77 Tenn. 373 | Tenn. | 1882
delivered the opinion of the court.
The plaintiff in error having been convicted of selling an intoxicating beverage within four miles of an incorporated institution of learning, appealed in error.
After the State had exhausted its peremptory challenges, the attorney-general asked a person tendered as a juror if he did not have a suit pending in the court, and he replied that he had, on a previous day of the term, been tried and acquitted. The trial judge, over the objection of the defendant, held the person incompetent to serve as a juror, and he was set aside for this cause. A jury having been selected, the clerk, under the direction of the court, proceeded to swear, and had sworn eight of them, when one of the number informed the clerk that he had a suit in court, and the clerk stated to the judge what the juror said.
The Code, see. 3988, forbids the appointment of any person to serve as a juror “who has an action pending in the court at the term to which he is nominated.” By section 4010 either party is permitted to challenge for cause “any person who has a suit then pending for trial at the same term of the court.” It is very obvious that the first person presented above as a juror should not have been appointed because he did have an action, pending in the court at that term, although it may have been tried before he was presented as a juror. The incompetence is not made to depend upon the order of time in which a case may be heard at the term, but on the fact of having a suit pending at that term. In the matter of the other juror, it is obvious that the act of the clerk in proceeding to swear the entire jury, without the direction of the court, before the attorney-general had caught the fact announced and
The State introduced three witnesses, each of whom testified to a sale to him by the defendant, on the 8th or 9th of November, 1881, of one or more drinks of cider “spiked” with an intoxicating beverage. That is, the sale and purchase were of cider by the drink, the purchaser being allowed to add to it spirituous liquor according to his taste. The jury, on a proper charge, would of course be warranted in finding the defendant guilty of selling an intoxicating beverage, especially as one of the witnesses admitted the repetition of his potations of the “ spiked ” cider until he was actually intoxicated. The defendant objected to the introduction of testimony of more than one offense, and, on the objection being overruled, moved the court to require the attorney-general to elect on which one
Without pausing to consider whether the Legisla-
The judgment will be reversed, and the cause remanded for a new trial.