Monday v. State
| Decision Date | 01 February 1930 |
| Citation | 23 S.W.2d 656,160 Tenn. 258 |
| Parties | MONDAY v. STATE. |
| Court | Tennessee Supreme Court |
Appeal from Criminal Court, Trousdale County; Harry Camp, Judge.
Jack Monday was convicted for the unlawful reception, possession and transportation of intoxicating liquors, and he appeals in error. Affirmed.
J. D McMurray, of Hartsville, and John Hilldrop, of Nashville, for plaintiff in error.
The Attorney General, for the State.
This is an appeal in error from a conviction upon a presentment alleging the unlawful reception, possession, and transportation of intoxicating liquors.
There is a single assignment of error, to wit:
"The Court erred in overruling the motion of the defendant for a mistrial on the ground that the jury was incompetent to try this case, and in overruling motion for a new trial for the same reason."
Upon cross-examination of one of the state's witnesses, the sheriff of Trousdale county, it developed that at the time of the arrest of plaintiff in error there was in force a resolution passed by the quarterly court of Trousdale county appropriating to the sheriff one-half the fines accruing from offenses similar to that for which the plaintiff in error was on trial.
It further appeared that the jury which was trying the plaintiff in error was the regular trial jury for the term, and that such jury had been duly and regularly designated by the quarterly court, and that the sheriff had selected none of the jury, but had merely executed the writ of venire facias. It further appeared that the quarterly court of Trousdale county had subsequently rescinded the order appropriating to the sheriff any portion of the fines accruing in such cases and that the same was not in force at the time of the trial. The sheriff also testified that he had never claimed or received any portion of the fine in any such case, and that he would not, in the event of a conviction in the present case, be entitled to nor accept any portion of the fine.
Upon the development of these facts, counsel for plaintiff in error entered a motion that a mistrial be declared, and, to the action of the trial judge in overruling such motion excepted and subsequently made this action of this trial judge the basis for the motion for a new trial.
In the outset the State challenges the right of the plaintiff in error to avail himself of the issue sought to be raised, for the reason that the bill of exceptions fails to recite that it contains all the evidence in the case or even that it contains all the evidence upon the particular facts of the case sought to be reviewed in this tribunal. From the absence of this statement, it is insisted that there must arise a presumption that there was heard other evidence justifying the action of the trial judge in overruling the motion that a mistrial be entered.
It is true that it has been stated as a general rule that a trial judge will not be put in error upon any ruling or judgment entered upon any question of fact, where the record fails to state affirmatively that it contains all the evidence heard by the court on that question. Eatherly v. State, 118 Tenn. 371, 101 S.W. 187.
In the case of Harlow v. State, 20 S.W.2d 1045, this court has announced that, where it is apparent from the record that there is in reality no controversy of fact in the case, the failure of the bill of exceptions to recite that it contains all the evidence will not preclude plaintiff in error from having the legal significance of the undisputed facts determined in this court. In that case the undisputed facts related to the right of search; here they relate to the competency of the jurors. To review the present case, therefore, will require no extension of the rule already announced on the necessity for the technical recitation in the bill of exceptions.
There is another feature of the record, however, which does effectually bar plaintiff in error from whatever benefit might lie in the issue he seeks to raise; such feature being his apparent acquiescence both in the manner of the panel's selection and summons and the jury's personnel, for plaintiff in error, when his case was called for trial, did not exercise a challenge either to the array or to the polls.
In the case upon the authority of which plaintiff in error relies ( Oliphant v. State, 153 Tenn. 130, 282 S.W. 206) the accused had seasonably challenged for cause the incompetent jurors. But here it appears that, by his action in accepting the jury, plaintiff in error apparently acquiesced in the situation which he sought unseasonably thereafter to question. It is an ancient and general rule that, if a juror be not excepted to before sworn, exception afterwards, in ordinary cases, comes too late. Young v. Stringer, 6 Tenn. (5 Hayw.) 30. "A party cannot remain quiet * * * and by his conduct accept the juror after the objection comes to his knowledge, especially when the fact is known before the jury is made up or trial commenced, and then have a new trial when the verdict is found against him." Tinkle v. Dunivant, 84 Tenn. (16 Lea) 503.
Except for the constitutional provision that a fine in excess of $50 must be fixed by a jury, it would be possible for the parties to a prosecution for the misdemeanor with which the plaintiff in error was charged to waive the jury trial itself. Lynch v. State, 99 Tenn. 124, 41 S.W. 348; Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99, 1 Ann. Cas. 585. It follows, therefore, that the parties may waive lesser rights or privileges incident to this mode of trial, whether given by common law or by the statute, and, where such waiver has been made, the parties will be bound thereby and the action of the court founded thereon cannot be assigned as error. The parties to such a suit may waive an objection to the whole panel which would furnish ground for a challenge to the array. 35 C.J. § 404, p. 363; 16 R. C. L. "Jury," § 102, pp. 286, 287; State v. Cole, 28 Tenn. (9 Humph.) 628; McTigue v. State, 63 Tenn. (4 Baxt.) 314; Wallace v. State, 70 Tenn. (2 Lea) 31.
In the case of State v. Cole, supra, this court said: "The defendant pleaded not guilty to the bill of indictment, and went to trial and was convicted; after this he shall not be permitted to object to the venire, or to the jurors summoned under it, if he have legal objection to the one or the other, he must avail himself of it, either by motion or plea; before he puts himself upon his country for his deliverance by his plea of not guilty; it is afterwards too late." 9 Humph. page 629.
It is the general rule that irregularity in the selection and...
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Shockley v. Crosby, No. M2003-00794-COA-R3-CV (TN 9/21/2004)
...S.W.2d d555 (1945). Generally, objections to a juror based upon causes propter defectum cannot be made after verdict. Monday v. State, 160 Tenn. 258, 23 S.W.2d 656 (1930); Nashville C. & St. L. Ry. v. Williams, 164 Tenn. 144, 46 S.W.2d 815 (1932). The reason for the rule is that a mere tech......
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State v. Chambers, No. E2002-01308-CCA-R3-CD (Tenn. Crim. 3/25/2004)
...and his attorney at the time of the jury's selection.'" Durham, 182 Tenn. at 582, 188 S.W.2d at 557 (quoting Monday v. State, 160 Tenn. 258, 23 S.W.2d 656, 658 (1930)); see also State v. Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993) ("Thus, when a juror conceals or misrepresents inform......
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...rule and has been declared in numerous of our cases, among these being Walker v. State, 118 Tenn. 375, 99 S.W. 366; Monday v. State, 160 Tenn. 258, 23 S.W. 656; Hamilton v. State, 101 Tenn. 417, 47 S.W. Cartwright v. State, 80 Tenn. 620. In the last named case the Court pointed out the dist......
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State v. Richardson
...was unknown to the defendant andhis attorney at the time of the jury's selection.'" Durham, 188 S.W.2d at 557 (quoting Monday v. State, 23 S.W.2d 656, 658 (1930)); see also State v. Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993) ("Thus, when a juror conceals or misrepresents information......