Murphy v. State

• Decision Date: 30 April 1882
• Citation: 77 Tenn. 373
• Parties: C. B. Murphy v. The State.
• Court: Tennessee Supreme Court

77 Tenn. 373

C. B. Murphy

v.The State.

Supreme Court of Tennessee.

April Term, 1882.

FROM DECATUR.

Appeal in error from the Circuit Court at Decatur County. T. P. BATEMAN, J.

L. S. WOODS, J. M. TAYLOR and S. M. HAWKINS for Murphy.

ATTORNEY-GENERAL LEA for the State.

COOPER, J., delivered the opinion of the Court.

The plaintiff in error having been convicted of selling an intoxicating beverage within four miles of an incorporated institution of learning, appealed in error.

After the State had exhausted its peremptory challenges, the attorney-general asked a person tendered as a juror if he did not have a suit pending in the court, and he replied that he had, on a previous day of the term, been tried and acquitted. The trial judge, over the objection of the defendant, held the person incompetent to serve as a juror, and he was set aside for this cause. A jury having been selected, the clerk, under the direction of the court, proceeded to swear, and had sworn eight of them when one of the number informed the clerk that he had a suit in court, and the clerk stated to the judge what the juror said. The judge then announced to the attorney-general and the counsel of the defendant that one of the jurors had a suit in court. The clerk proceeded to the swearing of the other four jurors. The attorney-general then asked what the court said, and the judge repeated that one of the jurors had a suit in court. The attorney-general at once objected to the juror, and the judge told the clerk to hold on. Immediately after this was said, the last juror had kissed the book, and was handing it back to the clerk. At the instance of the attorney-general, and over the objection of the defendant, the court held the juror incompetent, and set him aside. Error is assigned on these rulings.

The Code, sec. 3988, forbids the appointment of any person to serve as a juror “who has an action pending in the court at the term to which he is nominated.” By section 4010 either party is permitted to challenge for cause “any person who has a suit then pending for trial at the same term of the court.” It is very obvious that the first person presented above as a juror should not have been appointed because he did have an action pending in the court at that term, although it may have been tried before he was presented as a juror. The incompetence is not made to depend upon the order of time in which a case may be heard at the term, but on the fact of having a suit pending at that term. In the matter of the other juror, it is obvious that the act of the clerk in proceeding to swear the entire jury, without the direction of the court, before the attorney-general had caught the fact announced and taken action, can not be allowed to affect the question presented. That question is whether a juror, whose incompetency is disclosed before the jury is sworn, may be set aside for cause. To that question there can only be one answer. It is said, however, that the fact only appeared that he had a suit in court, and non constat that it was pending at the term. But it is obvious that the juror, the court and the attorney-general proceeded upon this assumption, which the language, although susceptible of a different sense, might well imply, and the objection was not made which is now relied on. It is unnecessary to determine whether, even if the fact were as now suggested that the suit was not pending for trial at that term, the case would not fall within the ruling in Riley v. Bussel, 1 Heis., 294.

The State introduced three witnesses, each of whom testified to a sale to him by the defendant, on the 8th or 9th of November, 1881, of one or more drinks of cider “spiked” with an intoxicating beverage. That is, the sale and purchase were of cider by the drink, the purchaser being allowed to add to it spirituous liquor according to his taste. The jury, on a proper charge, would of course be warranted in finding the defendant guilty of selling an intoxicating beverage, especially as one of the witnesses admitted the repetition of his potations of the “spiked” cider until he was actually intoxicated. The defendant objected to the introduction of testimony of more than one offense, and, on the objection being overruled, moved the court to require the attorney-general to elect on which one of the three offenses he would try the defendant. The court refused the motion, but in his charge to the jury said: “If he (the defendant) is found to have made more sales than one before the finding of the presentment, the verdict should be returned that the defendant is guilty as charged, and the fine fixed only as if there had been but one sale.” There was no error in overruling the objection to the admission of the testimony. Evidence of separate offenses may be made to show the intent with which the act charged was done: Dobson v. State, 5 Lea, 273. But we think his Honor erred in overruling the motion requiring the attorney-general to elect the offense on which he proposed to try the prisoner. The presentment was general, for...