French v. State

• Decision Date: 20 July 1929
• Citation: 19 S.W.2d 276,159 Tenn. 451
• Parties: FRENCH v. STATE.
• Court: Tennessee Supreme Court

19 S.W.2d 276

159 Tenn. 451

FRENCH v. STATE.

Supreme Court of Tennessee.

July 20, 1929

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

L. T French was convicted of possessing whisky, and he appeals.Affirmed.

J. C R. McCall, of Huntingdon, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

SWIGGART J.

This is an appeal by the plaintiff in error, L. T. French, from a judgment rendered by the circuit court of Carroll county upon a conviction for possessing whisky.The jury fixed the fine of the plaintiff in error at $125, to which the trial judge added a sentence to the workhouse of 30 days.

Assignments of error of a technical nature are based upon the action of the trial judge in overruling a motion in arrest of judgment.

The indictment contained three counts, the first and third of which charged the plaintiff in error with unlawfully receiving and transporting intoxicating liquor.The second count contained the charge that the plaintiff in error "did unlawfully possess intoxicating received after March 1, 1917."This count, by an obvious clerical error, omitted the word "liquor" after the word intoxicating.

There was no motion to quash the second count, and the plaintiff in error went to trial upon a general plea of not guilty.The jury returned a special verdict finding the plaintiff in error guilty "of the unlawful possession of intoxicating liquor," which is to be referred to the second count of the indictment.

By motion in arrest of judgment it was contended for the plaintiff in error that the second count of the indictment charged no offense, on account of the omission above pointed out.It is also contended that the verdict cannot stand because it is only an offense to possess whisky received after the enactment of the statute of 1917(Pub. Acts)chapter 12, and the special verdict operates as an acquittal of the charge of receiving intoxicating liquor under the first count of the indictment.

Regardless of whether the omission of the word "liquor" in the second count would have been supplied from the context, as an obvious clerical error, if the plaintiff in error had pointed out the omission by motion to quash before pleading to the merits, as to which it is not deemed necessary to determine, we are of the opinion that the omission was one which was cured by the verdict.The omission in an indictment of an averment of substance, essential to the definition of the offense charged, may be cured by verdict, if the issue on defendant's plea be such as necessarily to require proof of the facts omitted as a condition precedent to the verdict of conviction returned by the jury.Whim v. State,117 Tenn. 94, 94 S.W. 674;Freeman v. State,118 Tenn. 95, 100 S.W. 723.

A special verdict upon a single count of an indictment is given the effect of an acquittal upon the counts to which the jury did not respond, to the extent that the accused may not again be put to trial upon such other counts; but we are cited to no authority which would give to a special verdict the effect of a negative finding by the jury on facts essential to a conviction under the count to which the special verdict is responsive, because such facts are also averred in counts to which the jury did not respond.

The charge of the trial judge to the jury in the present case was not made a part of the bill of exceptions.The presumption is, therefore, that the jury were correctly instructed that to convict the plaintiff in error of possessing whisky the evidence must convince them beyond a reasonable doubt that the whisky in the possession of the plaintiff in error was received by him since the enactment of the statute of 1917.Temple v. State,127 Tenn. 429, 155 S.W. 388;Matlock v. State,155 Tenn. 624, 299 S.W. 796.The verdict of guilty under the second count is therefore an affirmative finding by the jury of all the essential elements of the offense therein charged; and this finding of the jury is not impaired nor weakened by the failure to convict under the receiving count.

Questions incident to the return of a special verdict...