Madden v. State
| Decision Date | 14 December 1901 |
| Parties | MADDEN v. STATE. |
| Court | Tennessee Supreme Court |
Appeal from circuit court, Houston county; B. D. Bell, Judge.
A. B. Madden was convicted of selling liquor within four miles of a school house, and he appeals. Modified.
G. E. Kannard and Patterson & Stratton, for appellant. G. W. Pickle, Atty. Gen., for the State.
Plaintiff in error was convicted in the circuit court of Houston county of the offense of selling liquor within four miles of a school house, and has appealed in error.
The first assignment is that the court erred in striking defendant's plea in abatement from the files. The plea averred that the indictment had not been found by a lawful grand jury, in this: that the county court appointed a venire of 25 jurors, but only 22 were in attendance, and thereupon the court summoned 3 bystanders to make out the full venire, before proceeding to impanel the grand jury. It is insisted that the grand jury should have been selected from the jurors in attendance, before the court undertook to appoint three bystanders to fill out the venire. This contention is based on section 5827, Shannon's Code, which provides, viz.: "To form the grand jury, the court shall direct the names of the jurors in attendance to be written on scrolls and placed in a box," etc. We think the objection is untenable. The very next section of the code provides, viz.: "Whenever a sufficient number of the jurors of the original panel fail to attend before the grand jury is formed, the court may impanel the grand jury of so many of the original panel as may attend and the rest from the bystanders." The next section provides, viz.: "And if none of the original panel attend, or no jurors have been appointed, the grand jury may consist entirely of bystanders." These sections fully indicate the very enlarged discretion vested in the court in filling vacancies in the venire appointed by the county court, and in the appointment of grand jurors from bystanders. Moreover, it has been expressly decided that it is no ground of abatement of an indictment that a grand juror was selected from the bystanders instead of from the regular venire. Gold v. Vaughan, 4 Sneed, 425; Epperson v. State, 5 Lea, 292.
The next error assigned is that the court refused the defendant a continuance when it was made to appear that he was sick, and unable to proceed with the trial. The defendant made an affidavit that he was sick, and not physically able to go to trial. Thereupon the state summoned two physicians, who examined him, and testified that defendant was suffering with a slight headache, and with his bowels; that his pulse and temperature were normal; and they expressed the opinion that he was able to attend court without injury to his health. The defendant then called two physicians who testified that they did not regard him as well, and the excitement of a trial might considerably affect him. The court, after hearing the opinions of the physicians, thought the defendant was able to go to trial, and so ruled. This is a matter that rested largely in the sound discretion of the court, and we cannot see that this discretion has been abused.
The third assignment is that the court erred in overruling defendant's challenge of the juror Griffin. The juror, on his voir dire, stated that he was of opinion the sale of liquor at Midway would be illegal, but he had formed no opinion as to the guilt or innocence of the defendant. The juror stated that he was the father of what was known as the "Griffin Bill," which amended the four mile law, making the sale of liquor in towns thereafter incorporated with less than 2,000 inhabitants unlawful. See Acts 1899, c. 221. It will be observed the juror Griffin had no opinion as to the guilt or innocence of defendant, but his opinion was, rather, upon a question of law, namely, that the sale of liquor in Midway was illegal....
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