East v. State
| Decision Date | 11 March 1955 |
| Citation | 197 Tenn. 644,1 McCanless 644,277 S.W.2d 361 |
| Parties | Herlon EAST v. STATE of Tennessee. 1 McCanless 644, 197 Tenn. 644, 277 S.W.2d 361 |
| Court | Tennessee Supreme Court |
J. C. McMurtry, Gallatin, for plaintiff.
Knox Bigham, Asst. Atty. Gen., for the State.
The defendant appeals from a conviction of petit larceny with the punishment fixed at a six-months jail sentence and he has appealed.
On the night of November 3, 1953, the Hartsville Ice Plant was broken into and a number of articles were stolen. A cigarette jar was found in the ball-park and the finger prints on this jar corresponded with the finger prints of the defendant. The jar was identified by the owner as having a broken top. The Sheriff testified that he saw the defendant in the vicinity of the premises on the night the break-in occurred. This made a prima facie case of guilt and the defendant offered no evidence in his own behalf.
We think the assignments relating to the question whether the evidence preponderates against the verdict must be overruled.
The defendant filed a plea of misnomer to the effect that while the indictment was against Helon East, his true name was Hurlin. Clearly, it was not error to overrule this plea because the two names are idem sonans. See Goodwin v. State, 148 Tenn. 682, 257 S.W. 79.
Another assignment is the alleged error in overruling his plea in abatement based upon the ground that one of the grand jurors who found the indictment against him was a minister of the Gospel and, therefore, exempt from jury service under Code Sec. 10010. There is no merit in this insistence because the exemptions provided under said Code section are personal to the individual and may be either claimed or waived by that individual only. It is a personal privilege but not a disqualification.
Another assignment is that defendant's constitutional rights were violated in that evidence of the taking of his finger prints was permitted to go to the jury. It appears from the testimony of the Sheriff that after he was informed of the robbery he, in company with a Deputy Sheriff and two Highway Patrolmen, went to the home of defendant near Hartsville around noon, where they found defendant in bed. When they informed the defendant of the object of their visit he insisted that they have a warrant. The Sheriff had a warrant which had been filled out but had not been signed by any magistrate, so the Sheriff signed the warrant in order to satisfy the defendant. He was then taken into custody and turned over by the Sheriff to the two Highway Patrolmen who put him in their car and drove to another county where they paid a social visit while they left the defendant sitting in the car handcuffed. Afterwards they drove to Lebanon in Wilson County, where they took the finger prints of defendant and then placed him in the jail at Lebanon.
It is said in the brief in behalf of defendant that the defendant was held from Wednesday until Saturday before he was brought before a magistrate. The record shows, however, that the crime was committed on the night of November 3, 1953, that defendant was taken into custody about noon on the next day, the 4th, and that he was taken before a magistrate on November 5th, after which hearing he was bound over to the grand jury. It seems to be admitted that he was taken into custody without a valid warrant properly signed by a magistrate and that he was placed in jail in Lebanon without a mittimus and that his attorney was on the point of petitioning for a writ of habeas corpus when the Sheriff agreed to have him present before the magistrate on Saturday.
It is assigned as error that the Court allowed the expert evidence as to his finger prints as compared with those on the cigarette jar, improperly to be admitted into evidence because it was obtained in...
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