Durham v. State

• Decision Date: 09 June 1945
• Citation: 188 S.W.2d 555
• Parties: DURHAM v. STATE.
• Court: Tennessee Supreme Court

188 S.W.2d 555

DURHAM v. STATE.

Supreme Court of Tennessee.

June 9, 1945.

Error to Criminal Court, Sumner County; Dancey Fort, Judge.

George Durham, Jr., was convicted of rape, and he brings error.

Reversed and remanded.

J. T. Durham, Luther Creasy, and J. W. Murrey, all of Gallatin, and Hilldrop & Mayfield, of Nashville, for plaintiff in error, defendant below.

Ernest F. Smith, Asst. Atty. Gen., for the State.

CHAMBLISS, Justice.

This appeal is from a conviction of rape with a prison sentence of twenty years. Durham was eighteen years of age, resided with his parents in Gallatin and held a position of trust with the Railway Express. His previous record is clear.

The young woman is of the same age, was employed as a waitress in a Gallatin cafe and her reputation was good. She testified she left the cafe about 10:15 p. m. January 14, 1944, and while walking to her rooming house, a short distance away, at a point within one block of the police station, a young man, with whom she was not acquainted, whose name she did not know, but she said she had seen before, sitting in a black Ford pick up truck at the curb, invited her to enter and ride to her room, which she did, after some hesitation; that he then suggested they go for a soft drink and they went first to one place and then to another where she was served with ice cream and he a soft drink; that he then drove her out a highway to a crossroad intersection where he turned in and then forcibly violated her; that they returned to town where she escaped from the truck and related her story to police officers and gave them a description of her assailant. (It should be here mentioned that the account given by the young woman on the stand of her entering the truck differed radically from that given by her to the officers, in this, that she told the officers she was seized and forced into the truck by the defendant, who then drove directly out into the country with her.) It was then 11:00 p. m. After some inquiry and delay the officers went to the Durham home where they found the defendant in bed. He was identified by the young woman and arrested. He had visited that evening a Miss Dodds, a young Gallatin woman of good standing, (to whom he was later married) and had left her home in a green Chevrolet truck about 10:15. He says he stopped a few minutes en route to get a sandwich and reached home at 10:30 and produces witnesses who so attest.

The defendant denies participation in or knowledge of the offense and says he never saw the young woman who accuses him before. He relies on an alibi, his established good character, contradictions and inconsistencies in the State's proof of identification of himself and the truck, and improbabilities in the proven time element.

A number of errors have been assigned directed to the evidence of identification particularly, the admission of testimony, inadequacy of the charge, passion and prejudice, and challenging the competency of jurors on the ground of partiality and bias — sitting in violation of the constitutional right of the accused to a fair trial by an impartial jury.

In view of the disposition which, as will be seen, we have found it necessary to make of this appeal, we shall not discuss in further detail the evidence, or announce any conclusion with respect thereto. The outline above given will suffice to show the gravity of the case and that the vital issue of identification is at least not free from doubt. Passing by other questions we consider the challenges to the competency of certain jurors.

On the motion for a new trial the fitness of two jurors was challenged, one, Walter Riggsbee for mental competency. It was shown and apparently conceded that he had been at one time adjudged insane, had been confined in a state institution for the insane, and his adjudged disability had never been removed. However, it was shown, without contradiction, that he had been out of the asylum for a number of years, was quite apparently restored to normalcy, had engaged in business pursuits and enjoyed the confidence of those who knew him. This was attested by his physician, banker and others. There is no charge or showing that he was not an impartial juror. This challenge came too late. Objections based on general disqualifications, such as age, residence, relationship, feeble mindedness and the like are of the propter defectum class, to which the rule applies that the challenge shall be made before verdict. This is the general rule and has been declared in numerous of our cases, among these being Walker v. State, 118 Tenn. 375, 99 S.W. 366; Monday v. State, 160 Tenn. 258, 23 S.W.2d 656; Hamilton v. State, 101 Tenn. 417, 47 S.W. 695; Cartwright v. State, 80 Tenn. 620. In the last named case the Court pointed out the distinction between those cases where the juror is found to have been incompetent propter defectum, as for relationship, etc., and where he is found to have been incompetent because he had prejudged the case, when a different rule applies as to the time of challenge.

Conceding that one who had been at one time adjudged insane, and confined for years on this ground, might well be rejected for service as a juror to try a case calculated to stir the passions and disturb the mental equilibrium of men, the challenge must be presented upon his voir dire examination.

Complaint of the other juror, E. L. Meador, was upon two distinct grounds, first because, as shown, he had some years before been convicted of a felony and adjudged infamous. However, the record was made to show that later, and some years before the trial of the instant case, his disability had been removed by a court judgment. Here, again, the challenge was of the propter defectum class and comes too late. This complaint did not charge impartiality, did not tend to establish that this juror was prejudiced, or had prejudged the case.

But, with respect to this same juror, the challenge went further and presented a ground which seems to us to fall clearly within the propter affectum class, to which, as recognized by our decisions, a different rule applies. When it appears that the constitutional right to trial before an impartial jury is invaded (Const. Art. I, Sec. 9), the challenge must be heeded, even though not made until after verdict. Certainly when the facts were previously concealed from the defendant, and ignorance was reasonably excusable, as we find here.

In Monday v. State, supra, after reviewing our cases and applying the rule established thereby as to disqualifications of the propter defectum class, the Court added:

"It is true that numerous cases hold that, where some particular disqualification of a juror was unknown to the defendant and his attorney at the time of the jury's selection, objection may properly be heard even after verdict, but examination of these cases reveals that in such instances the objection allowed to be made after the impaneling of the jury touched the objectionable juror's partiality and was not merely propter defectum." (page 265 of 160 Tenn., page 658 of 23 S.W.2d).

The affidavits of defendant and his counsel, supported by exhibited court records, show that juror Meador was prosecutor in the same Sumner County court in a prosecution for assault with intent to rape, an offense of the like heinous nature of which the defendant in the instant case stood charged. It appeared that the prosecution had been begun some years before; that when then called for trial the defendant had interposed the defense of present insanity, had been so adjudged and remanded to a state institution for the insane to be returned to the Sumner court for trial if and when he recovered his sanity; that in 1940 he was returned and arraigned; that the case was continued several terms and, in the fall of 1940 (about three years before the offense in the instant case was committed) for reasons unexplained, the case was placed on the retired docket, and that this was its status when the instant case was called for trial. These facts appear to be undisputed.

Meador was asked on his voir dire examination, "what experience have you ever had in court?", and answered, "none, except that I was called as a juror at this term of court in the case of State v. Ray Dean and excused by the court." As above shown, Meador had had at least two experiences in court of exceptional character. In one case he had been a defendant, found guilty and served a term in prison; in the other as prosecutor on an indictment for a grave offense with an extreme penalty of twenty-one years, of a character similar to that of the case he had been called to try as a juror. His answer was patently false, and must have been knowingly so. That for some reason which the State did not elect to disclose the active prosecution of this assault to rape case in which he was prosecutor was being for the time suspended, did not relieve him of the obligation to disclose his leading participation in it, in answer to the question put to him on his voir dire examination. It should be remarked that it is immaterial that his case was on the "retired" and not the trial, or appearance docket. See Riley v. Bussell, 48 Tenn. 294, 295; Murphy v. State, 77 Tenn. 373; Hunt v. State, 2 Shannon Cas. 395. And 35 C.J., 332-333 (n. 37-39), cites to the same effect Chicago, R. I. & P. R. Co. v. Downey, 85 Ill. App. 175; Plummer v. People, 74 Ill. 361. Our cases above cited not only hold that having a suit in the same court disqualifies for jury service, but that the statute excludes him whether his suit is for trial at that term or not.

Does there not arise on the facts above shown a legal presumption of the want of that impartiality which our constitutional requirement contemplates?

From 20 Words and Phrases, Perm. Ed., page 191, we take this definition: "The `impartial jury' guaranteed by constitutional provisions is one which is of impartial frame of mind at the beginning of trial, is...