Palmer v. State

• Decision Date: 11 November 1908
• Citation: 118 S.W. 1022,121 Tenn. 465
• Parties: PALMER v. STATE.
• Court: Tennessee Supreme Court

118 S.W. 1022

121 Tenn. 465

PALMER v. STATE.

Supreme Court of Tennessee.

November 11, 1908

Appeal from Circuit Court, Wilson County; Jno. E. Richardson, Judge.

Cecil Palmer was convicted of rape, and he appeals. Affirmed.

Turney & Turney and Frank McMillan, for appellant.

Chas T. Cates, Jr., Atty. Gen., for the State.

NEIL J.

The plaintiff in error was indicted and convicted in the circuit court of Wilson county for the crime of rape, committed upon the person of Mrs. Sophronia J. Yates, and was sentenced to be hanged. He thereupon appealed to this court and assigned errors. We have fully considered the evidence, and all of the errors assigned, in a memorandum opinion filed with record and we do not deem it necessary, in the present opinion, to refer more particularly to the facts, and to certain of the errors assigned, than in the manner just mentioned. In this opinion, prepared for publication, we shall advert to only two or three matters of law which arose upon the hearing.

It is insisted that the trial judge erred in passing to the counsel for the prisoner the following veniremen as competent jurors thereby rendering it necessary for the prisoner to challenge them peremptorily, viz.: J. V. Nettles, J. S. Hamilton, Albert Hawkins, J. S. Steed, R. W. Lannom, P. B. Smith, J. B. Young, Lea Ballinger, Jim Heran, R. B. Malone, Cates Bingham, E. P. Mitchell, Sam Lannis, and H. H. Smith. The latter was the twelfth juror, who was tendered to the prisoner's counsel after they had exhausted all of his peremptory challenges.

Most of the veniremen referred to stand upon the same ground, and can be disposed of together; but there are peculiarities about one or two of them, and they will be mentioned specially.

J. V. Nettles stated on his voir dire that he had not formed or expressed an opinion. Upon further examination he stated that he was a subscriber to the Lebanon Banner, and had been since, and prior to, July 4th; that he usually read the paper carefully, but did not remember reading articles about this matter; that, if he had read the Banner news items and editorials, he would have formed an opinion which would require evidence to remove. The bill of exceptions continues: "The defendant offered to show the news items and editorials of the Banner, marked Exhibits D, E, and F to the defendant's affidavits for a continuance, to the venireman, asking the question if he had read them. The court refused to allow the venireman to read the articles, upon the ground that, if they were not disqualifying, they were not material, and, if disqualifying, it would not be proper now to disqualify a juror."

It is insisted that the trial judge erred in not permitting the counsel for the prisoner to exhibit to the proposed person the articles referred to and have him read them. We do not think there was any error in this action of the court. It is clear, from the examination of the venireman, that he had no opinion whatever as to the guilt or innocence of the prisoner. It would have been an idle thing to have him read a newspaper article in order to see if he would form an opinion. It is said the court held in Ward v. State, 102 Tenn. 730, 52 S.W. 996, that it was error in the trial court not to permit such a thing to be done. The facts in that case were far different from those in the present case. In Ward's Case it appeared that the prisoner was on trial for one of a series of forgeries of the same character; that there had been a former trial of one of these cases, in which the particular transaction which was the subject of the case then on trial had been testified to by the leading witness for the prosecution; that his evidence had been reported in a newspaper, and that this newspaper had been read by the venireman; and that from the facts so stated by the witness he had formed an opinion. The court held, under these facts, that the prisoner's counsel should have been permitted to exhibit the newspaper to the venireman and examine him thereon; that is, it was held that the counsel for the prisoner had the right to examine the venireman touching the very newspaper report which the venireman said he had read, and from which he said he had formed an opinion, and which evidence related to the particular transaction which was the subject of the case for which the venireman was being examined as a prospective juror. In the present case, as already stated, the venireman testified that he had formed no opinion and did not remember that he had ever read the article in the paper.

J. S. Steed and several others of the persons named stated that they had read the accounts of the crime in both Lebanon papers, but had not formed or expressed any opinion. Of course, they were not disqualified.

Cates Bingham and several others of the veniremen mentioned testified that they had formed an opinion, but that it was based merely on rumor; that it would require evidence to remove such an opinion, but that they could go into the jury box, and do fair and impartial justice between the state and the prisoner, and decide the case upon the law and the evidence. This was the case, also, of H. H. Smith, who went upon the jury as the twelfth juror after the prisoner had exhausted all of his challenges.

The case of R. B. Malone is thus stated in the bill of exceptions:

"R. B. Malone otherwise qualified, but said he had formed an opinion; that it was based on mere rumor; that he could go into the jury box, and do fair and impartial justice between the state and the defendant, and would decide the case upon the law and the evidence; that his opinion was a fixed one, which would require evidence to remove; that he had talked generally about the matter, but did not know whether he had talked with witnesses or not, but had accepted or received it as mere rumor; that he read the Lebanon Democrat."

The determination of the question arising as to the two veniremen last mentioned requires a reference to our cases.

We have quite a number of cases upon the subject of the competency of jurors.

The following may be mentioned as cases wherein it clearly appeared that the veniremen had been disqualified by the formation of an opinion: Rice v. State, 1 Yerg. 432; Troxdale v. State, 9 Humph. 422; Riddle v. State, 3 Heisk. 401; State v. Collie, 3 Shan. Tenn. Cas. 803, 807; Carter v. State, 9 Lea, 440; Cartwright v. State, 12 Lea, 620; Hoard & Fite v. State, 15 Lea, 318; Ward v. State, 102 Tenn. 724, 52 S.W. 996; Turner v. State, 111 Tenn. 593, 69 S.W. 774.

The following cases stand upon somewhat peculiar grounds: Henry v. State, 4 Humph. 270; Moses v. State, 10 Humph. 456; Norfleet v. State, 4 Sneed, 341, 343, 344.

There are several cases concerning the effect of an opinion formed on rumor. These are Howerton v. State, Meigs, 262; Payne v. State, 3 Humph. 375; Moses v. State, 11 Humph. 232; Brakefield v. State, 1 Sneed, 215, 218, 219; McLean v. State, 1 Shan. Tenn. Cas. 478, 483, 484; Johnson v. State, 11 Lea, 47; Spence v. State, 15 Lea, 539, 543-547; Woods v. State, 99 Tenn. 182, 41 S.W. 811; Leach v. State, 99 Tenn. 584, 597, 42 S.W. 195; State v. Robinson, 106 Tenn. 204, 206, 61 S.W. 65. There is also the case of Watkins v. State, 1 Leg. Rep. 10, 2 Shan. Tenn. Cas. 206, which is out of line with the other cases upon the same subject.

We have also several cases which discuss the question of the competency of jurors in respect of matters of opinion generally. These are McGowan v. State, 9 Yerg. 184; Alfred & Anthony v. State, 2 Swan, 581; Eason v. State, 6 Baxt. 466; Conatser v. State, 12 Lea, 436; Spence v. State, supra; Woods v. State, supra; Wilson v. State, 109 Tenn. 167, 169, 170, 70 S.W. 57.

There is some conflict in the early cases. The dividing line between the early and later cases may be placed with Conatser v. State, supra, opinion by Mr. Justice Cooper, in which that great judge discusses the prior cases, and with infinite tact and delicacy indicates the transition from the earlier to the later view. The beginning of the modern doctrine may be placed with the case of Spence v. State, supra, in an opinion by the same eminent judge. That case contains a redaction of the Conatser Case. We shall not discuss or endeavor to reconcile the conflict between the present and the early doctrine, but shall begin our statement of the present doctrine with the Spence Case.

In this latter case the court said:

"The first error relied on for reversal is in the action of the court in pronouncing W. J. Taylor a competent juror. After the defendant had exhausted all his challenges, Taylor was presented as a juror. He stated on his voir dire that he had an opinion, formed from reading the newspapers and from talk in the neighborhood; that it would require evidence to remove this opinion; he had heard Spence had killed Wheat about a settlement, and that was all he had heard or read; did not know either of them; that, if taken on the jury, he would try the case on the evidence as sworn to by the witnesses. and would not try the case on what he had read or heard, and could do fair and impartial justice between the state and the defendant; that he did not remember having read the testimony given before the coroner's jury.

"In Conatser v. State, 12 Lea, 436, we had occasion to review the decisions of this court upon the competency of jurors in criminal cases, and to ascertain the general principles which might be considered as settled thereby. We found that the question whether the nature and strength of a juror's opinion are such as in law necessarily raise the presumption of partiality, is one of mixed law and fact, to be tried as far as the facts are concerned, like any other issue of that character, upon the evidence, and that the finding of the

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