State v. Bungardner

• Decision Date: 30 April 1874
• Citation: 66 Tenn. 163
• Parties: THE STATE v. BUNGARDNER.
• Court: Tennessee Supreme Court

66 Tenn. 163

THE STATE

v.BUNGARDNER.

Supreme Court of Tennessee.

April Term, 1874.

FROM SHELBY.

Appeal from the Criminal Court. JOHN R. FLIPPIN, Judge.

L. B. HORRIGAN for plaintiff.

Attorney-General HEISKELL for the State.

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

In these cases the main question is, whether a defendant can assign as error the failure of the judge below to give his charge in writing as required by the act of 1873, ch. 57, where the judge asked the counsel of the prisoner, in the presence of the jury, if he desired a written charge, and the counsel expressly waived it, agreeing to a verbal charge.

While the statute is imperative on all the judges, and he is guilty of a failure of his duty when he does not write and deliver his charge in writing to the jury, and one that should be reprobated; and we add, while he ought not to ask the defendant to waive his performance of this duty, and is guilty of an impropriety in doing so, yet we hold, that when it appears the prisoner, by his counsel, has voluntarily and freely waived a written charge, and this led the judge to give a verbal charge, thereby assenting to what is done, and inducing such action, that he cannot be heard to assign it for error in this court. It is a long established principle of our laws that has ripened into a maxim, that “that to which a person assents is not esteemed in law an injury.” Brown's Leg. Max., 204. This maxim is so clearly applicable in this case that it needs perhaps no further discussion.

There may be apparent exceptions, such as the rule settled by our decisions, that a prisoner cannot be called on to assent to the separation of the jury trying his case, but this exception is founded in the fact that confinement of a jury is a serious personal annoyance to them, and the great danger that they may be subjected to improper influences if allowed to mingle with the general public. We can approve of the rule forbidding the court to put the prisoner in condition of refusing a relief to the jury from irksome confinement, and insisting on that which shall give them much annoyance, without seeing its application to the action of a judge who could not be assumed to be in the least degree affected by a refusal to waive his reducing his charge to writing. There can be no danger to the prisoner by such refusal, as the judge would then be compelled to write every word of his charge to the jury, and if any error is found in it, it can be revised by this...