Goad v. State

• Decision Date: 22 December 1900
• Citation: Goad v. State, 61 S.W. 79, 106 Tenn. 175 (Tenn. 1900)
• Parties: GOAD v. STATE.
• Court: Tennessee Supreme Court

61 S.W. 79

GOAD v. STATE.

Supreme Court of Tennessee.

December 22, 1900.

Appeal from circuit court, Macon county; William T. Smith, Judge.

J. W. Goad was convicted of perjury, and he appeals. Reversed.

I. L. Roark and T. E. Faust, for appellant.

WILKES, J.

Defendant is convicted of perjury, and sentenced to the penitentiary for three years, and has appealed.

It is said in his behalf that a new trial should have been granted because one of the jurors who tried the case was incompetent. It appears from the sworn statement of Elijah Snider, the objectionable juror, that he was convicted in the federal court at Nashville of robbing the mail while he was a mail carrier. No record of his conviction nor of the sentence upon it was produced. The affidavit states that he was sent to a reformatory school in New York for the offense, being at the time about 17 years of age, and that it had been 7 years since he was discharged. This is not sufficient ground for reversal. It does not appear that this conviction for robbing the mails carries with it under the federal statute a sentence of infamy, nor that one was pronounced by the court. The fact of the conviction is not shown by the record of the federal court, nor is the character and extent of the sentence. It does not appear that Snider was sentenced to the penitentiary; on the contrary, it appears he was sent to a reformatory school. The objection was not made until after verdict. It is an objection "propter defectum," and must have been made before the verdict, and ignorance of the fact does not excuse the omission. McClure v. State, 1 Yerg. 206; Cartwright v. State, 12 Lea, 620; Draper v. State, 4 Baxt. 246; Gillespie v. State, 8 Yerg. 507; Hamilton v. State, 101 Tenn. 418, 47 S. W. 695; Givens v. State, 103 Tenn. 666, 55 S. W. 1107.

It is said that the evidence in the case does not warrant the conviction, because the matter sworn to was not material to the issues involved in the suit in which the affidavit was made, and because the swearing was not corruptly or knowingly false, but was simply a mistake of law upon the defendant's part. It appears that one Lyle had sold the defendant a half interest in a saw-mill; that he gave his notes for the same, and a lien was retained on the half interest to secure the notes. Lyle filed a bill to obtain judgment on these notes, and to subject the half interest in the mill, and did recover judgment for $482.66; but the decree ordered the entire mill in question to be sold to satisfy the judgment. This seems to have been done by agreement. The mill was sold, but when, and for how much, does not appear. An execution issued for the balance not paid from its proceeds, and was levied on a one-fifth interest of defendant, Goad, in another tract of land. It was sold, and deed made to Lyle. Thereupon Lyle, Wood, and Sullivan filed a bill to partition this land, and to set aside as fraudulent a deed made by...