Pearce v. State

• Citation: 33 Tenn. 63
• Parties: JAMES PEARCE v. THE STATE.
• Decision Date: 30 September 1853
• Court: Supreme Court of Tennessee

33 Tenn. 63

JAMES PEARCE

v.THE STATE.

Supreme Court of Tennessee.

September Term, 1853.

FROM RHEA.

The plaintiff in error was presented by the grand jury of Rhea county, at the March term, 1849, of the circuit court for said county, for illegal voting in the presidential election of 1848. The presentment, after setting out the election, time, venue, etc., is in these words: “That the said defendant did, then and there, unlawfully and knowingly vote at and in said election, he, the said defendant, not being then and there a qualified voter of said county, and then and there well knowing he was not a qualified voter in and for said county.” At the November term, 1850, of said court, the plaintiff in error was convicted of said offence, and adjudged to pay a fine. A motion for a new trial and in arrest of judgment was made and overruled, and an appeal taken to this court. The counsel for the plaintiff in error, Messrs. Smith and Collins assigned the following reason in arrest of judgment in the court below: “That the indictment does not allege what constitutes the defendant an unqualified voter in the county of Rhea,” It appeared in proof that the plaintiff in error came to Rhea county on the 14th of March, 1848, leaving his family in the county of Claiborne; that he worked on the farm of one of the witnesses until some time in August of that year, and returned to the county of Campbell to see his family, promising to return, which he did in about two months; that he voted in the presidential election of 7th November, 1848, his family still residing in Campbell; that he had expressed a desire while in Rhea, to remove to that county or to Alabama, but that his wife was unwilling to move. His honor Chas. F. Keith, presiding, charged the jury that “If, from the proof, they were satisfied that defendant had a family residing in Campbell county, and that he came to Rhea county and engaged to work for a limited time, or a temporary purpose, it would not be a change of his home; his residence would be still in Campbell county. A person can have but one domicile at the same time, and where his family and property is, in legal contemplation is his home, unless a final separation has taken place between him and his family.”

Horace Maynard, for plaintiff in error, cited 3 Roscoe's Abr. 560; Whart. 78; 1 Meigs, 600; 1 Chitty's Cr. Law, 154.

Swan, attorney-general, for the State.

TOTTEN, J., delivered the opinion of the court.

James Pearce was convicted in the circuit court of Rhea, on a presentment for illegal voting. He moved for a new trial, and in arrest, and the motions being severally overruled, he appealed in error to this court.

It is now assigned for error, first, that his honor the circuit judge erred in his instructions to the jury.

He instructed the jury, in effect, that the place where the defendant's family resided and his property is situated, is, “in contemplation of law,” to be deemed his domicile, unless in case of a permanent separation from his family. This is not quite correct. Home, residence, and business are material elements in the legal idea of domicile. Thus, Mr. Kent: “The place where a man carries on his established business or professional occupation and has a home and permanent residence, is his domicile.” 2 Kent's Com. 431, note. And so, Mr. Story: “That is properly the domicile of a person, where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Con. Law, sec. 41.

Now, it is not true that the residence of a married man's family is necessarily to be deemed his domicile. For, beside the supposed case of a separation, there may be a temporary residence,...