Roberts v. State
| Decision Date | 25 January 1923 |
| Citation | 247 S.W. 101,147 Tenn. 323 |
| Parties | ROBERTS v. STATE. |
| Court | Tennessee Supreme Court |
Error to Circuit Court, Henderson County; N. R. Barham, Judge.
Oscar Roberts was convicted of a crime and brings error. Judgment reversed and cause remanded.
McCorry & Anderson, of Jackson, and John F. Hall and T. A. Lancaster both of Lexington, for plaintiff in error.
Thos L. Cornelius, Asst. Atty. Gen., for the State.
Plaintiff in error was convicted of receiving and concealing stolen property, to wit, a Ford automobile belonging to W. F. Boren. The assignments of error are based upon, (1) the court's action in striking the plea in abatement filed to the indictment; (2) upon the preponderance of the evidence in his favor; (3) the court's action in declining to charge the jury in accordance with special request; (4) the admission of testimony; (5) the disqualification of a juror; and (6) upon newly discovered evidence.
The plea in abatement which was stricken avers in substance that one W. L. Moore, who signed the indictment as foreman and who acted as a member of the grand jury in preferring the indictment, had not been selected and appointed to that office by the county judge of Henderson county, nor had he been selected as a member of the grand jury as required, and the plea referred to the acts of the Legislature which provided the method for the selection of a grand jury and the appointment of a foreman. The plea further sets forth that only 11 jurors were selected by the court from the list furnished by the jury commission; that the county judge had appointed one J. R. Dennison as foreman, and the court instead of allowing and permitting the said Dennison to act as foreman of the grand jury, appointed said Moore. The plea sets forth facts tending to show that there existed no conditions which would disqualify the regular foreman appointed by the county judge from acting, and to show that the circuit judge was without authority to appoint a different foreman for the grand jury.
The court, in the order striking the plea, based its action upon the ground that the acts of the Legislature of 1921, providing a method for the selection of a grand jury, were unconstitutional, and that therefore the selection of the jury was regulated by chapter 37 of the Acts of 1919. This ground of the court's action was one of the grounds upon which the motion of the district attorney to strike the plea was based. There were other grounds of the motion, and if either of the grounds be well taken, the action of the trial court should be sustained. One ground was that the court could judicially know the county judge of Henderson county was a member of the bar, a practicing attorney before the court, and therefore he was incompetent to appoint a foreman of the grand jury. Another ground was that the foreman who signed the indictment was a de facto officer, acting under a color of office, and his acts were therefore valid.
The Attorney General of the state in his brief to affirm the judgment, does not rely upon the reason given by the trial court for his action, nor upon any of the other grounds urged by the district attorney below. The contention of the state is:
"Without discussion or effort to sustain the grounds set out in the motion by the Attorney General to strike, or by the trial judge in sustaining the motion and striking the plea in abatement from the files, the state now respectfully submits that the action of the trial judge in striking the plea in abatement from the files on the motion of the state was without error, for the reason that the plea in abatement was clearly duplicitous (double?), and for that reason bad as a plea to the indictment."
The contention is that the plea presents questions of constitutional law to be determined before the question as to the selection of the grand jury could be inquired into. In support of this contention, reliance is had upon the case of Trabue v. Higden, 4 Cold. 620. We are unable to agree with this contention of the state. It is true that a plea is bad for duplicity when it presents two or more issues, one of law and another of fact. The purpose of a plea is to make an issue of fact, but it does not follow that because there is more than one distinct fact...
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