Donston v. State , 25 Tenn. 275 ( 1845 )

Turley, J.

delivered the opinion of the court.

The prisoner was indicted and convicted of the offence of horse stealing in the circuit court of Lincoln county, and upon appeal in error, to this court, several causes are assigned for the reversal of the judgment of the court below; but one of which do we deem it necessary to discuss.

It appears from the bill of exceptions, that the prisoner was convicted upon the testimony of James Forbes, the only witness who proves the commission of the offence; that his position in relation to the transaction, was, to say the least of it, of a very doubtful character, and his credibility upon oath, by no means above suspicion. It also appears from the affidavit of two of the jurors, that they found great difficulty in finding the prisoner guilty; that William Arnold, one of the jury, stated to them in the jury room, after the retirement of the jury, and without having been examined in court, that he had heard James Forbes examined before the grand jury that found the bill of indictment, and that he then made the same statements that he made before the traverse jury, and these jurors swear that this statement of Arnold had a powerful influence on them in finding the verdict of guilty against the prisoner. It has always been held that testimony given to a jury after it has left the presence of the court, vitiates a verdict, because it is not given on oath and is given without the knowledge of those to be affected by it, and who have therefore no opportunity of meeting and repelling it. Now, that Forbes swore the same things before the grand jury, in relation to this offence, that he did before the petty jury, is a substantial fact, capable of proof and disproof, and calculated to affect his credibility, either the one way or the other, and ought to have been heard in open court. It produced a powerful effect upon the minds of the jurors, and very probably led to the conviction of the criminal. This is a stronger case than that of Boobie vs. the State, (4th Yerger) which is an authority directly in point upon this question, and must control it. All the other points made are in favor of the State.

Judgment reversed and prisoner remanded for a new trial.