
    State of Tennessee v. William P. Moore.
    (Nashville,
    December Term, 1959.)
    Opinion filed February 5, 1960.
    Thomas E. Fox, Assistant Attorney General, for plaintiff in error.
    ■Terry Colley, MacFaeland & Colley, Columbia, for defendant in error.
   Mr. Justice Tomlinson

delivered the opinion of the Court.

In this criminal case the indictment by its four separate counts charged Moore with illegally (1) receiving, (2) possessing, (3) possessing for present or future sale, whiskey, and (4) personally transporting more than one gallon of whiskey in Maury County.

An order in the technical record recites that both State and defendant waived a jury trial, and that at the conclusion of the State’s evidence the defendant moved the Court “to quash and dismiss the indictment because of an illegal search”. The Court sustained that motion and adjudged “that said indictment is hereby quashed and dismissed”. It is from this action of the Trial Court that the County Attorney excepted and prayed an appeal to this Court. The appeal was allowed.

The record in no way indicates the grounds upon which the exception was based and appeal prayed. A fair inference is that the reason for the County Attorney’s action is that lie conceived it to be reversible error for tbe Trial Oonrt “to quash” tbe indictment. It is properly conceded in this Court by all parties to tbe litigation that tbe indictment is entirely valid. Hence, a motion to “qnasb”, within tbe actual meaning of tbe word, “quasb”, was not well taken. So, if tbe motion be literally construed tbe order sustaining it was error from wbicb an appeal would lie.

Considering tbe Court’s order as a whole, tbe Court thinks that tbe word “quasb” as used by tbe attorney for tbe defendant in bis motion was a mere “slip of tbe tongue”. Tbe motion, as recited in tbe judgment, is that tbe defendant “moved tbe Court to quasb and dismiss tbe indictment because of an illegal search”. (Emphasis supplied.) In short, properly construed, the motion was in fact that a verdict for tbe defendant be directed because tbe evidence upon wbicb tbe prosecution is based was tbe result of an illegal search.

Tbe Court’s order in sustaining tbe motion, notwithstanding bis use of tbe expression “quasb” seems to so construe tbe defendant’s motion. That order recites that tbe motion is sustained because it “appears (ing) to tbe Court that said search was made without a search warrant and was in fact an illegal search”. Tbe Court, following tbe “slip of tbe tongue” expression of tbe attorney for tbe defendant, inadvertently, perhaps, fell into tbe same error in tbe use of that word when be actually adjudged tbe defendant not guilty because of tbe evidence being illegally obtained.

In this Court tbe insistence of tbe State’s Assistant Attorney G-eneral is that tbe order acquitting defendant is without effect, in that tbe Court was without authority to try the case without a jury. This insistence is based on the fact that the fourth count, charging the transportation of more than one gallon of whiskey, is a felony. Section 39-2509, T.C.A. The State says that a defendant cannot waive a jury trial upon an indictment charging him with a felony.

An examination of the authorities discloses it to be a fact that there is a considerable difference of opinion between textwriters and courts as to whether a defendant can legally waive a jury trial in a felony case. See 31 American Jurisprudence, pages 48, et seq., and 50 C.J.S. Juries sec. 86 pages 792, et seq., and the decisions cited under these texts.

A decision of that question in this case would be dictum in that the case below was disposed of solely on a question of law, to-wit, whether or not the search which produced the evidence of defendant’s guilt was a legal search. “There is no right to jury trial where there is no issue of fact but only a question of law in a case”. 31 American Jurisprudence, under title “Jury”, Section 15, page 22, and authorities thereunder cited.

The error, if any, therefore, in proceeding to trial without a jury was harmless, in that it was the court’s duty to determine whether the search in question was legal and to instruct the jury to that effect. And it would have been the jury’s duty to follow that instruction with the same result, acquittal, as that reached by the Trial Judge.

In affirming this case, for the reasons stated, it is perhaps not amiss to observe that if the Trial Judge had determined that the search was legal; hence, that the defendant was guilty, it would still have been necessary for a jury to have been impaneled before finally disposing of the case, unless it was further found by the Trial Judge that the amount transported, etc., did not exceed one quart. With the exception stated, the statute with reference to the offenses charged, in addition to the permissible or required jail or penitentiary sentence, requires in every instance a fine of not less than $100. Section 39-2512, T.C.A.

Section 14 of Article 6 of the State Constitution provides that “no fine shall be laid on any citizen of this State, that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers”. In view of that constitutional prohibition, a judge cannot impose a fine of more than $50 “even by consent of the accused”. Upchurch v. State, 153 Tenn. 198, 281 S.W. 462, 464; Thompson v. State, 190 Tenn. 492, 230 S.W.2d 977. Hence, the necessity in this case of impaneling a jury to fix the fine within the amounts required by the statute, in the event a conviction had resulted.  