McCampbell v. State

• Decision Date: 01 November 1905
• Citation: 93 S.W. 100,116 Tenn. 98
• Parties: McCAMPBELL v. STATE (seven cases).
• Court: Tennessee Supreme Court

93 S.W. 100

116 Tenn. 98

McCAMPBELL v. STATE (seven cases).

Supreme Court of Tennessee.

November 1, 1905

Appeal from Circuit Court, Marion County; S.D. McReynolds, Judge.

S. F McCampbell was convicted of several offenses charging sales of intoxicating liquors without a license, and he appeals. Judgment imposing the punishment modified.

C. C Moore, for appellant Atty. Gen. Cates, for the State.

BEARD C.J.

There are seven cases coming by appeal made by the plaintiff in error from as many judgments rendered against him in the court below. In each of these cases there was a presentment charging him with the sale of intoxicating liquor without first obtaining a license. In one of them, it is contended the judgment should be reversed, because the presentment was signed by only 12 jurors. In Pybos v. State, 3 Humph. 49, it was held that this number of qualified grand jurors could find a valid indictment, under a well-recognized rule of the common law. This is now a statutory rule (section 7055 of Shannon's Code).

However in State v. Baker, 4 Humph. 12, the holding was in the case of a presentment that if there should be one of the grand jury not legally a member it would be void, because it might have been found upon his information, which would not be under oath.

In State v. Martin, 3 Tenn. Cas. 478, there was a presentment signed and returned by the grand jury, of which one of the members so acting was disqualified by relationship to the defendant, and it was held that the presentment could not be sustained.

In both these cases the question was made by pleas in abatement, challenging the qualification of grand jurors who actively participated in the consideration of the presentment; in the present case, however, there is no objection urged to any member of the grand jury returning this presentment, or to the thirteenth grand juror who seems not to have participated, but the simple insistence is that, because 13 grand jurors did not attach their names to the presentment, it was not good. The objection is not sound, and it is overruled.

In five of the cases, pleas in abatement to the constitution of the grand jury finding the presentments were filed. Each of these pleas contain three grounds which correspond in every respect with those contained in all the others. In the present condition of the record, possibly it is unnecessary to consider these pleas as we find that they were filed on the 3d of April, 1905, and were disposed of on the 6th of April thereafter. On the 4th of April, however, upon his plea of not guilty there were trials and convictions of the plaintiff in error. If the record be correct, then the trial of the merits, before the action of the court was invoked upon the pleas in abatement, amounted to a waiver of them. Lest, however, there may be a clerical error in the transposition of these dates, we will consider the action of the trial judge in disposing of the pleas.

The first and third grounds, on motion of the state, were stricken out. Issue was taken on the second ground, and on the trial there was a judgment by the circuit judge against the plaintiff in error. The first ground assigned for abating the presentment was, in substance, that one Hudson was charged and sworn as a member of the grand jury, while the record showed that one Thomas, who was not qualified as a member, "participated in the deliberations of the grand jury during the term at which these presentments were found." The third ground alleged for abatement, was that the presentments were found upon the testimony of one Nelson, a witness summoned at the instance of the grand jury, it being alleged that in the matter of the offense charged therein the grand jury were without inquisitorial power.

These grounds were properly overruled by the trial judge. As to the first, the plea was fatally defective in failing to aver that the presentments were found on the information of one of the grand jurors. As the offense charged was within the inquisitorial powers of the grand jury the presentments may have been found on the testimony of a witness sent for by, or brought before, the grand jury, and as on the plea it is impliedly conceded that there were 12 competent grand jurors, the necessary presumption is that the presentments were found by these. State v. Young, 1 Tenn. Cas. 588. This view also sustains the action of the trial judge in his disposition of the third ground. As to the second, the question was as to the competency of the grand juror Hill, the objection having been raised that he was neither a house holder nor a free holder at the time he joined in finding these presentments. Upon the evidence submitted, the trial judge was clearly right in holding that this grand juror was a householder at the time indicated.

We take it, however, the defense seriously relied upon in all these cases is that the trial judge was without authority of law to impose jail sentences.

These presentments were made under chapter 161, p. 309, of the Acts of 1899. The caption of this act is as follows:

"An act to prohibit illegal sales of intoxicating liquors, and effectively provide for the collection of taxes, fine and cost."

In the first section it is provided, in substance, that any person selling or aiding in selling intoxicating liquors without a license required by law, shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than $50 nor more than $200 and imprisonment in the county jail or workhouse six months for each and every offense.

The second section makes it a misdemeanor for any person to allow the sale of intoxicants in or upon his premises, without the person making such sale having a license. The contention of the counsel of the plaintiff in error is that the first section of this act is by implication repealed by the sixteenth section of chapter 257, p. 629; this being the general revenue act of 1903. It is, however, not necessary to rest the argument upon the acts of 1903; for, if sound, chapter 161 in its first section was repealed by section 15 of chapter 432, p. 1051, of the general revenue act passed later in the session of the General Assembly of 1899. That section is as follows:

"Be it further enacted, that it is hereby declared a misdemeanor to exercise any of the foregoing privileges without first paying the taxes prescribed for the exercise of the same, and all parties so offending should be liable to a fine of not less than $50 nor more than $500 for each day such privilege is exercised without license."

It is true this revenue act was impliedly repealed by the...