Walker v. State

118 Tenn. 375

Opinion

Mr. Chief Justice Beard

delivered tbe opinion of tbe Court.

Plaintiff in error was indicted for tbe murder of one Collier, and on a trial in tbe circuit court of Dickson county was found guilty of voluntary manslaughter, and bis punishment fixed at five years’ confinement in tbe. penitentiary. On this appeal from tbe judgment pro- nonneed on this verdict, we deem it unnecessary to state the evidence on which the conviction rests, or to notice it, further than to say we are satisfied, after a careful examination of the record, that the finding of the jury is sustained by the weight of the testimony submitted to them.

It was urged in the court below on the motion for a new trial, and the insistence is renewed here, that the verdict was vitiated by reason of the fact that one of the jurors, while a citizen of Dickson county and otherwise qualified, lived outside of the territorial jurisdiction of the trial court and within that of a special court created by chapter 287, p. 533, of the Session Acts of 1899, for a limited portion of that county.

This objection was one propter defectum, and came too late. Such an objection must be made in limine, It is immaterial that the particular disqualification is unknown to the party complaining and his counsel when the juror is accepted. The acceptance, when once made, is conclusive. This is an ancient rule of the common law, adopted by this court at an early day, and uniformly applied. Among the cases recognizing it are McClure v. State, 1 Yerg., 206; Gillespie v. State, 8 Yerg., 507, 29 Am. Dec., 137; Ward v. State, 1 Humph., 255; Hamilton v. State, 101 Tenn., 417, 47 S. W., 695; Goad v. State, 106 Tenn., 175, 61 S. W., 79.

The judgment of the circuit court is therefore affirmed.