115 Tenn. 725 | Tenn. | 1905
delivered the opinion of the Court.
This is a presentment against the defendants, charging them jointly and in the same count with the crime of perjury. It is charged in the presentment that “Matt Wilson and Tom Russell heretofore, to wit, on the — day of March, 1903, unlawfully, feloniously, willfully, .deliberately, maliciously, absolutely, and corruptly swore falsely to a certain material matter as follows: The said Matt Wilson did procure and obtain on November 17, 1902, a certain license to sell and tipple spirituous, vinous, and fermented liquors in a certain house at the corner of College street and Public Square, in the city of Nashville and county aforesaid. Said license was regularly and duly issued by and procured from P. A. Shelton, the regularly elected and qualified clerk of the Davidson county court; he, the said clerk, then and there having the power to issue said license. At the time of the issuance of said license by the said clerk, he, the said Russell, being then and there an agent of and connected with said Wilson in said business, regularly and duly swore to a certain oath before J. E. Shelton, a regularly appointed and qualified deputy clerk of said court; said oath being material and necessary to
“ ‘I do solemnly swear or affirm that I will not, under the license I am about to obtain, knowingly permit or connive at any gambling for money, or any other valuable consideration, in the house in which I am retailing spirits, or in any other place, of which I may have control, either directly or indirectly, and if any person should game or bet to my knowledge (and I will exercise due diligence to know) I will give information thereof to the grand jury of my county at the next term of court.
“ ‘I will not sell to minors contrary to law, so help me God.
“‘[Signed.] ¡Bíatt Wilson,
“ ‘Tom Russell.
“ ‘Sworn to and subscribed before me this 17th day of November, 1902.
“ ‘J. E. Shelton,
“ ‘Deputy Clerk of Davidson County Court.’ ”
It is then charged that after the said Matt Wilson and Tom Russell had taken said oath, as aforesaid, to wit, on the — day of March, 1903, while doing business under said license in said house as aforesaid, and in violation of said oath, they, the said Matt Wilson and Tom Russell, unlawfully, feloniously, knowingly, and willfully did permit and connive at certain gambling for money and other valuable considerations in said
“So the grand jurors aforesaid do present and show on their oath aforesaid that the said Matt Wilson and Tom Russell, on the day and year aforesaid, in the county aforesaid, by means of the false swearing aforesaid, were guilty of unlawful, felonious, willful, deliberate, premeditated, malicious, absolute, and corrupt perjury^ to the evil example of all like offenders and against the peace and dignity of the State.”
This presentment was found at the June term, 1903, of the criminal court of Davidson county. And at the January term, 1906, the following entry appears upon the minutes:
“Thereupon this cause was heard by the court on the following motion of defendants to quash, viz.: ‘In this cause the defendants demur to the presentment returned by the grand jury against them, and move to quash said indictment upon the following grounds: (1) The grand jury possesses no inquisitorial power with reference to the offense charged in the indictment, and no prosecutor appeared in the case, and the name of the attorney-general is not signed thereto. (2) Said presentment charges no offense under the laws of this State, in that it does not specify any game of chance that was carried on or prosecuted by anyone within said house. It does not give the name of any game of chance so played or carried on at said house, and in undertaking to specify
“Upon argument of counsel, and due deliberation whereof, the court is of opinion that the motion to quash is wTell made, and therefore quashes the presentment herein and orders that defendants go hence.”
The State appealed, and has assigned the action of the court as error. This presentment is based upon section 993 of Shannon’s Code (section 691 of the Code of 1858), as follows: “License [for selling liquors] may be granted to a person competent to take the same, upon the following conditions: ¿ . . (3) That he [meaning the applicant for the license] and in case of a partnership that all the members thereof take and subscribe
By section 6781 of Shannon’s Code (section 4858 of the Code of 1858), it is provided: “6781 (4858). Any person who, after having taken ont a license, to retail spirituous or vinous liquors, violates the oath required previous to the issuance of his license, is guilty of perjury.”
Sections 6697 and 6698 of Shannon’s Code (sections 4793 and 4794 of the Code of 1858) define the offense of perjury, and fix its punishment at confinement in the State prison for a period of not less that three nor more than fifteen years.
The first fatal infirmity in this presentment is found in the fact that it jointly charges two defendants in the same count with the crime of perjury. In other words, the presentment is bad for duplicity. The offense charged may, of course, be committed by the defendants severally; but in the nature of things there can be no concurrence in the commission of the same act of perjury at the same time by two separate and distinct individuals.
In State v. John Roulstone, 3 Sneed, 108, it appeared that the defendants were jointly indicted in a single count for the offense of uttering obscene language in the presence of the public. The trial judge quashed the indictment for duplicity, and on appeal the judgment below was affirmed. This court, in considering an analogous question, said:
“But in that class of cases in which but one can act, two or more cannot be joined in the charge. Two cannot be guilty of the same act of perjury, barratry, and the like offense, because the act which constitutes the offense must in its nature be several and personal [citing Ohitty and Archbold].
“In perjury, as well as the offense of obscenity, the crime is committed by words spoken, and the same words uttered by one cannot be possibly applied to those which proceeded from another. If two or more be guilty, it must be by separate distinct acts. There can be no unity in the act which constitutes the crime. Each offender has to answer for himself and alone, and not for or with another.”
The next question arising on the record is in respect of the inquisitorial power of the grand jury with reference to the offense charged in the presentment.
As already seen, the presentment was not founded upon the personal knowledge of any one of the grand jurors, but upon the testimony of witnesses summoned before said grand jury at its own instance. In State v. Lee, 87 Tenn., 116, 118, 9 S. W., 426, 427, this court, in considering the inquisitorial power of the grand jury, said:
“The extent of this investigation, however, is not unlimited in all cases. It is to be determined by the offense itself and the law relating thereto. If it is an offense of which the legislature has given the grand jury inquisitorial power, witnesses may be sent for and examined, and upon their testimony a presentment may be based; but, if it is an offense with respect of which inquisitorial power has not been- especially granted by statute, the investigation must be confined to the grand jurors themselves, and in such case they can make a lawful presentment only upon knowledge or information-possessed within themselves. . . .
“The inquisitorial power of the grand jury was unknown to the common law, and it exists in this State with respect to any given offense only when expressly conferred by statute. The offense charged in the presentment before us, not having been embraced in any statute conferring such power, cannot, therefore, be law
It is conceded that no inquisitorial power ys expressly granted in the statute to the grand jury for the investigation of charges of perjury; hut the insistence on behalf of the State is that this offense may be investigated by the grand jnry under the inquisitorial power conferred in cases of gaming and tippling. The argument is that the breach of the preliminary oath by those engaged in selling liquor by retail is denounced by the statute as perjury, and, since it was committed by allowing gaming on the premises of the saloon keeper, it falls under the inquisitorial power of the grand jury touching cases of gaming; and it is especially contended that it is embraced in the inquisitorial power of the grand jury in cases of tippling, since the statutory offense of perjury wag committed in connection with tippling.
It is shown by counsel that the only provisions of the Code of 1858 granting to the grand jury inquisitorial poiver are embraced in section 5087: “The grand jury shall send for witnesses whenever they or any of them suspect a violation of the laws against (1) gaming; .(2) taking tolls at turnpikes, or toll bridges, not opened according to law; (3) illegal voting; (4) tippling; (5) disturbance of worship; (6) injuries to public buildings.”
Since the adoption of the Code of 1858, the grand jury has been given inquisitorial power over many other of
As illustrating the strictness of construction of the inquisitorial power granted to the grand jury with respect to certain designated offenses, it being conceded that such power is in derogation of the common law, several cases may be cited. In State v. Smith, Meigs, 99, 33 Am. Dec., 132, it appeared the defendant was indicted for betting on an election and no prosecutor was marked upon the indictment. The presentment was found upon evidence of witnesses sent for by the grand jury. In that case it appeared that by Acts 1824, c. 5, sec. 2, grand juries were authorized to send for witnesses to give evidence of unlawful gaming, and such witnesses were required to give evidence of any offense that might be known to them against the statutes to suppress gaming. By Acts 1823, c. 25, sec. 2, betting on an election was declared to be a misdemeanor, and the persons guilty thereof subject to punishment, as in cases of betting on any games of hazard, by the laws then in force.
The court held that betting on an election was not gaming within the meaning of the statute, and hence the grand jury had no inquisitorial power in respect of this offense.
In Harrison v. State, 4 Cold., 195, there was a present; ment against the plaintiff in error for running a horse along a public road contrary to the form of the statute; The plea in abatement averred that, the presentment was
The inquisitorial power granted by the act of 1846, it will be observed, is expressly confined to a violation of that act. But it appears from an examination of the statutes that section 13, c. 90, p. 157, Acts 1845-46, was not embodied in the Code of 1858, and is not now upon the statute book.
The opinion of this court in State v. Smith, Meigs, 99, 33 Am. Dec., 132, and Harrison v. State, 4 Cold., 195, noticed, supra, were based on the act of 1824, while the case of Glenn v. State, 1 Swan, 19, decided in 1851, dealt with the act of 1846, which was not carried forward into the Code of 1858. And thus the inquisitorial power of the grand jury in respect of statutory perjury under the act of 1846 is wholly eliminated.
In Harney v. State, 8 Lea, 113, this court said: “A tippling house is a place where spirituous liquors are sold and drank in violation of law (Bouv. Law Dict.); or, as defined by this court under our statute, a place
It will he observed that the offense has a well-understood meaning, and it is difficult to perceive how a statutory offense of perjury can he brought within the definition of tippling, so as to authorize the grand jury to exercise its inquisitorial power with respect to it. The offense denounced by the statute is made a highly penal felony, and it would be a great stretch of judicial construction to hold that this offense may he investigated by the grand jury under its inquisitorial power, either as to gaming or tippling. It is said, however, in behalf of the State, that section 6781, Shannon’s Code (section 4858, Code of 1858), providing that any person violating this oath is guilty of perjury, was taken fronp section 4, c. 90, p. 155, Acts 1845-46, entitled “An act to tax and regulate tippling and tippling houses,” wherein inquisitorial power in this class of perjury cases was expressly granted to the grand jury. The form of oath is set out in section 3 of that act. This oath was modified by chapter 29, p. 48, Acts 1865, entitled “An act to modify the oath prescribed for liquor dealers.” The first section of that act is: “That the oath prescribed in article 6, section 691 of the Code (1858) be and is hereby amended as to read as follows, to wit.” The oath is prescribed in,Shannon’s Code, section 993, subsec. 3, It is
Conceding this to be the law with reference to the construction of the Code of 1858, the query arises, is this a doubtful case? We axe asked to hold that a statutory offense, in derogation of the common law, erected by the act of 1845-46, may be investigated under the inquisitorial power of the grand jury, under the grant of a power which was entirely omitted from the Code of 1858. The Code of 1858 simply confers inquisitorial power in cases of gaming and tippling, and wholly omits
For the reasons stated and without deciding other questions, the judgment of the criminal court in quashing the presentment is affirmed.