65 Tenn. 614 | Tenn. | 1872
delivered the opinion of the court.
This is an indictment for rape, alleged to have been committed on Eliza Ann Morris by one Percell, in which the present defendant is alleged to have been present, aiding and abetting and assisting said Percell in the perpetration of the act, and so guilty of the same offense. Bloodworth was convicted, and appeals in error to this court, where several errors are insisted on for reversal of the judgment of said court below.
First, it is insisted the court erred in sustaining a demurrer to the plea in abatement filed by defendant. Said plea sets up the fact that the grand jury was composed of thirteen men; that O. P. Braden and J. G. C. Mason were members of the grand jury who found the indictment at the February term, 1872, and that the said two grand jurors had been members of the grand jury at the previous June term of the same court. It is therefore insisted that they were incompetent jurors, and the indictment, as a consequence, not found by a legally constituted grand jury, and the proceedings under it void.
Sec. 8988 provides that no court shall appoint any person to serve as a juror more than once in each period of twelve months, either on the original panel or to fill a vacancy. The next section requires the court to discharge him, if any juror is appointed in
Construing the various sections together, they mean that it is the duty of the court to discharge a party who has served within twelve months, when the matter is brought to the attention of the court; and we add, that the court should take upon itself to enquire, and discharge this duty, before the grand jury is empaneled; but this is directory, only imposing a duty on the court, but not affecting the validity of the action of such jury, if the duty is neglected. This, so far as a grand jury is concerned, is the rule; but as to a petit jury, it is the right of either party to the case to get clear of the incompetent juror by' challenge, and if he fails from proper cause to exercise this right at the proper time, it would be a conclusive waiver of it, and the verdict of the jury be valid. There was no error in the case on this point.
The next question presented arises on the facts as to the consent of the party alleged to have been the subject of the offense, or rather her incapacity, by reason of imbecility or feebleness of mind, to give such consent, and the law as charged on this question by his Honor the Circuit Judge.
The proof shows that Percell had procured a man named Cook to personate a minister of the gospel for
It is not so satisfactorily shown that the present defendant had any guilty knowledge of the purposes
As to the capacity of the girl to consent to what was done, or to refuse or oppose it, owing to mental incapacity, the evidence is meager and not entirely satisfactory. The only evidence bearing on the question directly, is that of Hr. Menees, who says that he had been a practicing physician for seventeen years, and had visited the family of Morris at intervals during that period, and had waited on Eliza Ann when she was sick. He states that “she was a woman of very weak mind, and almost an idiot.” He gave it as his opinion that she had enough mind to consent to have intercourse with a man, but that he thought she did not have mind enough to know what that consent was, &c. This is, as we have said, very unsatisfactory evidence as to the capacity of the party, and from it we could hardly be justified in concluding that she was an idiot, wholly incapable of assenting to the act complained of; nor could a court or jury well he died on to say with precisely how much intelligent comprehension of the nature and consequence of an act a party under such circumstances must have acted in order to make out the element of this offense, given in the statute, of its being forcible and “against her will.”
Without further referring to the testimony, however, it suffices to say, that it clearly appears that this
The Legislature, with their attention called to this case, can, and no doubt will, easily enact a law that
There are perhaps several other errors in admission of testimony, and, it may be, in the charge of his Honor, but we do not deem it necessary to notice them, as what we have said is conclusive of the case.
Reverse the case and remand for a new trial.