27 Tenn. 597 | Tenn. | 1848
delivered the opinion of the court.
The plaintiff in error was indicted in the circuit court of Hardeman county, for murder, and was found guilty of murder in the first degree by the jury.' A new trial was moved for, and refused, and he appealed to this court.
Several grounds of error are insisted on here for the reversal of this judgment. 1. It is contended the indictment is bad, because it is in the common law form, and does not charge in the words of the statute, the offence of murder in the first degree.
This question was made, and ably, and earnestly pressed upon the consideration of the court, in the case of Mitchell vs. The State, 5 Yerg. R. The construction which was given to the statute in that case, has met with such general approval by the profession, that the correctness of the decision had never been questioned in this court, until now. We regard it as the settled law of this court, not now open to debate. 2. It is insisted the court erred in'setting aside L. O. Stewart, and refusing to permit him to be sworn on the jury. The record shows, that Stewart had.been called up, and sworn upon the voir dire, and in answer to questions by the court, stated that he had not formed or expressed an opinion in relation to the guilt’ or innocence of the defendant; that he was a householder or free-holder of the county of Hardeman; and that he was not of kin to the prisoner or prosecutor; and thereupon the court pronounced the said Stewart a good and lawful juror, and he was then accepted by the attorney general on the part
But in this case, it is not questioned but that the cause shown, was sufficient to authorize the discharge; but it is insisted, that the time had passed for pronouncing a judgment thereon. We think that until the jury shall be sworn in the case; the court may, for any good cause, discharge a juror that has been selected, and. select another in his place.
3. The defendant moved for a new trial upon the affidavit of Henry A. Barry; which states, that after S. McNeely and others had been selected to serve on the jury, and had been placed in charge of an officer, and by the court charged to keep together, and converse with no one, the affiant saw the said McNeely separated and apai’tfrom the other jurors, and from the officer who had them in charge. The attorney general opposed the motion for a new trial, and introduced the affidavit of Silas McNeely, the juror who had separated from his fellows, which states, that the morning of the 1st of July (the time mentioned in Barry’s affidavit) the officer who had the jurors, placed in his charge, left the room at the Hotel where said jurors were; and that during his absence, the affiant was suddenly taken very ill with diarrhoea, and could not wait for the return of the officer; but in consequenee of the suddenness and violence of the attack aforesaid, was compelled to leave the Hotel to obey the calls of nature; and therefore he did retire a short distance from the Hotel for the cause aforesaid; but (was not separated from his fellows more than ten or fifteen minutes. While thus absent affiant saw Mr. Barry (whom he did not then know,) and requested him to send the constable to him, as he was sick and unable to return to the jury. Affiant saw some other gentleman, thirty yards from him, who asked affiant what was the matter; and affiant simply answered that he was sick from the attack aforesaid. This is all the conversation affiant had, while thus separated, and he was not
The principles laid down in these cases are, 1. That the fact of separation having been established by the prisoner, the possibility that the juror has been tampered with, and has received other impressions than those derived from the testimony in court, exists, and prima facie, the verdict is vicious; but 2nd. This separation may be explained by the prosecution,' showing that the juror had no communication with other persons, or that such communication was upon subjects foreign to the trial, and that in fact, no impressions, other than those drawn from the testimony, were made upon his mind. But 3.; In the absence of such explanation, the mere fact of separation is sufficient ground for a new trial. Taking these principles as the settled law of this court — the question is, whether the separation of the juror, McNeely, is satisfactorily explained. And we think it is not. The only witnesses who gives any explanation whatever, is the offending juror. This affidavit, it is true, excludes the possibility that he was tampered with, if his testimony shall be deemed sufficient to establish the fact. But we do not think this affidavit can be relied on as proof of the innocence of his conduct. He was in contempt of the court, for a violation of its order, and a disregard of his solemrf duty. He has, therefore, every motive of interest to shield himself, as far *as possible from blame. Besides, if he were base enough to permit persons to tamper with him, he would scarcely scruple to make a false statement to protect himself.
We think, therefore, that to hold that the affidavit of the offending juror only, was sufficient to explain his separation from his fellows, would establish a precedent, which would in effect destroy the rule, that a separation of the jury is cause for a new trial; The fact that jurors were not sworn, can make no difference. The evil is the same in this case, as if the facts