Clark v. State

• Decision Date: 02 May 1936
• Citation: 97 S.W.2d 644
• Parties: CLARK v. STATE.
• Court: Tennessee Supreme Court

Page 644

97 S.W.2d 644

CLARK v. STATE.

Supreme Court of Tennessee.

May 2, 1936.

Error to Criminal Court, Shelby County; Phil Wallace, Judge.

Warner L. Clark and others were indicted and tried on charges of embezzlement, larceny, etc. A mistrial was declared. To review an order sustaining a demurrer to defendant Clark's motion to reassemble the jury after discharge and separation for purpose of amending and correcting their verdict, defendant Clark brings certiorari.

Petition for certiorari dismissed.

Galloway & Galloway, of Memphis, for plaintiff in error.

Nat Tipton, of Nashville, for defendant in error.

CHAMBLISS, Justice.

Here on petition for certiorari to the criminal court of Shelby county, the question presented has invoked most pains-taking consideration, because both of its novelty, and the plausibility of the appeal made to the court's sense of practical justice. Petitioner Clark, clerk of the city court of Memphis, was indicted and tried with three others, the city judge and two lawyers, on charges of embezzlement, larceny, etc. The trial began in June and ran to the middle of August. After deliberating for 36 hours, the jury came into court, on the 15th day of August, 1935, and the following occurred:

"The jury, aforesaid, reported to the Court on the morning of August 15th, 1935, that it was hopelessly hung and that it was both a moral and physical impossibility to agree on a verdict.

"The Court, in the absence of the jury, inquired of the defendants, who were personally present in court and represented by counsel, if they desired that the jury be held together for a longer period of time, to which respective counsel replied they did not. The jury being recalled to the court room was then polled by the Judge, each Juror being asked the specific question if he thought a verdict might be reached upon further deliberations, to which question each Juror replied in the negative.

"It appearing to the Court that the Jury, aforesaid, having had ample time upon which to consider the case and being of the opinion that it was both a moral and physical impossibility for them to agree on a verdict and that it is useless to hold them together for further deliberations,

"It is ordered by the Court that a juror be withdrawn (?) and a mistrial entered, which is accordingly done.

"Whereupon court adjourned until tomorrow morning at 9:30 o'clock."

The minutes next show the following entry on Saturday, August 17th, two days later:

                "State of Tennessee
                  vs
                W. L. Clark
                

"Comes the defendant in above cause, by counsel of record and files in open court motion to re-assemble jury and write a verdict of Not Guilty as to defendant and affidavits of jurors and W. L Clark and A. B. Galloway in support of said motion."

This motion was heard and a demurrer thereto sustained on September 11th. An appeal was prayed and denied, but leave was granted to file a wayside bill of exceptions, which was done, and thereupon a petition for certiorari and supersedeas was presented to and granted by a member of this court and argument has been heard.

The case for petitioner is clearly set forth in his motion, sworn to on the 13th of August, 1935, reading as follows:

"Comes now the defendant, W. L. Clark, and would show to the Court that the jury selected and sworn to try this cause, after due consideration, unanimously voted to acquit this defendant, but that due to the fact that said jury misconstrued the instructions and charge of this Honorable Court, they were laboring under the impression that they could not return a verdict of not guilty for the defendant W. L. Clark if they disagreed on a verdict regarding his co-defendants.

"This defendant would further show that said jury did, in fact, disagree as to the guilt or innocence of his co-defendants and, because of this fact, notwithstanding they had unanimously voted to acquit this defendant, they did not return a true verdict into court reflecting said fact, as they had a right to do, and defendant alleges that the only reason a verdict of acquittal was not returned in his behalf by said jury was because the jury was laboring under the erroneous impression that they could not do so without making final disposition of the cases against his co-defendants.

"Defendant would further show to the Court that he has been tried, as required by law, on the indictment in this cause, and has, in truth and in fact, been acquitted of the charges against him by the unanimous vote of twelve (12) jurors; and alleges that if he is forced to go to trial again it will be in violation of his constitutional rights — that is to say, placing him in jeopardy for the second time for the same offense.

"In support of the facts herein alleged, this defendant attaches hereto as exhibits one to eleven, both inclusive, the affidavits of J. H. White, J. Malcolm Green, W. R. Walpole, M. V. Palvado, H. W. Cox, Major H. Martin, Edward W. Mathis, Samuel H. Hurdlow, Malcolm G. Gibson, Walter Delashmit, and W. F. Graham, being the identical eleven (11) men empaneled, and sworn to try this cause against him.

"Defendant further alleges that he was not apprised of the facts herein stated until after the jury had reported in this cause and had been discharged and disbanded; that they were discharged about 10:00 o'clock A. M. Aug. 15, 1935, and this defendant is filing this motion at the earliest possible time after being advised of the facts herein stated.

"Wherefore, Defendant prays:

"That said jury, whose names are given above, be re-assembled by this Honorable Court and directed to amend and make such change in their verdict as to the matter of form thereof so as to reflect their true decision; and that they be required to so amend or change their finding to read — `We, the jury, find the defendant, W. L. Clark, not guilty'; or, that the Court record the true verdict of the jury."

The demurrer, sustained by the trial judge, challenged the jurisdictional power of the court to reassemble the jury after discharge and separation, for the purpose of amending and correcting their verdict; and of the jury to amend or correct their verdict after discharge and separation. It was further asserted that jurors would not be heard to impeach their verdict or finding by averring that they misunderstood the court's charge.

It is conceded that the situation presented is anomalous, and that no precedent can be found for the action invoked by the motion. This is not of itself conclusive, for situations do arise in which justice calls for the cutting of new paths. It is well said that, "What is needed for the administration of the law is not a dead learning, nor a cult of the letter, nor excessive reverence for precedent. A reasonable administration of justice depends on payment of due regard to actual life and its circumstances." Science of Legal Method (volume IX, Modern Legal Philosophy Series, p. 87). And this court, speaking through Mr. Justice Cook, has recently said: "Rules of procedure are, of course, necessary, and they must be observed, but observance of an antiquated procedure is justified only as it is supported by reason. Observance of bare mechanical forms, the reason for which no longer exists, and not affecting the substantive rights of litigants, is no more justified in the administration of the business of courts than would be the application of an antiquated, inadaptable theory of architecture to a modern building problem. Procedural law must respond to rational administration." Manning v. State, 155 Tenn. 266, 292 S.W. 451, 454.

But, long-established precedents of substantive law and practice may not be lightly disregarded. Vital underlying principles are frequently involved which may not be departed from, even though isolated facts may apparently seem to justify such a departure. An invariably followed rule, supported not only by precedent, but the soundest reason, grounded on universal knowledge of human nature, is the rule that after the discharge of a jury in a felony case and the separation of the jurors to such a degree that outside contacts may have been even momentarily had, the members of that jury may not be reconvened for the taking of any action whatever involving the fate of the accused. It is hardly necessary to cite authority for so elementary a proposition, but see Long v. State, 132 Tenn. 649, 179 S.W. 315, which holds, and reviews our cases so holding, that separation of a jury in a felony case is a violation of constitutional guarantees of a fair and impartial trial by jury, and that even the consent of the accused will not warrant such separation under circumstances leaving the jurors free to form outside contacts. The recitals on the face of petitioner's motion clearly bring the case within this rule. Surely learned counsel for petitioner would not contend that a verdict of guilty, reported by a jury reconvened after discharge and such separation, as is shown by this petition, could be received and made effective by Court order. The rule must work both ways.

It is urged on the petition to this court that "it was a very short time" only, after the discharge of the jury, and that "all of the jurors had not left the Court building" when "counsel informed the Court as to this error of the foreman in reporting an erroneous finding of the jury." Neither exactly how long a time, nor how many had left the building, appears, but...