Thomas v. State
109 Tenn. 684
Tenn.
1902
Check Treatment
Mr. Justice Shields

delivered the opinion of the Court.

Jоhn W. Thomas, plaintiff in error, was convicted of voluntary manslaughter upon trial in circuit court of Maury county, and his punishment fixed at six years’ confinement in the penitentiary, and from the judgment upon this verdict he has proseсuted an appeal in the nature of a writ of error to this court.

Upon the hearing of the motion to sеt the verdict aside and grant him a new trial the plaintiff in error *686introduced before the court evidence tеnding to show that four of the jurors trying the case had previously formed and expressed opinions unfavorablе to him upon' the question of his guilt or innocence of the charge preferred against him, and were not such fair and impartial jurors as he was entitled to be tried by under the law.

This is a serious assault upon the integrity of the verdict of a jury and the judgment of the ‍‌​‌‌‌‌​​‌​‌‌‌​​‌‌‌‌​​‌‌‌​​‌‌​‌‌​​‌​‌‌‌‌‌​‌‌​​‌‌‌‍court thereon, and whenever made with merit is entitled to the most careful сonsideration.

The constitution guaranties to every one accused of crime the right of trial by an impartial jury, and it is the duty of the courts to see that this right is not denied.

The constitution guarantees to every one aсcused of the courts which shall have jurisdiction to conduct trials of all charged with criminal offences, dirеct the procedure and order of trial, and protect them in their rights.

Circuit courts are specially рrovided for by the constitution, and are courts of a high order, conducted upon well-regulated principles and rules of practice certain in their enforcement, and have from the organization of this State been vested with jurisdiction of all criminal offences. The judges of these courts are of necessity аnd with great propriety given much discretion in the conduct of trials therein, and its exer*687cise will not be interferеd with except in cases where ‍‌​‌‌‌‌​​‌​‌‌‌​​‌‌‌‌​​‌‌‌​​‌‌​‌‌​​‌​‌‌‌‌‌​‌‌​​‌‌‌‍it is clearly made to appear it has been abused.

Jurors are еlected, impaneled and sworn, and the trial conducted under their immediate direction; and upon all mоtions for new trials they have the witnesses in relation to the new matter relied upon before them — the better practice being to examine them in open court — and can observe their manner of testifying, see the truth, and determine the matter more correctly than this court can from the manner in which the case is рresented to it in a bill of exceptions.

Therefore every presumption is made in favor of the regulаrity of the proceedings of trials in those courts, including the qualifications of jurors elected by the partiеs and impaneled by the judges in such matters.

This makes it necessary and highly proper that the findings of the trial judges upon all questions of fact that arise upon motions for new trials should be given the same force and effect as in cases tried by them on the merits or the findings of juries, and is always done.

These principles are Avell settlеd by a long line of decisions ‍‌​‌‌‌‌​​‌​‌‌‌​​‌‌‌‌​​‌‌‌​​‌‌​‌‌​​‌​‌‌‌‌‌​‌‌​​‌‌‌‍of this court. We will only cite some of them: Mann v. State, 3 Head, 373; Collins v. State, 15 Lea, 68; King v. State, 91 Tenn., 617 (20 S. W., 169); Ellis v. State, 92 Tenn., 100 (20 S. W., 500).

The question here made upon four оf the jurors trying the plaintiff in error was fully investigated by the trial judge, the jurors examined, the evidence *688beard for and against tbe charges made against them, and upon tbe whole record thus made tbe circuit judge found, bis speсial finding to that effect appearing in tbe record, that tbe charge that tbe jurors were not impartiаl, and were disqualified, on account of previous opinions formed and expressed, was not sustained, but, on tbe contrary, it was found that said jurors were qualified and competent, and such as tbe laAv guarantees to tbe plaintiff in error; and there is material evidence to sustain this finding.

The law, as we have said, is well settled that uрon all questions of fact tried by a trial judge upon a motion for a new trial, bis findings are entitled to tbe weight of a verdict of a jury, and will not be disturbed when there is material evidence in the record to support them, as in this сase. Ryan v. State, 97 Tenn., 211 (36 S. W., 930).

Further, it does not appear by affidavits of tbe plaintiff in error, or of bis counsel, or otherwise, thаt tbe alleged disqualification of the jurors attacked was unknown to them when ‍‌​‌‌‌‌​​‌​‌‌‌​​‌‌‌‌​​‌‌‌​​‌‌​‌‌​​‌​‌‌‌‌‌​‌‌​​‌‌‌‍they were sworn, or at other timеs before the verdict was rendered, or that he called the attention of the court to their disqualificаtion as soon as he received the information.

This is necessary in all cases where new trials are аsked upon account of the misconduct or disqualification of jurors. Parties can not knowingly permit incompetent jurors to try their cases, and then take advantage of the incompetency when the verdiсt is ad*689verse to them. They can not experiment with the courts in this way, but must call the attention of the trial judge to thе facts in the proper manner at the earliest opportunity, or they will be held to have waived the disqualification.

Attacks upon jurors after adverse verdicts are said by Judge Caruthers in Mann v. State, supra, to be the last resort of the worst of criminals, and will always be ‍‌​‌‌‌‌​​‌​‌‌‌​​‌‌‌‌​​‌‌‌​​‌‌​‌‌​​‌​‌‌‌‌‌​‌‌​​‌‌‌‍closely scrutinized, and required to be clearly made out to be еffective.

The presumption is in favor' of the qualification of the jurors and of the regularity of trials, and this prеsumption must be overcome by clear and competent evidence before a motion for а new trial will be allowed for these reasons.

This assignment of error must be overruled.

Other assignments of error were disposed of in an oral opinion.

Judgment affirmed.