Wireman v. State

• Decision Date: 14 October 1922
• Citation: 244 S.W. 488,146 Tenn. 676
• Parties: WIREMAN v. STATE.
• Court: Tennessee Supreme Court

244 S.W. 488

146 Tenn. 676

WIREMAN v. STATE.

Supreme Court of Tennessee.

October 14, 1922

Error to Circuit Court, Claiborne County.

John Wireman was convicted of murder in the first degree, and he brings error. Affirmed.

Assistant Attorney General Wm. H. Swiggart, Jr., for the State.

McKINNEY J.

The plaintiff in error was convicted of murder in the first degree for killing Robert Roark, and was sentenced to the state penitentiary for life. He has appealed to this court and has assigned errors.

The plaintiff in error testified in his own behalf and admitted his guilt, which is abundantly shown by the record, and no error is assigned as to the facts.

The defense relied upon is immunity from indictment by virtue of section 7048 of Shannon's Code, which provides as follows:

"And no witness shall be indicted for any offense in relation to which he has testified before the grand jury."

The facts are that while the plaintiff in error was incarcerated in the county jail, charged with killing the deceased, Roark and before the finding of the indictment, he was taken by the jailer before the grand jury and interrogated as to the killing. He came in response to no subp na issued by order of the grand jury or the Attorney General, and, in fact, he was not subp naed as a witness to testify before the grand jury but the contention of the state is that he appeared and testified voluntarily.

The jailer testified that the plaintiff in error requested him to take him before the grand jury, so that he could tell who it was that procured him to kill Roark. The foreman of the grand jury testified that he was advised by the jailer that the plaintiff in error wanted to appear before the grand jury, and that he told him to let him come. The foreman further testified that, upon his arrival and before he had made any statement, he told him that he would not have to divulge anything that would incriminate himself, and the plaintiff in error admits this to be true.

The only evidence indicating that the plaintiff in error testified otherwise than as a volunteer is found in his statement that he agreed to go before the grand jury because the jailer told him that he would have to testify before that body.

The plaintiff in error filed a plea of not guilty and six pleas in bar. By the latter he undertook to set up his immunity. Upon motion of the Attorney General said pleas in bar were stricken, but later the trial court, upon reconsideration, permitted said pleas to stand, and in his charge undertook to instruct the jury pertaining to the defense set up therein. The errors assigned relate to the charge of the court upon this matter, and we deem it unnecessary to set out said pleas in detail and to copy herein the assignments of error relied upon by the plaintiff in error.

A preliminary question has been raised by the state to the effect that the immunity granted by the statute is from "indictment," and that the privilege afforded by the statute is a matter to be pleaded in abatement, and should be deemed to have been waived by a plea to the merits of the indictment.

In 16 Corpus Juris, 96, it is said:

"Immunity is a personal privilege, and may be waived; and it is waived if not seasonably asserted, and the testimony is regarded as voluntary."

In Bank v. Marr, 13 Lea, 108, this court said:

"The general rule undoubtedly is, and has been repeatedly recognized by this court, that appearance and defense to the merits waive all defenses which go merely in abatement of the writ or action. And this for the obvious reason that a party may prefer to contest the right involved without testing the regularity of the proceedings."

In State v. Hatfield, 3 Head, 231, it was held that this statute must be strictly construed.

The immunity provided by the statute is from indictment, and not from prosecution or punishment. So that, if it should...