the matter is brought to the attention of the court; and we add, that the court should take upon itself to enquire, and discharge this duty, before the grand jury is empaneled; but this is directory, only imposing a duty on the court, but not affecting the validity of the action of such jury, if the duty is neglected. This, so far as a grand jury is concerned, is the rule; but as to a petit jury, it is the right of either party to the case to get clear of the incompetent juror by challenge, and if he fails from proper cause to exercise this right at the proper time, it would be a conclusive waiver of it, and the verdict of the jury be valid. There was no error in the case on this point.
The next question presented arises on the facts as to the consent of the party alleged to have been the subject of the offense, or rather her incapacity, by reason of imbecility or feebleness of mind, to give such consent, and the law as charged on this question by his Honor the Circuit Judge.
The proof shows that Percell had procured a man named Cook to personate a minister of the gospel for the purpose of performing a mock ceremony of marriage with Miss Morris. Percell and Cook, together with defendant, went to a place in the woods near the house of the father of Miss Morris, in the latter part of October, about two hours before sundown. That Percell went to the house, took the daughter, as her mother says, by the arm, and led her off to the woods, the mother following. They went to the place where Cook and defendant were in the woods, and there Cook, representing himself as a minister of the gospel from Clarksville, performed a pretended marriage ceremony, producing at the time a paper purporting to be a marriage license authorizing him to marry the parties. Percell and Eliza Ann Morris, the daughter, then started off to go to Percell's house about a mile, perhaps, from Morris's. A brother of the girl seems to have gone to the same house that night, stayed all night, and slept in the same room with the parties. Percell slept with the girl that night. No force is shown; on the contrary, it is clear that the girl made no objection, and no doubt willingly, so far as she was...
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State v. Wilkins
...(repealed 1980); King v. State, 210 Tenn. 150, 357 S.W.2d 42 (1962); Bowmer v. State, 157 Tenn. 124, 6 S.W.2d 326 (1928); Bloodworth v. State, 65 Tenn. 614 (1872); Wyatt v. State, 32 Tenn. 394 With the foregoing in mind, we conclude that the challenged portion of the aggravated rape statute......
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State v. Tizard
...then, cannot be substituted for force, as an element of this offence, according to the existing law. 32 Tenn. at 398-99. In Bloodworth v. State, 65 Tenn. 614 (1872), the supreme court was confronted with the use of a mock marriage to induce a woman of "very weak mind" to believe that she wa......
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Smith v. State
...basis from which to draw the inferences sought by the State. In Stephenson, supra, Judge Carr recites from Bloodworth v. State, 6 Baxt. 614, 65 Tenn. 614, 32 Am.Rep. 546, wherein the testimony of the prosecutrix's family physician failed to establish that she was mentally incapable of conse......
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Stephenson v. State, 4 Div. 134
...they bear striking analogy to those in the case at bar. We quote the following from the opinion in the case of Bloodworth v. State, 6 Baxt. 614, 65 Tenn. 614, 32 Am.Rep. 546: 'As to the capacity of the girl to consent to what was done, or to refuse or oppose it, owing to mental incapacity, ......