Cartwright v. State

Decision Date31 December 1883
Citation80 Tenn. 620
PartiesJO. CARTWRIGHT v. THE STATE.
CourtTennessee Supreme Court
OPINION TEXT STARTS HERE
FROM TROUSDALE.

Appeal in error from the Circuit Court of Trousdale county. N. W. MCCONNELL, J.

J. J. TURNER, I. L. ROARK and MCMURRY & HAMMOCK for Cartwright.

Attorney-General LEA for the State.

DEADERICK, C. J., delivered the opinion of the court.

Plaintiff in error was convicted in the circuit court of Trousdale county of murder in the second degree for killing Hugh Sanders, and his punishment was fixed at fifteen years confinement in the penitentiary. His motions for a new trial and in arrest of judgment being refused, he has appealed in error to this court.

The killing occurred in the county of Macon, and defendant was tried there and convicted of murder in the first degree, and sentenced to be hung. But upon appeal to this court the judgment was reversed for error in the charge of the court. Upon the cause being remanded to Macon county for a new trial, a change of venue was granted upon application of defendant, and the trial was had in Trousdale county, as above stated.

The cause has been ably and elaborately argued, and numerous grounds of error have been insisted on by defendant's counsel.

First, It appears when the cause was called for trial, that defendant's counsel understood that they were to be permitted to read the testimony of Asa Diaz, an absent witness, from the bill of exceptions taken in the former trial, and they state they would not have gone into the trial but for this understanding. They announced they were ready if permitted to read the former testimony of Diaz. But when said testimony was offered, the attorney-general objected, and it was excluded.

The court was willing to allow it to be read if the attorney-general would consent to it. But it is obvious that the attorney-general did not agree that it might be read on that trial, and the mere fact that the court directed the jury to be empanneled without indicating any dissent to the proposition of defendant's counsel could not bind the attorney-general.

If deemed material evidence, the counsel for defendant should have had a distinct understanding with the attorney-general upon the subject, and the court cannot be put in error by their failure to do so. The evidence consisted in a threat by Sanders, who had a loaded gun, that if Cartwright charged him with stealing wine he would kill him. This threat made some time before the killing was never communicated to Cartwright, and of course could not, in any degree have influenced his conduct at the time of the homicide. Beside the defendant on the trial had the benefit of the testimony of numerous witnesses, proving similar threats, some of which were, and others were not, communicated to him.

Second, It is urged also that the circuit judge erred in handing to some of the jurors, before the argument of the cause, the written charge which he had given to the jury on the former trial. It appears that several of the jurors did inspect the first page of said charge. The object stated by the court to be, to have the charge copied in a plainer hand-writing, if the jury were unable to read his writing with facility. The part of the old charge so inspected was the first page containing part of the definition of murder in the first degree. It was not handed to them as containing instructions by which they were to be governed in the trial of the cause, but merely to ascertain whether it would be expedient to have his charge written more plainly than he would write. No possible prejudice could have resulted to defendant from this.Third and fourth. It is next objected that while the jury had the cause under consideration, two of the jurors, Belcher and Wiseman, were separated from their fellow jurors. The room which the jury occupied was above stairs in a hotel, and opened into a hall which led into a veranda. At an angle in this hall the officer sat, so that he could command a view of the door of the room occupied by the jury, and the door leading into the veranda.

It is important to a fair and impartial trial that the jury should not be permitted during the trial to mingle with other citizens. If this be permitted the possibility that the juror may have been tampered with exists, and prima facie the verdict is vicious. But this presumption may be removed by evidence showing that the juror had no such communication; 6 Baxt., 161. In Hines v. The State, 8 Hum., 597, it was held that the oath of the juror alone would not be sufficient to remove this presumption.

In the case of Wiseman it very satisfactorily appears, from his own affidavit and that of the officer having charge of the jury, that no such separation occurred. Belcher, in his affidavit, states that he was in the door leading to the veranda, and that the officer was with him, and that he had no communication with other persons. The officer swears that he has no recollection of being at the door of the veranda with Belcher. But he does say that Belcher could not have been there without his knowledge, nor had any of the jury, to his knowledge, any communication with other persons, except with the trial judge, as hereinafter mentioned. Womack speaks of having seen Belcher from the opposite side of the street, standing on the veranda alone. It is clear he was not in communication with any other person, as far as the witness, Womack, could see. As far as appears this veranda was upon a level with the second story of the house having no other entrance than through the hall leading by the door of the room occupied by the jury. No one could have been in communication with him upon the subject of the trial. If a juror does wantonly separate himself from his fellows, probably the rule approved in 8 Hum., and other cases may not be too harsh. But where it is affirmatively shown that no one was with the juror, with whom he could communicate, and that he was at no great distance from the other jurors and their officer, and where the officer says, although he does not recollect of seeing the juror at the door leading into the veranda, he could not have been there without his knowledge, and that he believes no outside party, except the judge, had any communication with them during their deliberations, the probability of such communication is too remote to warrant us in saying that defendant may have been prejudiced by the facts disclosed, in respect to his temporary separation from his fellows.

It is the opportunity of tampering with a juror, afforded by the separation which constitutes the ground for a new trial, but if such separation afforded no such opportunity, there can be no cause for a new trial: 4 Hum., 37.

Fifth, Nollner, one of the...

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23 cases
  • State v. Stephenson
    • United States
    • Supreme Court of Tennessee
    • January 4, 2006
    ...such separation afforded no such opportunity, there can be no cause for a new trial.'" Gonzales, 593 S.W.2d at 291, quoting Cartwright v. State, 80 Tenn. 620 (1883). The burden is on the State to offer a satisfactory explanation as to why there was a jury separation and that the separated j......
  • State v. Bargery
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • October 6, 2017
    ...separation afforded no such opportunity, there can be no cause for a new trial." Gonzales, 593 S.W.2d at 291 (quoting Cartwright v. State, 80 Tenn. 620, 625 (1883)) (internal quotation marks omitted). If the State fails to satisfy its burden of showing that the separation did not result in ......
  • State v. Hilliard
    • United States
    • Court of Appeals of Arizona
    • July 22, 1982
    ...v. State, 73 Okl.Crim. 337, 121 P.2d 308 (1942).PENNSYLVANIA Commonwealth v. Knable, 369 Pa. 171, 85 A.2d 114 (1952).TENNESSEE Cartwright v. State, 80 Tenn. 620 (1883).TEXAS Rogers v. State, 118 Tex.Cr. 123, 38 S.W.2d 784 (1931) (prejudice apparently required).3 The per se rule is also cons......
  • State v. Stephenson, No. E2003-01091-CCA-R3-DD (TN 3/9/2005), E2003-01091-CCA-R3-DD.
    • United States
    • Supreme Court of Tennessee
    • March 9, 2005
    ...such separation afforded no such opportunity, there can be no cause for a new trial.'" Gonzales, 593 S.W.2d at 291, quoting Cartwright v. State, 80 Tenn. 620 (1883). The burden is on the State to offer a satisfactory explanation as to why there was a jury separation and that the separated j......
  • Request a trial to view additional results

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