141 Tenn. 502 | Tenn. | 1918
delivered the opinion of the Court.
The plaintiff in error was indicted for murder, convicted of involuntary manslaughter, and has appealed in error to this court.
A preliminary motion is made by the State to strike the hill of exceptions from the transcript. This motion must be granted as to that portion of the bill of exceptions containing the evidence heard upon the trial of the case. The bill of exceptions was not signed and filed at the trial term, nor within sixty days thereafter. And consequently so much of the bill of exceptions as contained proceedings at the trial term must go out. Dunn v. State, 127 Tenn., 267, 154 S. W., 969.
A motion for a new trial was made, but the hearing of this motion was continued until a subsequent term, the bill of exceptions taken at that subsequent term
On motion for a new trial it was made to appear that during the hearing of the case one of the jurors received tidings that his child was quite sick. The trial was suspended, and the juror excused ■ temporarily by the court and sent to his home in charge of an officer. The child died. The juror remained at his home a portion of two days and one night. The officer was at the juror’s home likewise, hut the latter was permitted to spend a portion of the night in the room with his wife, the two Being alone, and the next day the juror and his wife rode together to the child’s funeral, and at the funeral another woman was seen to talk to the juror out of the officer’s hearing, and it appears that on the way to the graveyard, and at that place, the juror was permitted to move around at some distance from the officer so that others might talk with him out of the officer’s hearing.
Concerning these things the officer testified that he had received instructions from the court as to the custody of the juror, and the officer said he did not think anything improper occurred, and that he did not. think anybody except the juror’s wife talked with the latter. It. is well settled in Tennessee that the separation of the jury in a felony case, and the possibility that a juror has been tampered with and received other impressions than those derived from the testimony in court, renders the verdict prima facie vicious. The
It is obvious that the officer in charge of the separated juror in this case made no satisfactory explanation of the matters heretofore mentioned. The officer was not positive about any of his statements, and the statements made were insufficient.
It is insisted for the State that this error is not available to the plaintiff in error here, because it does not appear from the affidavit filed in support of the motion for a new trial that plaintiff in error was ignorant of the juror’s conduct during the further progress of the trial below. It is insisted that the defendant below, if not ignorant thereof, should have called the attention of the court to the actions of this juror immediately upon the, juror’s return from the funeral, and at that time procured the entry of a mistrial and saved further proceedings. For this proposition the State refers to Thomas v. State, 109 Tenn., 688, 75 S. W., 1025. This case, and Preston v. State, 115 Tenn., 343, 90 S. W., 856, 5 Ann. Cas., 722, Hobbs v. State, 121 Tenn., 413, 118 S. W., 262, 17 Ann. Cas., 177, and others that might be mentioned, hold that it is generally the duty of a defendant to promptly call the court’s attention to any impropriety occurring during the progress of a trial, and that a defendant will not be allowed to remain silent and experiment with the court and
All of these cases proceed on the idea of waiver. It has been held, however, in Long v. State, 132 Tenn., 649, 179 S. W., 315, that a defendant may not, in a felony case, agree to the separation of the jury.
Nor do we think chapter 32 of the Acts of 1911 can be applied hero. The act of 1911 is to be invoked only where this court can look to the merits of the controversy. Where the whole case is before us and we can see that the merits have been reached, there will be no reversal for errors not affecting the merits.
Upon this hearing, however, we are prevented by the motion of the State, first above referred to and granted, from considering the merits of this case. The bill of exceptions containing the evidence heard upon the trial goes out. The State submits this case on technical grounds. It is always permissible to meet a technicality with a technicality, and under the holding in Long v. State, supra, the separation of the jury cannot be referred to as a technical error.
It results that the motion of the State to strike is sustained as to that portion of the bill of exceptions relating to the proceedings at the trial of this case, and the costs of incorporating such' matters in the transcript will be taxed to plaintiff in error. For the reasons above indicated, however, the case must be reversed and remanded for a new' trial.