Hamilton v. State

• Decision Date: 26 October 1898
• Citation: 47 S.W. 695,101 Tenn. 417
• Parties: HAMILTON v. STATE.
• Court: Tennessee Supreme Court

47 S.W. 695

101 Tenn. 417

HAMILTON v. STATE.

Supreme Court of Tennessee.

October 26, 1898

Appeal from criminal court, Knox county; T. A. R. Nelson, Judge.

Ezra Hamilton was convicted of murder, and he appeals. Affirmed.

Samuel G. Heiskell and L. C. Houk, for appellant.

G. W Pickle, Atty. Gen., for the State.

WILKES J.

Defendant is convicted of murder in the second degree, and sentenced for 20 years, and has appealed. It is objected that one of the jurors who tried him was related within the sixth degree to the prosecutor, who was also an important witness. No challenge was made of the juror when offered, but, on motion for a new trial, defendant made affidavit of the fact, and that he did not know of it when the juror was sworn. A juror is disqualified to serve when he is related to the defendant or to the prosecutor within the sixth degree, computing by the civil law. It is conceded that the juror was related in the sixth degree to the prosecutor. The term "within," as a limit of time or space or degree embraces the last day or degree or entire distance covered by the limit. 29 Am. & Eng. Enc. Law, 524; 26 Am. & Eng. Enc. Law, 4; Union Trust Co. v. Chattanooga Electric Ry Co., 100 Tenn. --, 47 S.W. 423. The juror was therefore incompetent. Can this avail the defendant on his motion for new trial and on appeal to this court? If a partial juror serves on the panel, it is ground for new trial, if the partiality was unknown to defendant when the juror was sworn. Riddle v. State, 3 Heisk. 401; Brakefield v. State, 1 Sneed, 215; Norfleet v. State, 4 Sneed, 340; Goodall v. Thurman, 1 Head, 209; Johnson v. State, 11 Lea, 47; Draper v. State, 4 Baxt. 246; Cartright v. State, 12 Lea, 620; Parrish v. State, Id. 655; Hoard v. State, 15 Lea, 318; Spence v. State, Id. 539. But if the fact is known to the defendant, and no objection is made before the jury is sworn, it is not ground for new trial. Cantrell v. State, 2 Shannon, 249; Tinkle v. Dunivant, 16 Lea, 503. But our cases are uniform that after the jury is sworn new trial will not be granted because of the want of general qualification of the juror, "propter defectum"; and this is held, even though the defendant was ignorant of the fact when the juror was selected. McClure v. State, 1 Yerg. 206; Gillespie v. State, 8 Yerg. 507; Ward v. State, 1 Humph. 253; Calhoun v. State, 4 Humph. 477; Cartright v. State, 12 Lea, 620. The latter case is directly in point, and draws the distinction between the cases when a juror is incompetent "propter defectum" and when he is incompetent because he has prejudged the case. Page 628. It might have been within the sound discretion of the trial judge to have granted a new trial, upon this or any other ground which in his opinion prejudiced the defendant's right to a fair and impartial trial; but there appeared no evidence of partiality to the prosecutor, or collusion with him, or of prejudice against the defendant in the selection of this juror, and in his denial of relationship, to the prosecutor, as it is made to appear that he mistook the name of the prosecutor, when it was called, upon his examination, and, moreover, the fact of relationship was of so little consequence to him that he could not state whether he was related or not, except from rumor or hearsay.

It is next insisted the defendant is not guilty, but that he killed his antagonist in self-defense. The case has been to this court before, when a death sentence for the offense was reversed for an inadvertent error in the charge of the court. See case reported in 97 Tenn. 452, 37 S.W. 194. Upon the remand there was a mistrial, and then the present conviction. The homicide was committed in October, 1895. The deceased Walter Hansard, and the defendant were paying attention to the same young lady, and bad blood had developed in their rivalry, and had continued for a year or more, during which time they had quarrels. The homicide occurred on Monday. On Sunday night previous each of the young men had gone to the same country church, each with a different young lady. The defendant and the young lady he was with were sitting next to a window, when deceased approached from the outside, and turned the slats in the blinds. The defendant moved over next to the window, between it and the young lady, and spat out of the window. The deceased thereupon called him a "son of a bitch." Defendant got up, and went out of the church, and he and the deceased went off into the woods together to settle their quarrel, but they returned without having any difficulty. After service was concluded they each started home with his young lady, but defendant, after going with his a short distance, left her, and went a road that did not lead to her home nor to his, but by the home of the deceased. The parties were both armed, but defendant did not intercept the deceased, and no further trouble occurred that night. On the next day defendant went to a store in the neighborhood, bought some cartridges, and freshly loaded his pistol. He then passed along the public road by where deceased lived. This was not his direct road home. Deceased was engaged near the road handling some hay or fodder at his uncle's barn. Defendant was accompanied by a friend named Butcher. He called to the deceased to come...