Goff v. State

• Decision Date: 28 February 1948
• Citation: 209 S.W.2d 13,186 Tenn. 212
• Parties: GOFF v. STATE.
• Court: Tennessee Supreme Court

209 S.W.2d 13

186 Tenn. 212

GOFF v. STATE.

Supreme Court of Tennessee.

February 28, 1948

Error to Criminal Court, White County; John A. Mitchell, Judge.

Jim Goff was convicted upon a presentment charging that he engaged on Sunday in his ordinary vocation of operating a poolroom, and he brings error.

Judgment reversed and presentment quashed.

Malcolm C. Hill, of Sparta, for plaintiff in error.

J Malcolm Shull, Asst. Atty. Gen., for the State.

TOMLINSON Justice.

The presentment upon which plaintiff in error, Jim Goff, was put to trial and convicted in this case charges the following offense, to-wit, that 'on or about the 19th day of May 1946 in the County and State aforesaid, did unlawfully and wilfully follow and engage in his usual and ordinary vocation, namely the operation of a certain poolroom in the community of Doyle, in White County, Tennessee, on Sunday against the peace and dignity of the State.'

The appeal is here upon the technical record. Based upon that record, it is insisted that the conviction is not authorized as a matter of law because (1) 'the presentment does not allege a common law offense, and therefore, no fine could be imposed thereunder,' and (2) 'the presentment is apparently based upon an alleged violation of Section 5253 of the Code of Tennessee, 1932, which provides only for a forfeiture.'

Perhaps the merits of these two insistences will be the better understood by here quoting Code Section 5253 reading as follows: 'If any person shall be guilty of exercising any of the common vocations of life, or of causing or permitting the same to be done by his children or servants, acts of real necessity or charity excepted, on Sunday, he shall, on due conviction thereof before any justice of the peace of the county, forfeit and pay ten dollars, one-half to the person who will sue for the same, the other half for the use of the county.'

A single violation of this Code Section 5253 makes the offender liable only to the penalty prescribed, to-wit, a forfeiture of ten dollars. Parker v. State, 84 Tenn. 476, 480, 1 S.W. 202; Graham v. State, 134 Tenn. 285, 291, 183 S.W. 983. Therefore, no criminal action can be predicated upon a single violation of the statute. Murphy v. State, 114 Tenn. 531, 533, 86 S.W. 711. Such single violation is not indictable or presentable as a misdemeanor. State ex rel. v. Nashville Baseball Club, 127 Tenn. 292, 310, 154 S.W. 1151, Ann.Cas.1914B, 1243.

The presentment in this case charges only a single violation of Code Section 5253. This presentment cannot, therefore, be authorized solely by force of Code Section 5253. Therefore, if this presentment is at all authorized it is by virtue of the common law, there being no other applicable statute.

The common law offense of exercising a common vocation of life on Sunday is not committed until it is carried on to such an extent as to create a nuisance. State ex rel. v. Nashville Baseball Club, supra. It is the succession or continuation of such act on divers Sundays that makes it a nuisance so as to be indictable as a common law offense. Parker v. State, supra; Graham v. State, supra.

The indictment in this case does not allege that the prohibited act was committed on divers Sundays but alleges only that it was committed on one particular Sunday. Further, this indictment does not allege that...