121 Tenn. 413 | Tenn. | 1908
delivered the opinion of the Court.
This is an appeal from a judgment pronounced on the verdict of the jury, finding plaintiff in error guilty of selling intoxicating liquor without license. It is unnecessary to set out the evidence upon which the conviction rests. It is sufficient to say we are satisfied that the jury were warranted by the evidence in finding the plaintiff in error guilty of the offense charged within twelve months prior to the presentment in the case.
The ground, however, on which it is earnestly insisted a reversal should be had, is that the minute entry showing the arraignment, trial, and verdict failed to recite that the jury were sworn.
This objection is made for the first time in this court. If the fact was that the jury were not sworn, and this had been called to the attention of the court below,
The principle controlling in this case will be found illustrated in Clark, v. State, 8 Baxt., 591, and Robertson v. State, 4 Lea, 425. In the first of these cases the prisoner had appealed from a death sentence upon a conviction for murder, and it was earnestly pressed upon the court as reversible error that the record failed to show that the officer in charge of the jury was duly sworn. Notwithstanding the established rule that the jury in a felony case, on retiring, must be in charge of a sworn officer, and if the record attempts to set out the form of the oath it must be stated correctly, yet it was held in that case, in the absence of a recital in the record, it would be presumed that the officer was sworn and that the proper oath was administered to him. In the course of the opinion it was said: “We have no evidence in this case that the officer was not sworn, and we
But it is not necessary to rest our conclusion in this case upon a mere presumption. We place it upon the stronger ground that the objection noAV urged was not made in the court below, and it comes, therefore, too late. Failing to present it at the proper time, we think, both on reason and authority, that it Avas waived. In the Encyclopedia of Pleading and Practice, vol. T2, p. 519, it is said: “Irregularity in the administration of the oath to the jury, or in the form of the oath, may be waived by going to trial without objection. When a party desires to avail himself of irregularity in the administration of the oath to the jury, the attention of the court should be called to it at the time the oath is taken, and he cannot sit by silently, and take chances of* a favorable judgment, and subsequently have advantage of objections to such irregularity.”
The text of this work is abundantly supported by cases, both criminal and civil, found in reports of many States. In our own court, in the civil case of Looper V. Bell, 1 Head, 376, an objection tvas made to the manner in which the jury were sworn, and a reversal was asked on the ground of irregularity in this regard. The answer, however, was: “The defendant and his counsel were present when the jury were sworn, and did not then complain, and cannot now be heard in this court upon the question.” The soundness of this rule' was recognized in the case of Preston v. State, 115 Tenn., 343, 90 S. W., 856.
In State v. Baldwin, 36 Kan., 1, 12 Pac., 318, the minute entry did not set out the form of oath to be administered to the trial jury, as required by the statute of that State. On appeal, in answer to the insistence that this omission was fatal to the judgment of the lower court, in the course of its opinion, the supreme court said: “A still more conclusive answer on this point is that no objection was made to the form of oath when it was administered, or any time prior to its presentment in this court. If there was any irregularity in this respect, it should, and probably would, have been objected to at the time it occurred. It is quite unlikely that there was any departure from the’form of oath so
This case was subsequently taken by Baldwin, the prisoner, by a writ of error to the supreme court of the United States, where it was urged that the jurors were not sworn according to the form of oath of Kansas, and that the prisoner, in effect, had been tried by an un-sworn jury, and that, therefore, the jury was not a legally constituted tribunal, so that, if the judgment of the supreme court of Kansas was permitted to stand, the prisoner would be deprived of his life without due process of law. On the hearing of the case, in an opinion delivered by Blatchford, Justice, and reported under the title of Baldwin v. Kansas, 129 U. S., 52, 9 Sup. Ct., 193, 32 L. Ed., 640, the reasoning and holding of the supreme court of Kansas on this question were approved. See, also, the case of Smith v. State, 63 Ga., 168.
Oases to the contrary may be found; but we are satisfied, upon examination, it will be seen that they rest upon statutes peculiar to the States in which they originated. We have no statute in this State, called to our attention, which requires us to reverse a cause, either
Bass v. State, 6 Baxt., 579, which seems to announce a contrary view, was overruled by this court at Nashville, December term, 1905, in the case of Arthur Pearson v. State, unreported, from Wayne county.
There is no error in the record, and the judgment of the circuit court is therefore affirmed.