Mahon v. State

• Decision Date: 01 April 1912
• Citation: 156 S.W. 458
• Parties: MAHON v. STATE.
• Court: Tennessee Supreme Court

Page 458

156 S.W. 458

MAHON v. STATE.

Supreme Court of Tennessee.

April, 1912.

Appeal from Criminal Court, Madison County; N. R. Barham, Judge.

Vaulx Mahon was convicted of murder in the second degree, and he appeals. Affirmed.

Bond & Bond, of Brownsville, Coulter & Coulter, of Dyer, R. P. Raines, of Trenton, and T. W. Pope, of Jackson, for appellant. Assistant Attorney General Faw, for the State.

LANSDEN, J.

The plaintiff in error was jointly indicted with Floyd Parr and Tasso Moore in the circuit court of Gibson county for the murder of D. W. Dickson, deceased. Upon application of the defendants, the venue was changed to Madison county, where the case was tried at the May term, 1911, in the criminal court of that county. On the 15th day of May the case was set for trial for the 22d of May. The trial judge, according to the bill of exceptions, ordered a special panel, out of which the trial jury was afterwards selected under the following circumstances:

"Be it remembered that on the 15th day of May, 1911, being the date this case was set for trial, the defendants were brought into open court, and the case was set for trial on the 22d day of May. Thereupon, the court being of the impression that a jury law had been recently passed by the General Assembly of Tennessee, applied to Madison county, and that by the provision of which it was the duty of the court to designate names of persons to be summoned for jury service, the court informed counsel for both state and defense of the enactment of such a law, and stated to counsel the court would then and there designate the persons to be so summoned by the sheriff for jury service in this case unless they (counsel) should then and there consent for the sheriff to select and summon a panel under the old law, or in the way as provided before the enactment of said jury law. To this suggestion counsel for the state or counsel for the defendants made no objection — in fact, made no response to the suggestion of the court. Thereupon the judge, N. R. Barham, in open court designated and appointed 125 persons and citizens of Madison county as a panel from which to select a jury in this case, and ordered the sheriff to summon said persons so designated to be present at 8:30 o'clock a. m. on the 22d day of May, 1911.

"Thereupon list of 125 names were called by the sheriff.

"Mr. Coulter: If the court please, the defendants desire to challenge the array, and move to discharge this panel, and direct the sheriff to summon another panel, upon the ground that the court named and selected the jurors named in this panel under the misapprehension that the act of the present Legislature applied to Madison county.

"The Court: Let your application and motion be overruled.

"Mr. Coulter: Note our exceptions."

The plaintiff in error was convicted of murder in the second degree and sentenced to imprisonment to 12 years in the penitentiary. His codefendants were acquitted. Upon the overruling of motions for a new trial and in arrest of judgment, plaintiff in error has appealed to this court and assigned errors.

The first and second assignments of error are:

(1) The court erred in designating and appointing 125 persons to be summoned by the sheriff to make a panel from which to select the jury to try the case.

(2) The court erred in overruling the challenge of the defendants to the array and their motion to discharge the panel.

His honor, as will be seen from the foregoing excerpt from the bill of exceptions, labored under the erroneous impression that chapter 115 of the Private Acts of 1911 applied to Madison county, and that under the provisions of that act it was made his duty to designate and appoint persons to be summoned for jury service in the case then on trial. It is conceded that this act did not apply to Madison county.

It is insisted for the plaintiff in error that the trial judge was without power to designate the persons to compose the panel from which the jury was to be chosen.

Without deciding whether it was within the power of his honor to designate and appoint the panel from which the jury was to be chosen, we think for two reasons the plaintiff in error cannot make the objection raised in this court. In the first place, the trial court invited objection from the state and the defense to his designating and appointing the panel himself, if objection was desired to be made. He even inferentially requested that counsel consent "for the sheriff to select and summon a panel under the old law or in the way as provided before the enactment of said jury law." In other words, plaintiff in error was given the option to have the panel summoned in the manner that it is now insisted that it should have been done, notwithstanding the supposition upon the part of the court that the Legislature had provided a new method of selecting the panel. Having had his opportunity to object at a time when the objection could have been made available in the court below, it is now too late to insist upon it in this court. Hobbs v. State, 121 Tenn. 413, 118 S. W. 262, 17 Ann. Cas. 177.

For another sufficient reason, the plaintiff in error cannot avail himself of the objection to the panel. Neither the challenge to the array nor the motion to quash the panel, made in the court below, was in writing. At the common law a challenge to the array was required to be in writing. This is said to have been the rule in volume 12 of the Encyclopedia of Pleading & Practice at page 426, and the author cites as his authority for the statement: People v. Brown, 48 Cal. 253; State v. Davis, 41 Iowa, 311; State v. Knight, 43 Me. 11; People v. Doe, 1 Mich. 451; State v. Taylor, 134 Mo. 109, 35 S. W. 92; Cox v. People, 80 N. Y. 500; Cooley v. State, 38 Tex. 636. Mr. Chitty, in his valuable work, states the rule in substantially the same form at star page 546.

The reason of the rule seems to be that a challenge to the array and a motion to quash the panel are informal pleadings, and all pleadings in a court of record must be in writing. The challenge must also be specific, and point out with particularity the grounds relied upon for setting the panel aside. People v. Collins, 105 Cal. 504, 39 Pac. 16; Perry v. State (Tex. Cr. App.) 34 S. W. 618; 1 Chitty's Criminal Law, 537; Wharton's Criminal Pleading and Practice (9th Ed.) § 607; 24 Cyc. p. 331, note 24.

The third assignment is to the effect that the court erred in holding the talesmen Bryan and Herron, and certain others named in the assignment, competent jurors. Without setting out the examination of these talesmen on their voir dire, it is sufficient to say that we are of opinion that Bryan and Herron were both incompetent. It appears that Bryan had talked to Mrs. Roach, a witness for the state, and from his conversation with her had formed an opinion which was manifestly hostile to the plaintiff in error. She claimed to know the facts, and gave him a statement of them, from which he formed an opinion. He stated that he entertained the opinion at the time of his examination, but that he could lay it aside, and give the defendants a fair and impartial trial, and try the case alone according to law and evidence, if there was proof to remove the opinion. The talesman Herron had talked to a person whom he understood was telling the facts which this person had ascertained from talking to witnesses. He told the talesman how the killing occurred, and from this the talesman formed his opinion, which he entertained at the time of his examination. He said it would take proof to remove it, but that the opinion entertained would not have any weight with him in making his verdict, if the proof were sufficient.

Each of the foregoing incompetent jurors was challenged by the plaintiff in error peremptorily, and by the time that the twelfth juror was elected the plaintiff in error had exhausted all of his peremptory challenges. The twelfth juror was J. R. Cundiff, who qualified in answer to the formal questions, and was thus cross-examined by counsel for plaintiff in error:

"Q. Where do you live?

"A. Jackson.

"Q. What business are you engaged in?

"A. At present I am working for Craig & Taylor.

"Q. How long have you been here in Jackson?

"A. I have been here a number of years.

"Q. Engaged in that business?

"A. Only for a short while; I formerly railroaded here.

"Q. Do you know anything about the facts of this case?

"A. No more than the newspaper accounts.

"Q. Did you form an opinion from that?

"A. No, sir; I can't say that I did.

"Q. Have you any opinion on your mind now?

"A. Why I have not paid any attention to the case at all.

"Q. Since the trial has been called here, have you heard anybody discussing it?

"A. Not but very little.

"Mr. Pope: Challenge for cause.

"The Court: Challenge disallowed.

"Mr. Pope: Challenge peremptorily.

"The Court: Challenge overruled, because defendant's challenges exhausted. Take your seat in the jury box.

"Judge Bond: We beg to except to your honor's ruling."

So, while this juror was objectionable to the plaintiff in error, he was competent under the law. It is insisted for the state that under the authority of Wooten v. State, 99 Tenn. 189, 41 S. W. 813, the plaintiff in error cannot successfully object to the denial of his peremptory challenges by the trial judge in forcing upon him the designated talesmen, because the jury, as finally constituted, was composed of competent jurors under the law, and was fair and impartial. The case cited, however, is not authority for this insistence. In that case Wooten did not seek to peremptorily challenge the twelfth juror, although he had previously exhausted his peremptory challenges, and had been forced to spend some of them upon incompetent talesmen. It has never been held in any reported case in this state that the wrongful denial to a defendant of one or more challenges was not reversible error, if any juror elected to try the case was objectionable to the...