Crosswy v. State

• Decision Date: 16 July 1928
• Citation: 8 S.W.2d 486,157 Tenn. 363
• Parties: CROSSWY v. STATE.
• Court: Tennessee Supreme Court

8 S.W.2d 486

157 Tenn. 363

CROSSWY v. STATE.

Supreme Court of Tennessee.

July 16, 1928

Appeal from Circuit Court, Henry County; W. W. Bond, Judge.

J. A Crosswy was convicted of driving an automobile upon a public highway while under the influence of intoxicating liquor, and he appeals. Judgment modified, corrected, reformed, and affirmed.

Lewis & Rhodes, of Paris, for appellant.

W. F Barry, Jr., Atty. Gen., for the State.

TIMBERLAKE Special Justice.

This case is before us upon the appeal of the plaintiff in error from a judgment of the circuit court for Henry county at its November term, 1927, sentencing him to the county workhouse for a period of 45 days and adjudging that he pay the cost of the case.

The presentment was found by the grand jury at the same term of court at which trial was had, and (omitting formal parts) charges that J. A. Crosswy on the ------ day of August, 1927 in the county of Henry, state of Tennessee, "then and there unlawfully did drive a motor-driven vehicle upon the public highways of said state, he being then and there under the influence of an intoxicant, against the peace and dignity of the state."

The record shows that the presentment aforesaid was returned into open court on Tuesday, November 15, 1927, and that trial was had on the following Monday, November 21st. Between said dates defendant made an application for a continuance based upon his own affidavit, which was sworn to on November 17 1927, before the clerk of the court, and is by the bill of exceptions shown to have been as follows:

"The defendant, J. A. Crosswy, makes oath and say he cannot go safely to trial at this term of court without the testimony of D. I. Martin; that the defendant was just indicted on Tuesday afternoon of this week; that he immediately caused a subp na to be issued for said witness, whose home is now in Memphis, Tennessee, and sent said subp na to the sheriff of Shelby county. He does not know, and has no means of knowing, whether said subp na has been executed or not.

That said D. I. Martin is absent without his consent or procurement; that if he were here, he would testify that he was in the crowd and saw an officer arrest Crosswy; that he immediately got in the car with Mr. Crosswy, and they drove two blocks together; that he talked with him about his being arrested, and that Mr. Crosswy was not drunk nor under the influence of any intoxicant, and that he had no odor of intoxicating liquor upon his breath; that he knows Mr. Crosswy, and has known him for years, and would have known if he was under the influence of an intoxicant had he been so.

The defendant knows of no other witness by whom he can prove this fact. He knows of no other witness who had the same opportunity to test his being under the influence of liquor after he was arrested.

The defendant says he is not guilty as charged in this indictment, and that he can and will have the said witness present at the next term of this court, if a continuance is had; that this continuance is asked not for delay, but that justice may be had and done.

[Signed] J. A. Crosswy.

Sworn to and subscribed before me, this November 17, 1927.

[Signed] I. H. Dale, Clerk."

While there is no definite showing made as to the date upon which the application for a continuance was first presented and acted upon by the trial judge, yet it is fairly inferable, from the date the affidavit was sworn to and the recitations immediately following in the bill of exceptions, that the first application for a continuance was on Thursday, November 17, 1927.

After setting forth defendant's affidavit aforesaid, it is then recited in the bill of exceptions, viz.:

"Thereupon the state's district attorney stated that this witness, D. I. Martin, was the same person who was indicted and convicted in Haywood county, Brownsville, Tenn., at the recent and last term of that court for driving a car while drunk, and that he swore there he was a resident of Paris, Tenn. It was also admitted there were numbers of other persons present, it being election day and a large crowd there. The court, however, passed the case for two days before trial after being called and motion to continue and affidavit heard.

At the expiration of two days, the case was again called, and same motion and affidavit for continuance made.

The same was overruled, to which the defendant excepted.

Said motion for continuance being read and understood by the court, the same was overruled and disallowed, to which action of the court in overruling said motion for continuance the defendant then and there excepted, and now excepts.

Plea in Abatement.

Thereupon the defendant, by his attorneys, presented his plea in abatement to the presentment in this cause, and the court having heard said plea in abatement read, and argument of counsel both for the state and the defendant, the court, on motion of the state through the District Attorney General to strike said plea, was of the opinion that said motion was well taken, and said motion was accordingly allowed; and to the action of the court in allowing said motion of the state to strike said plea in abatement, the defendant then and there excepted, and now excepts.

Said plea in abatement is in words and figures as follows, to wit:

'The defendant, for plea, says that the presentment in this case was not found upon the knowledge of the grand jury, or any member thereof, but that it was found upon the testimony of witnesses subp naed and examined by the grand jury, upon the assumption of inquisatorial power, when in reality no such power existed with respect to the offense charged, and the grand jury had no right to summons the witnesses until the Attorney General prepared an indictment, the prosecutor's name signed thereto, and marked the witnesses on the same, and that said presentment does not show any prosecutor's name marked thereon.

[Signed] J. A. Crosswy.

The defendant makes oath that the above plea is true in substance and in fact.

Sworn to and subscribed before me, this November 19, 1927.

[Signed] I. H. Dale, Circuit Court Clerk.'

Thereupon the defendant pleaded 'not guilty' to said presentment, and the following evidence was introduced in the trial of the cause."

The minute entry of Monday, November 21, 1927 (omitting style of case and notation as to the nature of the order) recites in part as follows, to wit:

"Came the Attorney General for the state and defendant in person and by attorney, who presented his plea in abatement to the presentment, and the state through the Attorney General moved the court to strike said plea in abatement, which motion was argued and understood by the court, and said motion was accordingly allowed, to which action of the court defendant excepted.

Thereupon defendant moved the court for a continuance of the cause and in support thereof read his application, which was in writing and was sworn to, and said motion for a continuance was by the court overruled, to which defendant excepted.

On motion of defendant said plea in abatement and motion for a continuance are ordered filed and made a part of the record in this cause.

Thereupon defendant plead not guilty to the presentment and put himself upon the country, and the state doth the like."

Defendant, having been found guilty by the trial jury, seasonably moved the court for a new trial, which being overruled, he then moved in arrest of judgment, which, also, being overruled and sentence pronounced he noted his exceptions to the action of the lower court, prayed and was granted an appeal in error to this court.

The first assignment of error is to the effect that there is...