Driscoll v. State

• Decision Date: 15 July 1950
• Citation: 191 Tenn. 186,27 Beeler 186,232 S.W.2d 28
• Parties: , 191 Tenn. 186 DRISCOLL v. STATE.
• Court: Tennessee Supreme Court

Page 28

232 S.W.2d 28

27 Beeler 186, 191 Tenn. 186

DRISCOLL v. STATE.

Supreme Court of Tennessee.

July 15, 1950.

Thomas Haile, Cookeville, for plaintiff in error.

Nat Tipton, Assistant Attorney General, for the State.

TOMLINSON, Justice.

This appeal is from a conviction of abduction of an eighteen year old girl who is named in the indictment for the purpose of prostitution, code section 10790, with the maximum punishment fixed at five years imprisonment.

After Driscoll had entered a plea of not guilty and the jury had been impaneled, he made a motion to quash the indictment because it failed (1) to charge that this girl was in the legal custody of her parents, or (2) that she was an unmarried person, or (3) that she was under twenty-one years of age. The action of the Court below in overruling this motion is assigned as error.

The statute which Driscoll is convicted of having violated does not recite that the abducted female must be an unmarried person and under twenty-one years of age. These are exceptions to the statute, and may be interposed as a matter of defense. However, in so far as the indictment is concerned, it is sufficient to charge the offense in the language of the statute. It is not necessary to aver such exceptions. Griffin v. State, 109 Tenn. 17, 70 S.W. 61.

The statute does expressly provide that the female must be taken from the person 'having the legal charge of her'. This indictment is defective, but not void, in that it omits the language just quoted and avers instead that Driscoll took this daughter 'from her father' etc. The question is whether the defect was waived by delaying the making of the motion to quash until after a plea of not guilty and the impaneling of the jury.

It is a settled rule that where the defendant pleads to the indictment and goes to trial upon the merits the defect is cured by the verdict. Pope v. State, 149 Tenn. 176, 179, 258 S.W. 775. We have been unable to find any case in our reports where the motion to quash was made before the taking of evidence was commenced, but after the plea of guilty had been entered and the jury impaneled. The weight of authority, however, seems to be that a motion coming at this time is too late where the complaint is made as to a defective statement of an accusation in the indictment, rather than as to an indictment which charges no offense. 27 American Jurisprudence, 732-733. 42 Corpus Juris Secundum, Indictments and Informations § 199, page 1169. The exact question arose in the North Carolina case of State v. Gibson, 221 N.C. 252, 20 S.E.2d 51. There the Court held that a motion to quash 'made by a defendant after defendant had pleaded not guilty and after the jury had been selected and impaneled' came too late, or rather, that it was a matter within the discretion of the trial judge with the exercise of such discretion not reversible on appeal. We think this holding is a correct statement of the law, and so hold.

At the close of the State's evidence there was a request by the Attorney General that this girl be allowed to remain in the Courtroom during the presentation of the defendant's evidence. The action of the Court in permitting this over the objection of the defendant is assigned as error. She was never recalled as a witness. Therefore, in any view of the matter, this did not prejudice the defendant.

There appears in the record the affidavit of one Eugene Dillon said to have been filed in support of the motion for a new trial and alleged to have been evidence which was not within the knowledge of the defendant or his attorneys until some time after the trial. In that affidavit Dillon states that he became acquainted with this girl in the autumn of 1948 and went with her on several occasions and had sexual intercourse with her on each of these occasions, except one. It is insisted that a new trial should be granted because of this newly discovered evidence.

The Dillon affidavit is not made a part of the bill of exceptions but does appear in the record. When an affidavit is not made a part of the bill of exceptions though copied into the record it cannot be considered on the appeal for any purpose. Faust v. Echols, 44 Tenn. 397; Holder v. State, 119 Tenn. 178, 228, 104 S.W. 225.

The insistence as to improper prejudicial argument by special counsel assisting the Attorney General cannot be considered because no part of that argument appears any where in the bill of exceptions.

Considering next the insistence that the evidence preponderates against the verdict, it is clearly shown and without dispute that in the very late afternoon of January 18, 1949 plaintiff in error and this girl left her father's home near Cookeville in his car and drove to a cabin beyond Knoxville where they spent the night and then went into North Carolina and Georgia and back into Putnam County where at a point a few miles from Cookeville she was let out of his car on the highway near the home of a relative by marriage. They were gone for two days and during this time engaged in a number of acts of sexual intercourse, according to the testimony of the girl. This trip was taken without the consent or knowledge of her parents with whom she was living at the time.

Plaintiff in error did not testify. The defense made in his behalf was that this girl was not living a chaste and virtuous life at that time, and that insistence is made on this appeal.

The girl testifies that she had never met Driscoll until the day in question, but that she had seen him once at her father's home where he had gone for the purpose of transacting some business with her brother. She says that on the day of the evening that she started this trip with him he came to the laundry where she had been working for two years and said to her that he had in mind an office job which he could procure for her, and proposed to take her that day for a conference with the person who was...