holding that the defendant failed to exercise available peremptory challenges on jurors he had challenged for cause thereby losing the ability to challenge the jurors on appeal despite his use of all his peremptory challenges
How later courts described this case
- holding that the defendant failed to exercise available peremptory challenges on jurors he had challenged for cause thereby losing the ability to challenge the jurors on appeal despite his use of all his peremptory challenges
- “A further complaint under these two assignments is that the Court overruled his challenge for cause of the five jurors whom defendant, as above stated, accepted. We see no merit in that complaint because, as appears from the above statement, defendant having at that time eight peremptory challenges which he could have exercised but did not do so.”
Written by the judges who cited it.
The opinion
Mr. Justice Burnett,
(dissenting).
I find myself unable to agree with the majority opinion for the reasons hereinafter stated.
Hale was indicted and convicted for an assault and battery upon a child under 12 years of age with intent to carnally know her and was given the death sentence.
The 13th assignment of error on behalf of Hale complains of the trial judge’s overruling the motion for new trial and assigns it is error because it is said that there was no evidence upon which the jury could find the defendant guilty of the offense charged in the indictment. The basis for this assignment is that the commission of the act of unnatural sexual intercourse by the plaintiff in error shows that he was not guilty of the act charged in the indictment because the act that he committed was only a commission of a crime against nature. I am convinced that this assignment should be sustained.
According to the majority opinion the record shows without dispute that the plaintiff in error penetrated the anus and not the vagina. As I read this opinion, and as I remember the argument, this act was committed some three times.
*485 Clearly -under the indictment in the case which is based upon Code Section 10785 “the guilty intent is the gravamen of the charge and not the consummation of the intent. ” The majority opinion 281 S. W. (2d) on page 53. I think there is no question in the world hut this is a correct statement of the law. The majority opinion cites in support thereof Carter v. State, 181 Tenn. 250 , 181 S. W. (2d) 137 ; Brown v. State, 186 Tenn. 378 , 210 S. W. (2d) 670 ; Davis v. State, 186 Tenn. 195, 198 , 209 S. W. (2d) 7 , and other authorities to support, this statement.
It seems to me that the most plaintiff in error can he guilty of is a violation of Code Section 11184 which is the Section of the Code that makes it a crime for one to have sexual relations against nature with either mankind or beast and provides the maximum penitentiary sentence of 15' years. We have recently held that this Code Section covers acts of “penetration per os” and the clear inference from this is that this section likewise covers penetration of the anus. See Fisher v. State, 197 Tenn. 594 , 277 S. W. (2d) 340 .
The majority opinion quotes to some extent from the testimony in the record and reaches the inescapable conclusion that the evidence therein clearly shows the intent to have carnal knowledge. To my mind this conviction certainly should be sustained under the proof in this record if it were not for the final act which the plaintiff in error committed. The acts of intention to carnally know, I assume, must of necessity be the same acts that would necessarily be when a person committed an unnatural sex act as was done in the instant case by penetration of the anus. One to have carnal knowledge and to be guilty of the intent to do so cannot be convicted of this intent when the final act or the consummation of the intent shows that it was not to have carnal knowledge *486 but to have an unlawful and unnatural sex act. Of course I know that either is horrible and very revolting but the Legislature who passed these acts has seen fit to have a separate statute for these unnatural sex acts and when one has committed a violation of this act he should be punished therefor but he should not be punished for an offense which carries a much greater penalty. The intent to have carnal knowledge is negatived by him doing the act that he did. It seems to me that when a crime is accomplished that this within itself shows the intent to do whatever act was started out to be done. The doing of the act that was done shows what the intent was. When an act has been accomplished whatever the intent was the mere accomplishment of the act shows what that intent was. The accomplishment of one crime negatives the intent to do a different crime.
I think it is necessary under the question that I have raised here for us to look to the definition of intent, especially since intent is the gravamen of the crime for which the man was here convicted. In 46 C. J. S. at page 1103 intent is thus defined:
“A design; a determination to do a certain thing; an aim; the purpose of the mind, including such knowledge as is essential to such intent; an intending or purposing; an intention; a purpose; that which is intended; the design, resolve, or determination with which a person acts.
“Intention is an emotion or operation of the mind; a mental attitude made known by acts; the state of mind with which an act is done or contemplated; and has been defined as the tendency imputed by law to an act; the voluntary purposing of an act; and volition. It implies premeditation and purpose.”
*487 (Intention is) “a settled direction of tlie mind toward tlie accomplishment of a particular act; [citing cases from many jurisdictions] a determination to act in a certain way or to do a certain thing.” State ex rel. Verbon v. County of St. Louis, 216 Minn. 140 , 12 N. W. (2d) 193, 196 , 46 C. J. S. p. 1105.
This Court in the case of Smith v. State, 2 Lea, Tenn., 614, 619 said of intent.
“It is the exercise of intelligent will, the mind being fully aware of the nature and consequences of the act which is about to he done, and with such knowledge and with full liberty of action willing and electing to do it.
“Intent is a mental condition and is determined, not so much by what one says, as it is by what one does.” Detroit Trust Co. v. Hartwick, 278 Mich. 139 , 270 N. W. 249, 253 .
The state of mind (which precedes or accompanies an act is the intent. Williams v. State, 113 Neb. 606 , 204 N. W. 64, 66 ; Crosby v. Wells, 73 N. J. L. 790, 67 A. 295, 302 .
Intent “can usually he shown only by acts, declarations, and circumstances known to the party charged with the intent.” Hooker, Corser & Mitchell Co. v. Hooker, 103 Misc. 66 , 170 N. Y. S. 570, 573.
In other words in all legal definitions of the word intent or intention when used in the sense that it is here used clearly leads me to the conclusion that since the man accomplished the act that he did accomplish that any inference or facts which might lead to another accomplishment are clearly negative and should be sufficient to show us that he did not intend to carnally know this child.
In Hooks v. State, 154 Tenn. 43 , 289 S. W. 529 , the late Chief Justice Green reversed a conviction in which *488 Hooks was indicted for attempting to break in a bouse and to bave carnal knowledge of a female against ber will. Tbe basis for tbis reversal was that tbe acts there of Hooks clearly negative tbe intent to bave carnal knowledge of tbis woman against ber will. It was Judge G-reen’s reasoning that tbe record clearly showed that be was going to try to persuade tbis young lady to commit tbe act and not do it against ber will. In other words that case clearly showed that by tbe acts of Hooks that be did notintend to use force. It seems to me that in tbe instant case .that by tbe accomplishment of tbe act that tbe plaintiff in error here did on three occasions at tbis time, that is, of penetration of tbe anus, plainly and outspokenly negatived that the acts of intent which clearly could convict' tbe plaintiff' here if it was not for tbe accomplishment of a related crime which clearly negatives tbe intent to carnally know. See Wharton’s Criminal Evidence, Yol. 2, Sec. 1038, page 1824. Frankly I bave been unable to find any authorities directly in point. But tbe question obviously, is to me, so plain that- it has never arisen. Tbe only place tbe question could arise would be in tbe weight that tbe court gives to tbe evidence and here when tbe evidence of intent is plain but that intent which could be one of two things, as shown by tbe accomplishment of a certain act, it clearly-negatives and takes away tbe intent to go to tbe jury to carnally know. It is for this reason that I think tbe case should be reversed and remanded so that tbe plaintiff in error maybe indicted for tbe crime which he has commited.