Ward v. State

• Decision Date: 20 June 1899
• Parties: WARD v. STATE.
• Court: Tennessee Supreme Court

52 S.W. 996

102 Tenn. 724

WARD v. STATE.

Supreme Court of Tennessee.

June 20, 1899

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

A. K Ward was convicted of forgery, and brings error. Reversed.

Geo. B Peters, for plaintiff in error.

R. M Patterson, Atty. Gen., for the State.

BEARD J.

This indictment contains two counts. The first charges Ward with forging S. C. Toof's name on a check, and the second with passsing this check, knowing the indorsement of Toof's name was forgery. He was found guilty under the second count and his term in the penitentiary fixed at five years. When called to answer the indictment, the plaintiff in error filed a plea in abatement, in which he averred that he was extradited from Spanish Honduras under a proper process of extradition, by an agent of the United States, for the "offense of forgery alleged *** to have been committed by him in forging; that an indictment was found against him in the criminal court of Shelby county for the forgery for which he was extradited, as appeared from the records from said court, which are asked to be considered as a part hereof, and the same is now pending, and has never been tried." He then avers that he cannot be tried on the present indictment until he is tried for the offense for which he was extradited. After certain other pleadings, the trial judge struck out this plea, and we think properly.

The greatest strictness is required in pleas in abatement, and no intendment is made in their favor. "They must contain a full and positive averment of all material facts." 1 Enc. Pl. & Prac. 23; Grove v. Campbell, 9 Yerg. 10; Freidlander v. Pollock, 5 Cold. 495. Tested by this well-established rule, this plea was fatally defective. It leaves blank the name of the party for forgery of which Ward was indicted, and also fails to identify in any way the indictment which was the basis of the extradition.

The plaintiff in error contents himself with referring to the "record of the criminal court for this indictment, and, when found, asks that it be considered" as a part of this plea. This vital defect is sufficient answer to the error assigned to this action of the trial judge; but another answer equally conclusive is furnished by the record, and that is that plaintiff in error was never "extradited," in the sense of the rule invoked by his counsel. While it is true that this government did ask, on the ground of international comity, the authorities of Spanish Honduras to deliver Ward for extradition, and though those authorities indicated to our minister resident at the capital of Spanish Honduras their willingness to surrender Ward to an accredited agent of the United States, and this agent did bring Ward back, yet the facts are that the agent found Ward outside of Spanish Honduras, at a port in a neighboring state, on board an American ship, sailing under an American flag, returning, as Ward says, "voluntarily to this country." This is clearly a case falling within the rule announced in Kerr v. People, 119 U.S. 436, 7 S.Ct. 225, rather than that enforced in U.S. v. Rauscher, 119 U.S. 407, 7 S.Ct. 234.

Numerous errors are assigned upon the charge of the trial judge, and upon his refusal to grant certain special requests submitted by the attorneys of the plaintiff in error. Many interesting questions have been argued at the bar, growing out of these assignments, but they are not considered or determined by us, as neither charge nor request are properly brought into the bill of exceptions. At the conclusion of the evidence used in this case is found the usual statement, "This was all the evidence in the case," and on the next succeeding page begins, without any introductory clause to identify it, what purports to be the charge, simply beginning, "Gentlemen of the Jury." This is not sufficient. There must be something to make certain the charge as that of the court in the particular case, such as the formula given by Judge Caruthers in his "History of a Lawsuit,"--and "hereupon the court charged the jury as follows," or some equivalent thereof. It is the duty of the trial judge, in signing the bill of exceptions, to identify by his signature, or in some other unmistakable form, the charge which he gives, and the special requests he acts upon, and make them a part of the bill of exceptions by proper indorsement, or else see that they are embodied in the bill of exceptions, and thus leave nothing open to conjecture on the record.

The serious error, however, in this case, arises upon the action of the court with regard to one Holden, tendered as a juror. On his voir dire he was examined upon the question of opinion and prejudice, and he stated that he had been a close reader of the Appeal, containing report of proceedings of the former trials of Ward for forgery, and had formed an opinion that he was guilty of feloniously using Mr. Toof's name, and that it was only reasonable that he should have the same opinion still, but that as to this case he had no opinion. The attorney of Ward then proposed to submit to the juror a copy of the Commercial Appeal of the 2d of November, containing a report of the testimony of Mr. Toof in one of those former trials. This, upon the objection of the attorney general, was refused by the trial judge, who pronounced the juror competent; and thereupon the prisoner, through his counsel, peremptorily challenged. Having exhausted all of his challenges, he sought to challenge two other objectionable jurors presented to him, but the trial judge declined to permit him to do so. The plaintiff in error is in this record in a condition to complain of the action of the court below. The Commercial Appeal presented by the prisoner's counsel contained a full report of Mr. Toof's testimony. Among other matters testified about by this witness were a series of checks given by one Pollard, to the order of S. C. Toof, on the Union & Planters' Bank, of which the check which is the basis of indictment and conviction was one, and he pronounced them all forgeries. In addition, in that case, as he does in this, he gave a reason why his name was a forgery,--that, at the date of this check, he was in Cuba, and could not, therefore, have indorsed it. We think, in view of the fact that Holden had stated positively that he had read closely the report of these trials in the Appeal, that, for the purpose of testing his qualification to sit in this case, the prisoner's counsel was entitled to examine him on that report. In addition, it is clear the opinion which this juror had formed was a disqualifying one, and that he could not qualify himself by saying that he could give the prisoner a fair trial. An opinion formed from a personal knowledge of the facts, or from hearing witnesses state them, or from reading in a newspaper a report of the statements of actual witnesses, is a disqualifying one. Woods v. State, 99 Tenn. 186, 41 S.W. 811; Spence v. State, 15 Lea, 539. Holden fell within the rule which disqualifies, and the trial judge was in error in forcing the prisoner to challenge him peremptorily. For this reason the cause is reversed

Petition to Rehear.

(July 20, 1899.)

We have been asked by the state's representatives to reconsider our former holding as to the action of the trial judge in pronouncing one Holden a competent juror, and thus forcing the defendant to exhaust upon him one of the peremptory challenges. In disposing of this case, we held him to be a disqualified juror, upon the ground that he had formed an opinion that the accused was guilty of forgery from what Holden characterized as a close reading by him of the reports of...