Coleman v. State

• Decision Date: 10 October 1908
• Parties: COLEMAN v. STATE.
• Court: Tennessee Supreme Court

113 S.W. 1045

121 Tenn. 1

COLEMAN v. STATE.

Supreme Court of Tennessee.

October 10, 1908

Error to Criminal Court, Hamilton County; S.D. McReynolds, Judge.

B. F Coleman was convicted of contempt of court, and brings error. Judgment corrected and affirmed.

Clift & Cooke, Latimore & Whitaker, and Sam H. Ford, for plaintiff in error.

Chas T. Cates, Jr., Atty. Gen., and J. H. Earl, for the State.

NEIL J.

The plaintiff in error was proceeded against in the criminal court of Hamilton county for contempt, was convicted in each of the three cases, fined $50, and sentenced to 10 days' confinement in the county jail. From each of these judgments he has appealed to this court and assigned errors. The facts upon which the arrests were predicated were developed by three persons summoned as jurors, while they were being examined upon their voir dire.

One of the talesmen, Mr. Thatcher, testified that one Sam Hutchinson saw him as representative of the plaintiff in error, after he had been summoned, and said: "Frank Coleman wants you on his jury; didn't have 'nary' friend on the other jury"--and that he took Thatcher to be his friend.

Hutchinson testified that he had been sent by Coleman to interview Thatcher. He testified as follows: "Well, he [Coleman] wanted me to go and see Thatcher, and see whether he was his friend or his enemy. If he was his enemy, he didn't want him on his jury. If he was his friend, he wanted him on it."

Mr Bandy, another talesman, testified that on the day before Coleman's case was tried the following occurred:

"We met Mr. Coleman. I spoke to him, and he asked me if I was on the jury. I replied that I was. We walked on down the street, and Mr. Coleman went with us. We went down to Seventh street, and Mr. Coleman suggested that we take a glass of beer. We took a glass of beer, and then we went down towards Market street. Coleman said to me: 'My case comes up tomorrow, and I would like to have you on my jury.' I said: 'I have known you 26 or 27 years, and they won't have me.' He said: 'If Whitaker [the Attorney General] takes you, we will.' He remarked that I ought to be willing to help a man in a tight. I said I would rather not sit in the case. He said: 'You haven't formed any opinion in the case, have you?' And I said: 'No.' I don't remember just exactly how I expressed myself, but he remarked that he didn't want me to do anything wrong. Q. What did he say with reference to not letting the court find out how long he had known you? A. I believe he made the remark that I didn't have to tell that unless I was asked."

The third talesman, J. R. Wooden, testified that after he had been summoned on the jury Coleman had the following talk with him: "He said Martin was on the jury before. He said he was a pretty good friend of his. He said that he had known him so long that they wouldn't have him on his jury.

*** He said he would like to have me on his jury. He said he had known me a good bit." He further said that Coleman told him not to tell the judge how long he had known him. He also told the juror that he had only one friend on the other list, and the Attorney General objected to him; that he then told the witness that he need not tell how long he had known him (plaintiff in error).

These conversations had with the three talesmen were first disclosed by them when they were examined for service on the jury. They were not taken upon the jury, and of course were not members of it when plaintiff in error's case was tried.

Subsequently, when the present proceeding was begun against Coleman, the witnesses were examined and gave testimony in the three cases as above indicated.

Before this testimony was offered, the plaintiff in error filed a sworn answer, or return, to the attachment for contempt, in which, after denying guilt in general terms, he proceeded with the following special denial:

"He denies that he in any way undertook to, or tried in any manner to, influence any one of said persons summoned as jurors from attending said court, or obeying the summons to attend, or that he tried to influence them to attend, or that he in any other way knowingly, intentionally, or willfully interfered with the process or proceedings of the court.

"He denies that he willfully, unlawfully, or corruptly conversed with, or tampered with, said parties, or either of them, as jurors, or said anything to them, or either of them, for the purpose of influencing their verdict, or that of either of them, in the trial of his case, or authorized or procured any one else to do so in his behalf.

"He denies that he discussed the facts or circumstances of his case with either of said jurors, or had another to do it for him, or that he detailed the circumstances which brought about the indictment and prosecution against him. When the fact was casually mentioned that they were jurors, or might be jurors, he expressed himself as being pleased, doing so because they knew him, and he knew them to be fair and just men, and was willing to trust his case in their hands. He was confident of his innocence, and always felt and believed that he would finally be acquitted of the charge against him, and he was acquitted, and neither of the said parties was on the jury trying his case; and to secure his acquittal he never in any wise attempted to influence any prospective jurors by corrupt inducements, or by any other means. He positively denies that he said anything to them, or any one of them, as to the character of the verdict he desired or expected, or that he had any idea that any casual remark made could or would influence the action of any juror, or affect the proceedings of the court in any way. If the simple statement that he would like for them to be on the jury was wrong, it was an unintentional wrong. He did not know or think that it was wrong, and had no thought that it could affect in any wise any verdict that might be obtained in court, and that he did not say it with the intention that it should have that effect.

"He avers that he has the highest respect for this honorable court, and its process and proceedings, and would not intentionally, knowingly, or willfully do anything to interfere therewith."

In the court below, when the above testimony was offered, the plaintiff in error objected to the introduction of evidence on the ground that by the above-mentioned sworn answer he had purged himself of the contempt, if he had been guilty of any, and that witnesses could not be introduced to inquire into the matter. It is now assigned for reversal that the circuit judge committed error in declining to sustain this objection and in subsequently hearing the evidence above set forth.

It is stated in Underwood's Case, 2 Humph. 46, that in a case at common law the defendant will be discharged if by his answer to interrogatories filed he make such a statement as will free him from imputed contempt; but in cases in chancery the truth of defendant's statement in reply to interrogatories filed may be controverted on the other side, and the whole matter be inquired into and ascertained by the court.

The case referred to was in chancery; likewise the case of Rutherford v. Metcalf, 5 Hayw. 58, upon the same subject. However, the rule at common law is correctly stated (and see note to Warner v. Martin, 4 Am. & Eng. Ann. Cas. 183, 184); still in this state the common-law rule has fallen into desuetude, as indicated by two recent cases. Scott & Light v. State, 109 Tenn. 390, 71 S.W. 824; Rickets v. State, 111 Tenn. 380, 77 S.W. 1076; and other Tennessee cases referred to infra. The question was not discussed in any of these cases, but evidence was heard in all of them.

The same question arose recently in the Supreme Court of the United States, in the case of U.S. v. Shipp, 203 U.S. 565, 27 S.Ct. 165, 51 L.Ed. 319.

In the case referred to defendant filed a sworn answer denying the contempt, and it was insisted that this was conclusive. Responding to this suggestion the court said:

"On this occasion we shall not go into the history of the notion. It may be that it was an intrusion or perversion of the canon law, and is suggested by propounding of interrogatories, and the very phrase 'purgation by oath' (juramentum purgatorium). If so, it is a fragment of a system of proof which does not prevail, in theory or as a whole; and the reason why it has

not disappeared perhaps may be found in the...