Oliphant v. State
| Decision Date | 10 April 1926 |
| Citation | 282 S.W. 206,153 Tenn. 130 |
| Parties | OLIPHANT v. STATE. |
| Court | Tennessee Supreme Court |
Error to Circuit Court, Dickson County; J. D. G. Morton, Judge.
Porter Oliphant was convicted of possession and transportation of intoxicating liquor, and he brings error. Reversed, and remanded for new trial.
Howard E. Brown, of Dickson, for plaintiff in error.
Ferris C. Bailey, Asst. Atty. Gen., for the State.
The plaintiff in error, Porter Oliphant, hereinafter referred to as the defendant, was indicted in the circuit court of Dickson county at its December term, 1925, upon two counts.
The first count charged him with unlawfully possessing intoxicating liquors, and the second count charged him with unlawfully transporting intoxicating liquors from one point to another in the state.
To this indictment he pleaded not guilty, and was tried before the court and a jury at the same term of the court at which the indictment was returned, and found guilty as charged. He moved for a new trial and in arrest of judgment, which motions were overruled. Upon the verdict of guilty he was fined $100, and given a sentence of 60 days in the county jail. From this judgment he has appealed and assigned errors.
It appears that at the October term, 1923, of the quarterly county court of Dickson county a resolution was passed by that court appropriating one-half of all fines thereafter collected in cases growing out of the violation of the prohibition laws to the sheriff of the county to pay his expenses in his effort to enforce the prohibition laws in said county. This resolution was readopted by said quarterly county court at its January term, 1924, and was in force at the time defendant was tried at the December term, 1925.
The record further discloses that it was the practice of the sheriff and his deputies in Dickson county to divide one-half of the fines so appropriated to the sheriff and collected in cases involving a violation of the prohibition laws under this resolution.
The record further discloses that at the October term, 1925, of the quarterly county court of Dickson county that court appointed twelve jurors, exclusive of the grand jury, to serve as such at the December term, 1925, of the circuit court of said county, as provided by section 5793 of Shannon's Annotated Code. In addition to this regular panel the record shows that on the first day of the term (December, 1925) the court directed the sheriff to summon from the body of the county six additional jurors to serve during that term of the court. Pursuant to this order the sheriff, or his deputies, summoned the following jurors, to wit: W. H. Baker, Earl Bishop, H. H. Orgain, C. H. Osborne Charles Elliott, and J. J. Beck, all of whom appeared in court on the second day of the term, and were qualified in open court as talesmen to serve as jurors during that term.
When the instant case was called for trial, and after the state and defendant had announced ready, the defendant moved the court to have the regular jurors, who had been regularly appointed by the quarterly county court, to take their seats in the jury box.
The court overruled this motion, and directed that the record show that, prior to its being made, the instant case had been called for trial; that both the state and the defendant had announced ready, and the state had accepted the jury composed, in part, of the jurors hereinbefore named, who had been summoned by the sheriff, or his deputies, pursuant to the order of the court hereinbefore referred to. To this action of the court the defendant excepted.
Thereupon the defendant challenged for cause the jurors who had been summoned by the sheriff, or his deputies, pursuant to the order of the court, because they were selected and summoned by officers financially interested in the event of the case which motion the court overruled, and to which action of the court the defendant excepted.
The defendant then peremptorily challenged the jurors Beck Orgain, and Elliott, thus exhausting the three challenges to which he was entitled under the statute. He thereupon moved the court to exclude from the jury the remaining jurors who had been summoned by the sheriff, or his deputies, pursuant to the order of the court hereinbefore referred to, because selected by officers who were financially interested in the event of the case. This motion was likewise overruled by the court, to which ruling the defendant excepted. The result was that the defendant was forced to go to trial before a jury composed, in part, of jurors selected and summoned by the sheriff in the manner hereinbefore stated, and with the result hereinbefore stated.
Defendant assigns for error the action of the court in overruling his challenges for cause of said jurors because they were selected and summoned by officers disqualified to do so by reason of their financial interest in the event of the case.
He also assigns as error the action of the trial judge in overruling his objection to the testimony of J. C. Berry, H. B. Peebles, and H. L. Hammon, deputy sheriffs of Dickson county, all of whom were offered on behalf of the state, and by whose testimony it was sought to establish the defendant's guilt, on the ground that each of them were shown to be financially interested in the event of the case, to which ruling of the court defendant duly excepted.
By section 5793 of Shannon's Annotated Code it is provided as follows:
"The county court of each county shall, at its quarterly session, held next preceding each term of the circuit court, appoint the jurors to serve at the next succeeding court, but no person shall be summoned or serve on the venire who has served on a venire for a period of two years preceding."
Section 5804 reads as follows:
"If the county court fail to nominate, or the persons nominated fail to attend, the court shall designate other good and lawful men, and direct the sheriff to summon them as jurors, and the person so summoned shall act as such."
By section 5820 it is provided:
"Either party to an action may challenge for cause any person presented as a petit juror, in either a civil or criminal proceeding, who is incompetent to act as a juror under the provisions of the foregoing article."
By section 5842 it is provided:
"When,...
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Monday v. State
...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) accused had seasonably challenged for cause the incompetent jurors. But here it appears that, by his action in accepting the j......
- Oliphant v. State