Carter v. State
| Decision Date | 30 September 1882 |
| Parties | Jacob Carter v. The State. |
| Court | Tennessee Supreme Court |
Appeal in error from the Circuit Court of Hamilton County. D. C. TREWHITT. J.
LEWIS SHEPHERD and W. L. EAKLN for Carter.
ATTORNEY-GENERAL LEA for the State
Carter was convicted in the circuit court of Hamilton county, of voluntary manslaughter and sentenced to seven years imprisonment in the penitentiary of the State, and has appealed to this court.
The bill of exceptions embraces only the affidavits of defendant, some of the jurors, and others which were read in support of the motion for a new trial, and counter affidavits introduced by the State.
None of the evidence adduced upon the trial is contained in the record, and of course we presume it was sufficient to support the verdict.
The application seems, from the record, to be founded solely upon the imputed misconduct of the jury in receiving and reading newspaper notices of the homicide and incidents of the trial, which were not in evidence.
Some attempt is also made to show that there were improper communications between some of the jury and other persons. But the facts disclosed by the affidavits, do not support this charge. We have not been furnished with any brief, or memorandum, from either the prosecution or defense.
The trial began April 1, and ended April 4, 1882, and defendant's affidavit states than on the 2d of April an article appeared in the “Chattanooga Times,” written or furnished by Mr. Everett, one of the counsel for the prosecution, purporting to give a “history of the homicide for which affiant was on trial,” and “to give the facts of affiant's connection with said homicide.”
The article is set out in the affidavit and is headed: “The Evans Murder-- After four years of delay the accused murderer is at last on trial.” The article gives the names of the jury, and the counsel engaged in the cause, and then states Evans was killed while returning from a corn husking; that he was waylaid and received nearly one hundred shots in the body. That Carter (the defendant), three England brothers and John Goldstein, were suspected of having done the deed through mere wantonness, but the four last succeeded in escaping.
The article further states that the trial had been delayed for four years on account of the failure of Carter's father, who was one of the most important witnesses against him, to appear; and that he was arrested on attachment and placed in jail six months ago, to secure his attendance. A circumstantial account of the robbery of a train by the James gang, detailed by one of the gang, appeared in the same paper, and is set out in full. Also a further account of the murder of Evans, appeared in the same paper the next day, 3d of April.
The proof of the publication of the articles substantially as stated, is satisfactory. And if such publication was, in fact, in the hands of the jury, and read by them, or any of them, we think it would be sufficient reason for granting a new trial. It is well established by repeated adjudications of this court, that the verdict of the jury must be founded alone upon the evidence delivered in open court in the presence of the judge and the parties: 1 Swan, 63;6 Hum., 275;1 Baxt., 241; 3 Wh., sec. 3136.
At an early day, it was held if the jury receive papers not submitted in evidence, and a conviction is had, whatever the papers may be, a new trial should be granted, unless defendant occasioned the error: 3 Wharton, sec. 3136, citing 2 Hale P. C., 308; 5 Mass., 405. Subsequently this doctrine was modified in Massachusetts, and it was held that where a paper was taken out by the jury by accident, and it was shown that it was not opened, the verdict was not vitiated: 5 Pick., 296. And where articles referring to the case on trial, were cut out of newspapers by the officer, and the papers were then handed to the jury, it was held that this was an irregularity in the officer, but did not vitiate the verdict: 3 Wharton C. L., sec. 3137.
The question then, for our determination is, were these article, or any of them, in relation to this homicide, before the jury?
Defendant introduced, in corroboration of his own statement, the affidavits of Jas. L. Whiteside, V. S. Whiteside, Thomas Crews, E. A. Norris and Geo. W. Ochs. The first four named, being jurors in the case, and Ochs the person who published the article, or reported it for publication. Jas. L. Whiteside stated that the deputy sheriff who had the jury in charge, furnished them two copies of the “Times” of 2d of April. After cutting out the article heretofore referred to, in relation to the killing of Evans and the trial of Carter and the arrest and imprisonment of his father as a witness, he handed the slips cut out to H. F. Rogers, who laid it, or them, on the counter of the cigar stand at the hotel where the jury were staying; that he, Jas. L., took up the slip and read it and handed it to another member of the jury. The article was the same headed the “Evans Murder.” He states that on the next day, 3d of April, the officer purchased some copies of the “Times” of that date, containing an article about the defendant, that he cut this article out of the papers and tore it up, throwing the pieces down, and he, affiant, picked up some of the pieces, but could not place them so as to read the article.
V. S. Whiteside states that on the 2d of April, the officer bought some copies of the “Times” of that date, cut out the article referred to, and left the article lying on the counter in the office of the hotel; that Jas. L. Whiteside, another juror, picked up the slip which had been cut from the paper, and affiant, and Jas. L., and several other jurors read it, while the trial was in progress; affiant also states that he picked up a “Times” of the 2d of April, from a table in the court room, which had not been cut, and read the same article in that paper. He and Jas. L. both state that they were not aware that there was anything wrong in reading that article while they were on the jury.
Thomas Crews says he saw the officer cut the slips from the “Times” of the 2d of April, and hand them to H. F. Rogers, and he saw Jas. L. Whiteside reading said slip, and his best impression is that jurors E. A. Norris and V. L. Whiteside also read it. Norris had the slip after the trial and showed it to affiant.
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...any other acts complained of in this assignment of error that the verdict is valid. This assignment is based on such cases as Carter v. State, 1882, 77 Tenn. 440, and like cases, wherein the courts hold that if the account in the newspaper is prejudicial to the defendant and likely to inter......
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