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permit the jury to depart and separate, and LEE V. STATE.

not to keep them under the charge of an (Supreme Court of Tennessee. Oct. 9, 1915.) officer, as is required by law, is such mate1. CRIMINAL LAW 854–TRIAL-CUSTODY rial innovation upon the rights of defendants OF JURY.

to have this fair and impartial trial that the In a capital case, it is improper and con- court will reverse the case for this alone. stitutes reversible error to permit the jury to go at large pending the trial, even though accus- This was held, notwithstanding the fact ed consent; this depriving him of his constitu- that the defendant consented that the jury tional guaranties of fair and impartial trial by might separate. The reason for this ruljury.

[Ed. Note. For other cases, see Criminal ing is stated in the opinion in that case, Law, Cent. Dig. S$ 2039-2047;' Dec. Dig, Omw which is filed for publication, and will not be 854.]

repeated in this opinion. 2. RAPE 40-EVIDENCE-ADMISSIBILITY. This case is also reversed for the same

In a prosecution for rape, evidence of other acts of intercourse between the prosecutrix and reason, and will be remanded to the lower other men is admissible, not only on the ques-court for a new trial. tion of the prosecutrix's credibility, but on the [2, 3] There is an assignment of error with probability of consent. [Ed. Note.-For other cases, see Rape, Cent which we deem it is proper to notice. The

respect to the charge of the trial judge, Dig. $$ 55-59; Dec. Dig. Om 40.] 3. RAPE Om44-EVIDENCE-ADMISSIBILITY.

court charged the jury as follows: In a prosecution for rape, evidence of prior “Further, gentlemen, should you believe that intercourse between prosecutrix and accused is Mary Finger had had sexual intercourse with admissible to raise an implication of consent. the defendant or with other men or boys before

[Ed. Note.-For other cases, see Rape, Cent. the time in question, the 22d of last July, you Dig. 8 63; Dec, Dig. Om 44.]

may look to said acts of lewdness, if shown in

the proof, only for the purpose of shedding light Appeal from Circuit Court, Blount Coun- upon her credibility as a witness in this case." ty; S. C. Brown, Judge.

This instruction was not explained or qualSpencer Lee was convicted of rape, and ified by any other portion of the charge. he appeals. Reversed and remanded.

There was considerable evidence tending to McTeer & Kramer, of Maryville, for ap- show illicit acts with other men and boys, pellant. Assistant Attorney General, for the and also with the defendant previous to the State.

act in question. The weight of this evidence

should not have been limited to the effect upFANCHER, J. Spencer Lee was convicted on the credibility and standing of the state's of rape committed on the person of Mary witness Mary Finger. Such proof is compeFinger, a married woman. There are several tent as bearing directly upon the principal assignments of error. We notice one inci- question at issue, that is, whether the interdent on the trial which is not assigned as course was by force or with the consent of error, but, inasmuch as it is material to the the injured female, and this for the reason case, we will look to it without an assign- that no impartial mind can resist the conment.

clusion that a female who had been in the [1] An order in the record showing the pro- recent habit of illicit intercourse with others cess of the trial in the case recites that aft- will not be so likely to resist as one who is er the jury had been selected, impaneled and spotless and pure. sworn, and having heard a part of the evi- The rule in many states is in accordance dence, they were respited from further hear- with the holding of the trial judge, and such ing until the meeting of the court the next is the rule also laid down by Greenleaf, vol. morning, and, by consent of the Attorney 3, $ 214, and it is said that it was probably General, the defendant, and his counsel in derived from the English cases of Rex v. open court, they were allowed to go without Hodgson, and Rex v. Aspinwald. However, being put in charge of an officer. The record as pointed out in Benstine v. State, 2 Lea, shows that the next morning the remaining 169, 31 Am. Rep. 593, and Titus v. State, evidence was introduced, and the case ar- 7 Baxt. 132, that rule was not adhered to gued by counsel, whereupon the jury received in Tennessee. their charge, and on the same day returned There is a very interesting review of aua verdict of guilty.

thorities on this subject in the note in 14 L. In the case of Bud Long V. State, 132 | R. A. (N. S.) pp. 714 to 723. It appears that Tenn. — 179 S. W. 315, decided at the pres- there is great diversity of opinion, but that ent term, we held that it was improper and the greater number follow the ruling in Rex constituted reversible error to permit the v. Hodgson, supra. So, if the weight of aujury to go at large pending the trial of the thority is to be determined by the number case, on the ground that the defendant, un of reported opinions, the greater weight must der his constitutional guaranties of a fair be said to be on that side. and impartial trial by a jury, is entitled It appears, however, that a respectable to have the jury removed from all possible number of courts are with our own Tencontamination and influence, and that to nessee court in their adherence to the contra

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ry reasoning of Mr. Justice Cowan in People as claimed, that she induced a relationship v. Abbot, 19 Wend. (N. Y.) 192. This learn that began when he was a boy and continued ed judge contended that, inasmuch as the on after she was married and up to the offense was always done in secret and com- 1 time of the alleged offense, would point most monly proved by the testimony of the pros- strongly in favor of her consent on this ocecutrix alone, every fact ought to be received casion. The rejection of the testimony for which tended to prove the absence on her that purpose is very prejudicial. part of the utmost reluctance and resistance Acts of sexual intercourse may always be to the connection. And, although the body of proven between the prosecutrix and the dea harlot may, in law, no more be ravished fendant upon a trial for common-law rape than the person of a chaste woman, never- prior to the alleged offense, for the purpose theless it is true that the former is more of raising an implication of consent. This likely than the latter voluntarily to have has been held quite generally. Reg. v. Cockyielded.

roft, 11 Cox C. C., 410; Reg. v. Riley, 16 Later the New York court, in People v. Cox C. C., 191; Rex v. Martin, 6 Car & P., Jackson, 3 Park, Crim. Rep. 391, disapprov- 562; McQuirk v. State, 84 Ala. 435, 4 South. ed of the holding in People v. Abbot, on the 775, 5 Am. St. Rep. 381; Rice v. State, 35 ground that the weight of authority was Fla. 236, 17 South, 286, 48 Am. St. Rep. 245; against it, and that the remarks of Justice Shirwin v. People, 69 Ill. 55; Bedgood v. Cowan were obiter dicta. These views of State, 115 Ind. 275, 17 N. E. 621; State v. that learned judge have been emphatically Cook, 65 Iowa, 560, 22 N. W. 675; State v. approved in other cases. Our own court, in Jefferson, 28 N. C. 305; State v. Reed, 39 Titus v. State, adopted his argument, and Vt. 417, 94 Am. Dec. 337. said: “We deem this reasoning unanswer

It is here where the authorities divide. able on the question.” The Vermont court, The sharp conflict in the decisions is over in State v. Johnson, 28 Vt. 512, expressly the competency of acts of intercourse beapproved the holding, as is done in Brennan tween the prosecutrix and other men than v. People, 7 Hun (N. Y.) 171; People v. Ben- the accused. There is a greater reason for son, 6 Cal. 221, 65 Am. Dec. 506; Watry v. its introduction where the proof is of acts Ferber, 18 Wis. 501, 86 Am. Dec. 789; Ford between the direct parties, but all acts, conv. Jones, 62 Barb. (N. Y.) 484.

versations, and admissions of the woman In State v. Patterson, 88 Mo. 88, 57 Am. tending to show that she is a prostitute, or Rep. 374, Sherwood, J., referred to Judge of easy virtue, should be admitted for the Cowan's opinion as having been criticized, twofold purpose of showing her character as but frequently followed, and that the reason- affecting her testimony, and also to raise an

implication of her consent. ing of that case he had not seen answered,

The effect of the instruction of the trial nor did he believe it could be. After all, where opinions are in conflict, ject, for the purpose of shedding light on

judge to the jury on this subject was to reit is not so much the duty of a court to fol- the question of consent, not only acts with low the greater number of decisions as it is other men and boys, but the intimate relato adopt the sounder reasoning. The oppo- tions testified to with the defendant. site view has been sustained by some be

The defendant in this case does not deny cause it had the larger number of adherents. the act of carnal knowledge, but says that it The best, and in fact the only valid, reason

was with her consent. This being the prinfor this adherence is expressed by the Oregon cipal issue in the case, any previous acts court in the case of State v. Ogden, 39 Or. upon her part testified to, if true, should be 195, 65 Pac. 149, as follows:

considered by the jury in coming to a con* While a prosecutrix, as a witness clusion as to whether she consented or not. in an action of rape alleged to have been committed upon her, is expected to defend her gen

The court should have charged the jury eral reputation for chastity, she cannot antici- that the evidence in question is proper and pate the charges of specific acts of illicit inter- should be looked to, not only for the purpose course which may be made by men who perhaps of shedding light upon the credibility or have been suborned to testify. *

standing of Mary Finger as a witness in the We admit that this affords reason for that case, but also as an aid for the jury to deview. But does it outweigh the other reason termine whether the intercourse in favor of such proof, that a defendant force or by her consent. charged with this capital crime should have All the other assignments of error with the benefit of all facts which may show the respect to the admission of testimony and probability of consent on the part of the special requests to charge the jury are each woman? If her character is good, it will and all overruled. We find no error on the indeed be hard to successfully impeach it, part of the trial judge other than as set and as a rule the effort will not be made. out in this opinion. We omit any other comFormer acts of this nature with other men ment upon the testimony in the case, for the might not indicate so much a probability of reason that it is to be again tried upon the Tenn.)




[1, 2] It is said that the last-mentioned IMBODEN et al. v. CITY OF BRISTOL provision of the act violates section 29, art. et al.

2, of the Constitution, as follows: (Supreme Court of Tennessee. Oct. 2, 1915.)

“But the credit of no county, city or town 1. MUNICIPAL CORPORATIONS Om918 - ISSUE shall be given or loaned to or in aid of any OF BONDS.


association or corporation, exWhere the credit of a city is to be used for cept vpon an election to be first held by the a proper city purpose, bonds may be issued, qualified voters of such county, city or town, if due authority is given by the Legislature, and the assent of three-fourths of the votes without a submission of the matter to a voté cast at said election." of the people.

The argument against the validity of the [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. & 1919-1923; Dec. statute is founded on one of the reasons givDig. Enw918.]

en in our cases justifying special assess2. MUNICIPAL CORPORATIONS Om871_STREET

ments. It is said in these cases that the IMPROVEMENTS-BONDS.

justification for special assessments for loConst. art. 2, $ 29, declares that the credit cal improvements is that property contiguof no county, city, or town shall be given in aid of any person, association, or corporation ex- ous to such improvements receives a pecucept upon an election first held by the qualified liar benefit not shared by property elsewhere voters. Priv. Acts 1913 (1st Ex. Sess.) c. 18, located. So the cost of the improvement may authorized the city of Bristol to improve streets be assessed in proportion to benefits conferand issue bonds to pay for the improvement; the bonds to be the absolute and general obliga- red, and is not required to be imposed on tions of the municipality. The act further pro- the whole body of property or taxpayers vided for the payment of two-thirds of the cost equally. Arnold v. Knoxville, 115 Tenn. 195, by abutting property owners, and they were 90 S. W. 469, 3 L. R. A. (N. S.) 837, 5 Ann. allowed five years to complete payments. Held that, though the abutting property owners re- Cas. 881; State ex rel. v. Powers, 124 Tenn. ceived a peculiar benefit and were specially as- 556, 137 S. W. 1110. sessed for it, yet, the improvement of the streets

Taking this statement of the law as a being for the benefit of the city and its inhabitants, the issuance of bonds for payment of the basis, it is argued that such improvements entire work was not a pledge of the city's credit are for the benefit of adjacent property ownfor the benefit of such abutting owners.

ers, that bonds issued to pay for such im[Ed. Note.- For other cases, see Municipal Corporations, Cent. Dig. $ 1817; Dec. Dig. om provements are in aid of such property own

ers, and therefore the issuance of such bonds

is a giving or lending the city's credit in Appeal from Chancery Court, Sullivan aid of such parties in violation of the section County; Hal H. Haynes, Chancellor.

of the Constitution quoted. Bill by Robert Imboden and others against It should be observed that chapter 18 of the City of Bristol and others. From a de- the Acts of the First Extra Session of 1913 cree sustaining a demurrer, complainants ap- provides that the bonds here in controversy peal. Affirmed.

shall be “the absolute and general obligations Harr & Burrow, of Bristol, for appellants of the municipality." C. J. St. John, of Bristol, for appellees.

It is conceded that improvement of its

streets within its borders is a proper corpoGREEN, J. This bill was filed by resi- ration purpose, and with legislative authoridents and taxpayers of the city of Bristol ty any municipality may issue its bonds for to enjoin the issuance of certain bonds about such a purpose. Where the credit of a city to be negotiated by the city in connection or a county is to be used for a proper counwith street improvement work. The bonds ty or corporation purpose, if due authority were authorized by chapter 18, Acts of the is given by the Legislature, bonds may be isFirst Extra Session of the Legislature of sued by the city or county for such purposes 1913—a front foot assessment act. The bill without a submission of the matter to a challenges the constitutionality of this act. vote of the people. Shelby County v. ExpoA demurrer was interposed by the city and sition Co., 96 Tenn. 653, 36 S. W. 694, 33 L. sustained by the chancellor, and from this R. A. 717; State ex rel. v. Powers, 124 Tenn. decree complainants have appealed.

553, 137 S. W. 1110, and cases cited. The act in question is not materially dif- Although the improvement of a particular ferent from other statutes of this state pro- street may confer a peculiar benefit upon viding for special assessments for local im- the property owners along that street-so provements, and, among other things, it pro- peculiar, indeed, as to justify a special asvides that two-thirds of the cost of the sessment upon them—the improvement is work shall be borne by the abutting owners none the less a public improvement. In this and one-third by the city. It authorizes the case the expenditure is to be made on the city to issue bonds to pay for the part of the city's own easement, its street, of which it work charged to the abutting owners, and had, and retains, control, and of which all provides that the city shall be repaid by as- its citizens have the benefit. sessments levied on the adjacent property If a municipality could be restrained in to be discharged by the property owners, at the execution of a proper corporation purtheir option, in five annual payments. pose because some of its citizens would de

rive special advantage therefrom, many of 2. BAILMENT Omw 12-ACCOMMODATION BAILits enterprises would fail. Parks, schools,

MENT-LIABILITY OF BAILEE. bridges, and numerous other public works defendant salesman to carry to another town

Plaintiffs delivered money and checks to benefit chiefly the immediate section in and deposit to their credit. Being warned by which they are located. It cannot be said the bookkeeper of the house for which the salesthat a municipal improvement falls short of man traveled as to danger of carrying the

money to his house, he made it his custom to a corporate purpose because all its benefits deposit the funds in an iron safe of a drug are not, in fact, enjoyed by all the citizens company, because he arrived at the place of in the same degree.

deposit after banking hours. A deposit against The improvement of a city's streets is an drawn was placed in the drug company's iron

which the merchants notified him they had improvement of a public nature, an improve safe, and,

when the salesman who had been othment of the city's own property, the enjoy- erwise engaged called for it two days later, it ment of which is not confined to adjacent with an article bailed will not work a conver

had disappeared. Held that, as every parting property owners. That adjacent owners de- sion, the salesman was not guilty of convertrive special advantage therefrom sufficient ing the fund, though he did not deposit it the to justify the levy of a special assessment earliest possible moment. upon them does not alter the case.

TEd. Note. For other cases, see Bailment, The

Cent. Dig. 88 37-41; Dec. Dig. Om12.] work is still of a public character, and expenditures for the same are expenditures

Certiorari to Court of Civil Appeals. for a corporation purpose.

Action by W. S. Ridenour and C. C. RideTo deny the public character or the corpo- nour, copartners, against William Woodward. rate purpose of work accomplished by local On appeal to the Court of Civil Appeals, assessments would be to deny the power of judgment was rendered for plaintiffs, and a municipality to execute such an undertak defendant brings certiorari. Decree of Court ing at all. Unless such work were for the of Civil Appeals reversed, and cause dispublic benefit or for a corporation purpose,

missed. citizens could not be required to submit to Owens & Taylor, of La Follette, for plainassessments on account thereof. The prop- tiffs. C. A. Templeton and John Jennings. erty of adjacent owners could not be so both of Jellico, for defendant. burdened against their will, however much

WILLIAMS, J. W. S. Ridenour and C. C. it might be improved or enhanced in value. So we must conclude that the prosecution Ridenour, a firm doing a mercantile busi

ness, brought this suit to recover $400 and of this improvement work on its streets by the city of Bristol is for the benefit of the interest, alleged to be due them because of the city of Bristol is for the benefit of the the failure of Woodward, as bailee, to deposit public, and that the use of the credit of the in the First National Bank, of Jellico, checks city for such work is for a legitimate cor- and money intrusted to him for deposit to poration purpose, notwithstanding the fact

their credit. that some property owners will be specially

Woodward was a traveling salesman in benefited.

the employ of Hackney & Co., a wholesale The case of Colburn v. Railroad, 94 Tenn. 43, 28 S. W. 298, in no sense conflicts with lico, and on his trips through the trade ter

grocery establishment doing business in Jelthe views herein expressed. In that case

ritory he was accustomed to call on and the county undertook to use its credit, as make sales to the complainant firm, the store the court pointed out, for the purpose of be- of which was located at a small railway coming a stockholder and joint owner with station about 16 miles out from Jellico, the railroad company in proposed improve which store was in charge of C. C. Ridenour. ments. In this case the city of Bristol pro

Ridenour had from time to time, for a poses to use its credit for the improvement period of nine months preceding the incident of its own streets, of which it has exclusive that occasioned this litigation, sent money control.

and checks by Woodward to Jellico to be deThe chancellor correctly sustained the

posited to the firm's credit in bank. Woodcity's demurrer, and his decree will be af-ward made his trips from Jellico to the firmed, with costs.

complainants store by the railroad. The train's schedule for the return trip called for arrival at Jellico at 7:20 at night, which

was after banking hours. At the first WoodRIDENOUR et al. v. WOODWARD. ward began taking the money of complainant (Supreme Court of Tennessee. Oct. 9, 1915.) so intrusted to him to his home in the sub1. BAILMENT Om 12 – ACCOMMODATION BAIL- urbs of Jellico, about one-fourth mile beMENTS-DEGREE OF CARE.

yond the city limits and about one-half mile A bailee for the accommodation of the bail- beyond the district where the streets were or bad faith, the degree of care being measured, the bank for deposit or carry it to the esor is answerable only for his gross negligence lighted; and the next day take the same to however, with reference to the nature of the article bailed.

tablishment of Hackney & Co., his employers, [Ed. Note.-For other cases, see Bailment, and intrust it to the bookkeeper to be deCent. Dig. $$ 37-41; Dec. Dig. Omw12.]

posited in bank, Woodward was cautioned




by this bookkeeper that there was dangered out in public view, within a few steps of loss attending this method, and a change of the promiscuous crowd, before it was was made; Woodward taking the funds to passed to Estill. Shortly after Estill got some downtown store and depositing the upon the train, not far distant from the fair same in an iron safe commonly used for grounds, and soon after taking his seat disthe keeping of valuables. Several times he covered that his pocket had been picked. had used the safe of the Smith Drug Com- The ruling was that such parting of pospany for that purpose, and several times oth- session to Estill was a conversion since it er safes. He testifies, without contradiction, was unauthorized, and also that there was that he had not uniformly delivered the gross negligence shown by the circumstances. money from the safe to the bank on the day Accordingly, the Court of Civil Appeals next succeeding such lodgment, but that at held that the placing of the intrusted funds times he delayed doing so for a day or two. in

in an iron safe of another person was withOn the afternoon of July 22, 1912, which out authority and constituted a conversion was Monday, C. C. Ridenour handed to by Woodward. Woodward for deposit the $400 in question, [2] It may be truly said that the earlier which was placed that night in the safe decisions go along rigid lines and show but of Smith & Co. His business called him slight, if any, disposition of the courts to from Jellico on Tuesday morning before indulge in inferences in favor of the bailee. banking hours. He returned in due course Clearly, it is not every parting with the of the business of his employers on Tuesday possession by the bailee of the thing bailed night after banking hours. On Wednesday that will work a conversion; there may be morning he again went to the store of Smith a parting that is qualified and temporary, & Co. without making inquiry as to the mon- evincing no intention on the part of the ey, thence out of town on an early train bailee to exercise a dominion over the same for a short business trip, but returned to the inconsistent with the right of the owner, city at 10:45, after the bank was opened, but consistent with a further or continued called at the drug store, and asked for the control as to the delivery designated to be money that he had left there on Monday made by the bailee. Spooner v. Manchester, night, when on search of the safe it was dis- 133 Mass. 270, 43 Am. Rep. 514; Fouldes covered that the funds had disappeared. The v. Willoughby, 8 M. & W. 540. testimony does not disclose what became of In Jenkins V. Bacon, 111 Mass. 373, 15 it, though it is found by both of the lower Am. Rep. 33, where the conclusion was a courts that it was not purloined by Wood- hard ruling of liability on the part of the ward.

defendant bailee charged with a conversion, C. C. Ridenour informed Woodward at the it was yet conceded that: time the funds were intrusted to him that If "for * *

sufficient reason it should he had drawn or was drawing checks on become inconvenient or unsafe that he should the bank against the same. Other facts are would undoubtedly be at liberty to deposit it

retain the manual possession of the bond, he set out in the discussion which follows. in any other place or mode, in which he

The Court of Civil Appeals held that * might deposit his own property of the Woodward was liable to respond as for a like description. But, as between the original conversion of the funds so lost. We have be the lawful and responsible custodian, and

depositor and himself, he would continue to granted the writ of certiorari in order to a bound to practice that degree of care which the review of that decree.

law requires of gratuitous bailees.” [1] The rule is that a bailee for the ac The Court of Civil Appeals erred in not commodation of the bailor is only answer- taking note of and following the trend of the able for his gross negligence or bad faith, modern authorities, which is to break away the care to be taken by him to be measured, from the stern rules which many of the however, with reference to the nature of the courts of England and of this country were thing placed in his keeping. Whitemore v. at one time disposed to apply to acts of a Haroldson, 2 Lea (70 Tenn.) 312; Hotel Co. bailee claimed to be a deviation, and therev. Holohan, 112 Tenn. 214, 79 S. W. 113, 105 fore to effect a conversion. Am. St. Rep. 930, 2 Ann. Cas. 345; Marshall

Mr. Freeman in his annotations of the v. Railroad & Light Co., 118 Tenn. 254, 101

case of De Tollenere v. Fuller, 1 Mill, Const. S. W. 419, 9 L. R. A. (N. S.) 1246, 12 Ann. (S. C.) 117, at 12 Am. Dec. 616, 621, after Cas. 675.

citing with approval our case of McNeill v. The Court of Appeals was of opinion that Brooks, 9 Tenn. (1 Yerg.) 73, said: the holding in the case of Colyar v. Taylor, 1

It is certainly a hard rule to hold that Cold. (41 Tenn.) 372, controls this case. In slight acts of misuser, by a bailee, of the thing that case Taylor had received from a bank bailed, are to be regarded as evidence of a perin Nashville money for Colyar to be deliver-manent appropriation of the property to his

own use. Perhaps a more reasonable doctrine ed gratuitously at Winchester. After re- is that of a majority of the court in Harvey ceiving the money, he took it to the public v. Epps, 12 Grat. (Va.) 153, etc.” fair grounds in the vicinity of Nashville, Schouler, in his work on Bailments, rewhere he met one Estill, who was prevailed marks on this point that: upon to take charge of and make the de- "The leaven of common sense, which keeps

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