99 Tenn. 569 | Tenn. | 1897
The plaintiff in error was convicted in the Circuit Court of Sevier County of the crime of robbery, and his term of imprisonment fixed by the jury at confinement in the State prison for the term of five years and six months. He has appealed in error.
The first assignment is that the conviction is not supported by the facts. The record discloses that on the night of November 7, 1896, the house of J. A. Burnett, in Sevier County, was entered by three masked men, and seventy-one dollars in money extorted from Mr. Burnett at the point of a pistol. The inmates of the house were aroused from sleep by a “lumbering noise” like violent kicks upon the door, and immediately three men, partially disguised, entered their sleeping apartment. They forced the daugher, a" young lady about eighteen years of age, to get out of bed and light a lamp. One of the robbers held Mrs. Burnett down under the cover while the others forced Mr. Burnett into an adjoining room, where they supposed the money "was concealed in a bureau drawer. The bureau, however, which one of the robbers expected to find in that room, had been removed, and search was then directed to the bedroom. Burnett told them to take him back into that room and his wife ■ would tell them where the money was. In the meantime Burnett was knocked down and covered with pistols. Mrs. Burnett, at the request of her husband, finally produced the money and handed it to the robbers.
There can be no doubt, in our opinion, that the defendant, Joe Jenkins, was one of the perpetrators of this crime. He is shown to have lived at one time within half a mile of the prosecutor, and was frequently at the latter’s house. He had knowledge of the fact that the prosecutor was a government pensioner, and had just drawn his pension money. He had knowledge also that a bureau had been in the room across the hall, where the pension money was probably kept, and this fact accounts for the conduct of the robbers in immediately forcing Mr. Burnett into that room as soon as they entered the house. The bureau, however, had been removed from that room. It is further shown that while the robbers were in the house, the lamp was turned over, igniting the oil and causing a bright glare in the room. The mask of the defendant, Joe Jenkins, fell from his face, and he was distinctly recognized by Mr. and Mrs. Burnett, their daughter Maggie, and son Ollie, all of whom had known him well. These
Defendant undertook to overthrow all these incriminating facts and circumstances by the defense of an alibi. He testified that on the night of the robbery he was in Sevierville; that he remained at Baker’s shop in said town until eight o’clock, when, in company with Pleas Wynn, George Thurmer, and Jep Jenkins, he went to a room in the storehouse of Yett & Trotter, where he engaged in playing cards until perhaps half past eleven o’clock; that he heard the clock strike twelve just after he got in bed; that he was not at the Burnett house that night, and had not been there for twelve months. Defendant introduces his card-playing companions as witnesses in support of the alibi. It is. shown that Pleas Wynn, one of the alibi witnesses, is under indictment for complicity in this, offense, and also for the murder of the Whaley family in Sevier County. George Thurmer, another witness for defendant, is also under indictment for this crime, and admits he has served a term in the penitentiary for murder.
Error is assigned upon the action of the trial Judge in excluding one of the jurors. The record shows that after the panel had been elected, but before they were sworn, the attention of the Court was called to the fact that one of the jurors, J. L. Romines, belonged to an unlawful organization known as whitecaps, and was therefore incompetent as a juror. The Court thereupon proceeded to investigate said charge, and, from the testimony of witnesses, based on general rumor, became satisfied that said juror was a member of said order,, and thereupon discharged the juror from said panel. Another juror was then selected, and the panel was sworn. It appears that when the jury was thus completed, defendant had not exhausted his peremptory challenges. It is said that his Honor, in excluding the juror, Romines, acted under authority conferred by Sec. 3, Ch. 52, Acts 1897, entitled “An Act to prevent and
In Tennessee, to be competent as a juror, (1) the person must be a man; (2) he must be a citizen; (3) he must be twenty-one years of age; (4) he must be a freeholder or householder; (5) he must be of sound mind; (6) he must be in full possession of the senses of hearing and seeing. The foregoing may be considered as the positive qualifications of a juror. The want of any one of them is cause for challenge. But although these qualifications exist, he
There are other causes of challenge, as that the juror has prejudged the'case, or that he entertains such views about the case or the party as will prevent him from looking alone to the evidence for his verdict. Caruthers’ History of a Lawsuit, Sec. 202.
We think it was within the competency of the Legislature to further add to these statutory disqualifications, and exclude from jury service all persons shown to be engaged in a general conspiracy against law and order. This question was somewhat considered by the Supreme Court of the United States. Clawson v. United States, 114 U. S., 477. Congress had enacted a law which provided ‘'that in any prosecution for bigamy, polygamy, or unlawful
It is further objected that the trial Judge, in excluding the juror, acted upon. the testimony of witnesses whose information was based merely upon rumor. The juror himself did not deny the rumor, and we think the Circuit Judge was fully warranted, from the silent acquiesence of the juror and the general rumor prevailing in the community, in holding him incompetent as a juror under the statute. Section 5822, Shannon’s Code, provides “that the Court shall inquire as to the existence of either or all of said causes of challenge (already enumerated) by the oath of the party or by such other testimony as the Court, in its discretion, may desire to hear on behalf of either party.” Section 5818, Shannon’s Code, also provides, viz.: ‘'The Court may discharge a grand or petit juror from service who does not possess the requisite qualifications, or who is exempt or disqualified from such service, or for any other reasonable or proper cause, to be judged of by the Court.”
We think the action of the trial Judge, in excluding the juror, was amply justified under either or all of the provisions cited. .
Affirmed.