Sadler v. State

• Decision Date: 30 March 1911
• Parties: SADLER v. STATE.
• Court: Tennessee Supreme Court

136 S.W. 430

124 Tenn. 50

SADLER v. STATE.

Supreme Court of Tennessee.

March 30, 1911

Error to Criminal Court, Davidson County; W. M. Hart, Judge.

William Sadler was convicted of selling intoxicants within four miles of a schoolhouse, and he brings error. Affirmed.

Turney & Turney and Cherry & Steger, for plaintiff in error.

Attorney General Cates, for the State.

GREEN J.

The plaintiff in error was convicted of selling intoxicating liquor within four miles of a schoolhouse, was fined and sentenced to six months in jail, and has brought his case to this court.

No assignment of error upon the facts is made here, it being conceded that the evidence is sufficient to sustain the verdict.

On the trial below, a plea in abatement was interposed by the defendant there, which plea was demurred to by the state, and the demurrer sustained.

Two grounds of the plea in abatement are relied on as errors here and properly assigned.

The first is that one Will Jones, whom the record shows to have been appointed grand jury officer, was present in the grand jury room during the examination of witnesses from the testimony of whom it is supposed this presentment was found.

The statute on this subject is as follows:

"Whenever required by the grand jury, the prosecuting attorney may attend before it for the purpose of giving legal advice as to any matters cognizable by them, but shall not be present, nor shall any other officer or person, when the question is taken upon the finding of an indictment." Shannon's Code, § 7041.

It will be observed that the prohibition against persons being present in the grand jury room is directed particularly against their presence "when the question is taken"; that is to say, the statute prohibits the presence of any person when the grand jurors vote on the finding of an indictment. There is nothing said in respect to the presence of court officers or other persons during the examination of witnesses.

The policy of the law required that the investigations of a grand jury should be in secret, and their sessions are not open to the public. It is improper for a court officer to unnecessarily enter or remain in the grand jury room. Such conduct on his part should be rebuked and punished by the trial judge. While such a course is highly reprehensible, yet in a case like this we are not willing to go to the extent of holding that the casual presence of a court officer in the grand jury room during the examination of witnesses should have the effect of vitiating an indictment or presentment that is, unless there is some showing that the officer attempted to interfere with or influence the grand jury in its action.

So far as we know, this court has not expressed itself on this proposition in any reported case, although there have been oral opinions on this subject to the effect that the presence of a grand jury officer in the room during the examination of witnesses did not vitiate an indictment or presentment.

It has been held by the courts of other states that, since it is customary to have officers in attendance upon grand juries and in the performance of their duties it is often necessary for such officers to enter the grand jury room, the mere fact that an officer is present during the examination of witnesses "will not vitiate an indictment, in the absence of proof that he influenced or attempted to influence the jury in making its finding." 20 Cyc. 1341; State v. Kimball, 29 Iowa, 267; Richardson v Commonwealth...