King v. State

• Decision Date: 07 July 1892
• Citation: 20 S.W. 169,91 Tenn. 617
• Parties: King v. State.
• Court: Tennessee Supreme Court

20 S.W. 169

91 Tenn. 617

King v. State.

Supreme Court of Tennessee.

July 7, 1892

Appeal from criminal court, Shelby county; J. J. Dubose, Judge.

H. Clay King, having been convicted of murder, appeals. Affirmed.

Lurton J.

This is an appeal from a conviction of murder in the first degree. The transcript consists of 2,500 pages of printed matter. It will therefore be impossible, within the compass of a legal opinion, to present anything like an analysis of this vast mass of evidence. All that we can hope to do is to state the errors which have been assigned by counsel, and briefly state our conclusion upon them.

1. The application of the defendant for a change of venue was refused, and this is assigned as error. Such an application is addressed to the sound discretion of the trial judge, and this discretion will not be reviewed, unless a strong case is made out showing an abuse of that discretion. Porter v State, 3 Lea, 476; Holcomb v. State, 8 Lea, 417; Poe v. State, 10 Lea, 673. We have carefully examined the evidence heard by his honor bearing upon this application, and we are unable to discover any abuse of his power. This is made the more evident from the fact that a jury was obtained without the exhaustion of the peremptory challenges allowed the defendant, and without the exhibition of any popular excitement.

2. The second application for continuance was properly disallowed. The indictment was found during the January term, 1891, of the court. After arraignment and plea the case was set for trial for April 6, 1891, a day of the same term. At this date an application for change of venue was overruled, and the case again set for April 13th. At that date the case was continued upon application of the defendant to the next term upon the ground of "undue excitement and prejudice," and for other causes, and upon motion of the defendant set for trial for the first Monday in June, 1891. On this date the application for change of venue was renewed and overruled, and the defendant applied for a second continuance, upon the ground of the prejudice which he averred still existed against him in Shelby county. Since the act of 1875, (Mill. & V. Code, § 6038,) a continuance because of too great excitement rests in the sound discretion of the court. The court had, when this application for continuance was made, already granted one continuance, and we see no error in his refusal of a second.

3. It is next assigned as error that Juror Smith had, previous to the trial, formed and expressed an opinion adverse to the defendant. On the original examination of this juror, he admitted that he had read the newspaper accounts of the killing of Poston, and that he had talked about the case with several parties. He said, however, that he had formed no opinion, and that he could render a verdict upon the law and evidence presented. "From the fact that the juror was selected, he must be presumed to be competent. To overthrow this, a clear case must be made out against him." Mann v. State, 3 Head, 377. The witness White, by whom it was sought to show that the juror had expressed an opinion adverse to the defendant, appears to have been a partisan of the defendant. His memory as to the conversation with Smith was not clear. He had heard a large number of persons express opinions adverse to the defendant, and it is by no means clear that he had not confused, what was at best but a casual conversation with Smith, with what he had heard others say. Smith claims that he had never expressed such an opinion to Mr. White. He is shown to be a man of good character, and had no particular acquaintance with either the defendant or the deceased. The witness Hessin, also relied upon to show that Juror Smith had an opinion, was impeached by his contradictory statements made to Gaither and to W. K Poston. Besides, he refused to swear that he had heard Smith express an opinion, saying that he could only state his impression or belief. That the juror is a competent witness, and that his denial, supported by proof of good character, as by corroborating circumstances, is sufficient to rebut the evidence of an attacking witness, is established by our cases. Rader v. State, 5 Lea, 610; Johnson v. State, 11 Lea, 47; Mann v. State, 3 Head, 373.

4. Misconduct of jury. Under this general assignment a number of instances of alleged misconduct are relied upon as vitiating the verdict and requiring a new trial. The well-settled rule in felony cases requires that the jury shall be kept together, and separate and apart from other persons, and that there shall be no communication between them and persons not on the panel. That this rule may be enforced, the law requires that the jury shall be put under the charge of an officer sworn to keep them together, and to prevent them from mingling with others, or having any communication with persons not of the jury, and to have none with them himself in regard to the case. This procedure in high grades of crime has, from the earliest history of this state, been regarded as essential to the common-law right of trial by jury granted by our constitution, and as a practice tending to prevent extraneous and improper influences from affecting the jury charged with the liberty or life of the citizen. While there is no uniformity of decision in the courts of England or America as to the legal effect of evidence of a separation, without more, yet the weight of authority elsewhere, and the unbroken line of opinion in this state, is that prima facie the verdict is vitiated by the fact of separation. If, however, it is made to appear that the misconduct could not have been harmful to the defendant, then there is not ground for a new trial. "It is the opportunity of tampering with a juror afforded by the separation," said Chief Justice Deaderick, "which constitutes the ground for a new trial; but, if such separation afforded no such opportunity, there can be no excuse for a new trial." Cartwright v. State, 12 Lea, 625. When all that occurred during a separation is fully explained, and it can be clearly seen that there was no opportunity for improperly influencing the jury, or that the communication had with the jury was not calculated to improperly affect them, then to set aside a verdict otherwise sustained would be to sacrifice substance to form, and bring the administration of law into just discredit. Greenlow v. State, 4 Humph. 27; Hines v. State, 8 Humph. 601; Riley v. State, 9 Humph. 646; Cartwright v. State, 12 Lea, 625. Having in view these principles governing such trials, we will briefly examine the facts mainly relied on as showing a violation of the rule requiring the jury to be kept together, and prohibiting communications.

First. That the jury during the trial went beyond the border of the state. The facts are these: This trial took place in midsummer, at Memphis, on the Mississippi river. It lasted 33 days. The health and comfort of the jury made it proper that the jury during so protracted a trial should, under proper supervision, be given opportunity for exercise. For this purpose, during the adjournments of the court, they were several times taken for walks and rides in and about the city and suburbs. Upon one of these occasions, accompanied by two specially sworn officers, they were taken on board the ferryboat which plies between the Tennessee and Arkansas sides of the river. When the boat made its landing on the western or Arkansas side, the jury were permitted to walk up on the bank of the river, where they stood for a few minutes, or until the boat was ready to make its return trip. During the entire trip the jury were kept together, and there was no mingling with other persons, and no communication whatever between jurors and other persons. It is now insisted that while there, without the state, the jury, in legal effect, were dispersed, and no longer under the legal control or custody of the court's officers; that while beyond the state the officers had no right to control or restrain the jury, and the courts of this state no power to punish for any act in disobedience of its rule or contempt of its authority, done beyond the border of the state. If all this be admitted, yet it does not follow that the verdict is necessarily vitiated. It being affirmatively shown that during the period covered by this alleged dispersal the jury did not in fact separate, and that in fact they had no sort of communication with outsiders, the case is taken thereby without the rule which vitiates the verdict only when a separation is unexplained. The assumption that the court would have had no authority to punish an act in contempt of its authority, affecting its jury or its process, is not supported. In McCarthy's Case it was ruled that a court of this state might punish for contempt committed in another state, by there attempting to induce a witness to disobey the process of the court which had been executed upon him while within this state. 89 Tenn. 543, 15 S.W. 736. Whether the officers in charge of the jury could or could not lawfully restrain the jury while outside the state is unimportant, in view of the fact that their authority was not brought in question, the jury remaining together and avoiding communications without requiring the exercise of force.

Second. In going in and out of the crowded courthouse, and in passing upon the streets for air and exercise, or between the hotel where they boarded and the courthouse, there was necessarily some crowding and jostling of the jury. It is argued that this afforded opportunity for improper communications, and vitiated the verdict. Upon these occasions the jury were as carefully guarded as was possible, and there was no actual separation. No communication with the jury is shown, save in...