Ryan v. State

• Decision Date: 22 July 1896
• Citation: 36 S.W. 930
• Parties: RYAN v. STATE.
• Court: Tennessee Supreme Court

Page 930

36 S.W. 930

RYAN v. STATE.

Supreme Court of Tennessee.

July 22, 1896.

Error to criminal court, Shelby county; L. P. Cooper, Judge.

Ed Ryan was convicted of murder, and brings error. Reversed.

E. E. Wright, for plaintiff in error. Atty. Gen. Pickle, for the State.

McALISTER, J.

The prisoner was convicted in the criminal court of Shelby county of murder in the second degree, and sentenced to the penitentiary for a term of 10 years. Since the judgment of the lower court must be reversed for errors committed in the conduct of the trial, we pretermit any discussion of the facts.

The first assignment of error we will notice is based upon the misconduct of the jurors. It was shown upon the motion for a new trial that one Reasonover, one of the jurors that tried the case, had stated at some time during the progress of the trial, in the presence of several other jurors, that he (Reasonover) was a member of the grand jury when the defendant, Ryan, had been indicted for an attempt to commit murder upon one Kehoe, and the facts of that case were that Ed Ryan, the defendant, went up behind Kehoe, who was stooping over a water pipe, and hit him with a heavy wrench, and that case was still pending in the criminal court. It was also shown that at another time Reasonover had stated to some of the jury that Ed Ryan was a bad man, or a dangerous man to the community, or words to that effect, — the exact language not being remembered. The court, it appears, had permitted the attorney general to ask the defendant, on cross-examination, if he had not been indicted for an assault on one Kehoe. Counsel for defendant objected to this question. The objection was overruled by the court. Thereupon counsel for defendant demanded the best evidence of this charge, whereupon the attorney general introduced the original indictment, which charged that Ryan had premeditatedly, willfully, maliciously, and feloniously made an assault upon the body of Kehoe, with intent to commit murder in the first degree. The circuit judge, in his disposition of the question of the misconduct of the juror, stated that there was no material difference between the language used in the indictment, which was properly in evidence, and the language used by the juror, which is made the subject of criticism and the basis of a new trial. The circuit judge also found that the remark of Reasonover in respect of the assault of Ryan upon Kehoe was not made after the jury retired to consider their verdict, but was casually made sometime during the progress of the trial, and was not heard by all the jury, and was not made when they were discussing the question of the guilt or innocence of the defendant, but was made by Reasonover when he was reciting to his fellow jurors his reasons for not wishing to serve upon the jury. The circuit judge also stated in his opinion that all the other jurors who tried the case were examined before the court, and, without exception, testified that the statement casually made by Reasonover as to the assault made by the defendant upon Kehoe did not in the least affect their opinion as to the innocence or guilt of the defendant. The court also found that the evidence that Reasonover stated to some of the jury that Ryan was a dangerous man to the community, or words to that effect, is very indefinite and unsatisfactory. Says the court: "The affidavit [of Monteith, one of the jurors] does not fix the time when this language was used by Reasonover, and Monteith fails to state, when a witness on the stand, that Reasonover used this language, but, on the contrary, says that, while the question as to the admissibility of the evidence of other indictments against Ryan was being argued before the court, he drew the conclusion, from what Reasonover said, that Ryan was a bad man. Some of the other jurors, in an indefinite way, did say that they heard some such language as that used, without fixing the time, but none of them said that it was used while they were considering the evidence in the case as to the guilt or innocence of the defendant. Reasonover himself denies using such language," etc. The court continues: "The evidence of Reasonover upon this point is not contradicted by any other evidence in the case, nor is there any evidence in the case showing that any such language was used, if used at all, except at the time fixed by Mr. Reasonover, to wit, when the question as to the admissibility of these indictments against Ryan for other crimes was being argued before the court. There is no evidence that any such language was used in the jury room after the case had been closed, and was given to the jury, under the charge of the court, to consider of their verdict upon the guilt or innocence of the defendant," etc. "Upon all the evidence the court is of opinion that while there was some irregularity, and perhaps improper talk, on the part of Reasonover, before the case was finally submitted to the jury for their consideration as to the guilt or innocence of the defendant, yet the court is of opinion that nothing occurred that was calculated improperly to influence the verdict of the jury, or that was...