Tomasson v. State

• Decision Date: 23 December 1903
• Citation: 79 S.W. 802
• Parties: TOMASSON v. STATE.
• Court: Tennessee Supreme Court

79 S.W. 802

TOMASSON v. STATE.

Supreme Court of Tennessee.

December 23, 1903.^*

Appeal from Criminal Court, Montgomery County; T. F. Martin, Special Judge.

E. M. Tomasson was convicted of involuntary manslaughter, and appeals. Reversed.

Gholson & Lyle, Daniel & Daniel, W. M. Brandon, A. S. Caldwell, and Matt G. Lyle, for appellant. Chas. T. Cates, Atty. Gen., for the State.

WILKES, J.

The defendant was indicted for murder. Upon the trial the jury found him guilty of involuntary manslaughter, and he was sentenced to one hour in the county jail and to pay the costs of prosecution.

This was all prior to the last term of this court, and to that term the defendant prayed an appeal, which was dismissed because no judgment had been rendered in the court below upon the verdict of the jury. The order of this court was that the cause be remanded to the lower court, in order that judgment might be rendered on the verdict; and this was done, and defendant has again appealed. Defendant insists that such irregularities occurred in the proceedings in the court below in impaneling the jury that he is entitled to a reversal of the judgment, and to be discharged.

It appears that a jury was selected, impaneled, and sworn. They took their seats in the jury box. The defendant was arraigned, and both the state and defendant announced ready for trial. Thereupon the court adjourned for dinner.

After dinner the trial judge, upon his own motion, called up two of the jurors who had been selected, impaneled, and sworn, and, after asking them some questions, discharged them from the jury — one because of relationship to the defendant, and the other because he had not been a resident of the county for a time sufficient to render him competent to sit as a juror.

The defendant objected to the discharge of the jurors, and protested against the formation of a new jury by supplying their places.

The trial judge overruled the objection, and directed the clerk to place in the hat the names of five members of the regular venire, who had not answered to their names on the original call. The defendant, still protesting upon being forced to go further into the trial, insisted that, if it was proceeded with, he should have a new venire, and it was thereupon ordered by the court after the five names had been exhausted.

The names of the new venire, 15 in number, were then placed in the hat, and from this number 2 jurors were selected instead of the 2 who had been discharged. Defendant, while objecting to going further into the trial, made no specific objection to the two jurors selected. He moved for his discharge, and filed his plea or motion of "once in jeopardy," all of which the trial judge overruled, and required him to go to trial, with the result as stated.

This action of the court is assigned as error, and it is insisted that defendant is entitled to his discharge. He also says that he is not guilty, but acted strictly in self-defense. The verdict of the jury in the case is peculiar and inconsistent, and defendant does not object materially to the feature of imprisonment, but objects to being taxed with the costs, which amount to several hundred dollars. It is this cost incurred in the trial, rather than the sentence of confinement, that is complained of.

The question presented is, has the defendant been placed twice in jeopardy by the proceedings in the court below?

In Mahala v. The State, 10 Yerg. 532, 31 Am. Dec. 591, it is held that a jury in a criminal case cannot be...