Green v. State

• Decision Date: 25 January 1923
• Citation: 247 S.W. 84,147 Tenn. 299
• Parties: GREEN v. STATE.
• Court: Tennessee Supreme Court

247 S.W. 84

147 Tenn. 299

GREEN v. STATE.

Supreme Court of Tennessee.

January 25, 1923

Error to Circuit Court, Bledsoe County; J. T. Raulston, Judge.

Charlie Green was convicted of cutting timber from the lands of another, and brings error. Affirmed.

Wm. H Swiggart, Jr., Asst. Atty. Gen., for the State.

L. D SMITH, J.

The plaintiff was convicted of the offense of knowingly willfully, and maliciously cutting, for the purpose of marketing, timber upon the lands of another, without the owner's consent, in violation of chapter 106 of the Acts of 1897 (Shannon's Code, § 6503a1).

Error in the judgment of conviction is assigned here upon two grounds. In one assignment it is complained that the jurors in fact disagreed in the verdict, and that the jury were finally brought to an agreement by improper instructions from the court. The jury after consideration reported they could not agree, and, upon being asked by the court whether they disagreed upon the law or the facts, replied, "Upon the facts." The court then inquired of the parties whether they would agree for the witnesses to again be heard; the defendant declined. Thereupon the court directed the District Attorney General to state his insistence upon certain testimony. The defendant was given a similar opportunity, and he replied through his counsel that he understood the matter just the opposite from the Attorney General, but objected to a discussion thereof before the jury. Thereupon the jury retired and in a short time returned a verdict of guilty.

This assignment cannot be inquired into here. It could only form the basis for a new trial. While the record shows that a motion for new trial was made, it does not appear that it was based upon this particular matter. The record also discloses that a motion for new trial was coupled with a motion in arrest of judgment. Thereby the motion for new trial was waived. Palmer v. State, 121 Tenn. 489, 118 S.W 1022.

The other assignment of error is to the effect that the plaintiff in error was twice placed in jeopardy. When the facts constituting the basis of this contention developed in the trial, the plaintiff in error moved the court for a judgment of acquittal and discharge. The motion was overruled, and the trial of the plaintiff proceeded with, resulting in his conviction. We consider this sufficient to raise the question presented on its merits. The facts reflecting upon this question as they appear from the bill of exceptions are these: The jury was regularly selected, and among other jurors selected was one Thomas Pearson. Examination of the jurors upon voir dire developed that they were good and lawful men. The record recites:

"Said jury were then accepted by the state and the defendant to try the issues joined in the case, and the court ordered the jury sworn, which was done. Defendant entered his plea of not guilty to the indictment. After the jury was sworn, one of the jury, to wit, Thomas Pearson, arose from his place in the box and addressed the court and said, 'Judge, I don't [want] to sit in this case as a juror,' whereupon the court inquired, 'Why?' The juror said, 'I don't believe it is my duty to punish anybody for committing a crime. I don't believe that a Christian should have anything to do with punishing people, for that is God's business. If people commit crime, let God punish them.' Whereupon the court inquired, 'Do you mean to say that if the proof showed the man guilty as provided by law, that you would not convict him?' The juror said, 'That's right; let God punish him, and let the wicked punish the wicked.' Thereupon the court held that the juror was mentally incompetent to sit as a juror in the trial of a criminal case, and discharged this juror from the jury, and other jurors were drawn as provided by law until another good and lawful juror who was accepted by both sides was substituted in place of the one who had been discharged, and the jury was again sworn in the manner provided by law, and defendant thereupon excepted to the discharge of the juror as aforesaid, and moved the court that he be discharged, which motion was overruled by the court, and the trial proceeded in due and legal form."

The contention of the plaintiff in error is based upon section 10 of the Declaration of Rights, found in article 1 of our Constitution, that "no person shall, for the same offense, be twice put in jeopardy of life or limb." This provision of our Constitution comes to us by the way of the Fifth Amendment to the federal Constitution from the common law.

In its interpretation the courts have universally shown a determined purpose to protect the citizen against oppression and prosecution, even though thereby guilty persons might find a safe avenue of escape from just punishment.

An accused is in jeopardy, within the meaning of this provision of the Constitution, whenever he is put to trial in a court of competent jurisdiction, with a valid indictment and the plea thereto, has a jury sworn upon an issue to make deliverance, and the jury is charged with the deliverance of the accused, when he has been placed in the hands of the jury for trial; that is, when the jury is sworn to try the issue upon the indictment and the plea thereto, and before the reading of the indictment or the introduction of testimony. Ward v. State, 1 Humph. 260; Tommason v. State, 112 Tenn. 596, 79 S.W. 802.

While the courts have interpreted this provision of the Constitution with a view to the protection of the accused, they have not adhered to the literal meaning of the words. This is necessarily so, because, in the very nature of things, by reason of exigencies which arise in the progress of trials, the ends of justice would be defeated. So many proper exceptions to the general rule have, from the very beginning of its application in this country, and even before that in England, been taken as a part of the rule itself, and have been applied in cases of extreme absolute or manifest necessities, or when the ends of public justice might otherwise be defeated.

In the case of United States v. Perez, the prisoner was on trial for capital offense, and the jury, being unable to agree, were discharged by the court from giving any verdict, and without the consent of the prisoner. The prisoner, upon this, claimed his discharge as of right under the provisions of the federal Constitution which protected him from being put in jeopardy twice for the same offense. It was held that these facts constituted no legal bar to another trial; that the prisoner had not been convicted or acquitted, and might again be put upon his defense. The court said:

"We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office." 9 Wheat. 579, 6 L.Ed. 165.

The court recognized in this case that there was diversity of the opinion in practice on this subject in the American courts, and an examination of our own cases shows the court was slow at first to acquiesce in this interpretation by the Supreme Court of the United States. But, from the very beginning, the court has yielded to the principle announced in the Perez Case.

In State v. Waterhouse, Mart. & Y. 279, the jury, after having been confined together for four days, reported that it would be impossible for them ever to agree. The trial court thereupon discharged the jury and ordered a mistrial against the consent of the prisoner, and it was contended that this operated as an acquittal and entitled the prisoner to a final discharge. Judge Crabb, speaking for the court, said:

"According to the common acceptation of the expression, an individual would certainly be put in jeopardy, or, in other words, in danger, when arraigned before the proper tribunal, placed upon his trial, and a jury actually sworn to pronounce upon his innocence or guilt. But for a long course of judicial opinion to the contrary, I should be at a loss to attach a different meaning to the expression, and might feel myself bound to hold, that a second jury cannot be impaneled to try a citizen for a felony after he has been once jeopardized or endangered, by a submission of his cause to a competent court and a jury, upon a valid indictment. A fear, that the power in question, would sometimes be exercised, for the purposes of oppression and persecution, would make me hesitate long before I could consent to abandon a construction, which would seem to be most consonant with the meaning of the words, and withal, most favorable to life and liberty."

The opinion then refers to the decisions of Massachusetts, New York, and the United States as constituting a weight of a coincident adjudication which could not, with propriety, be resisted. Referring particularly to the decision of the Supreme Court of the United States in the Perez Case and other cases, Judge Crabb said:

"T

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