Knoxville weekly chronicle. [volume] (Knoxville, Tenn.) 1870-1875, 1871-10-25
SUPREME COURT OPINION.


William Henderson, prf in error, VS. The State.
The plaintiff in error was indicted and con-
victed under the act of the Both of January,
1900. 81. See Shankland's Stat, 10l. The
indictment charges that William Henderson,
on the 18th day Of May, 1871, in Marion county
aforesaid, did unlHvfully, wiltul,y, maiielously
and knowingly prowl travel and walk through
said county disguised and masked, to the alarm
and disturbance of the peace of the State" &c.
The language of the statute is, That if any
person, or persons, masked, or in disguise shall
prowl or travel, or ride, or walk through the
country, or towns of this State, to the disturb
ance of the peace, or to the alarming of any
portion of the citizens of any portion of this
State on conviction thereof shall be fined not
less than one hundred dollars, and imprisoned
in the county Jail of the county wherein con-
victed at the discretion of the jury trying the
case
1t is argued for plaintiff in error that the in
dictment uses the copulative conjunction and,
while the statute employs the distinctive con-
junction "or; and that the indictment is, there
fore, bad for duplicity.
This question was virtually determined by
this court at its last term, in the case OF the
State vs. Arnold Alley, where it was held that
an indictment charging that the defendant did
slit, cut off, and bite off the ear of another is
good under the statute which declares that no
person shall unlawfully and maliciously slit,
cut off, or bite off the ear, lip, or nose of an
other. The averments are Invisible, and the
plaintiff in error could have been convicted of
prowlng, travelling, or walking, contrary to the
statute l Chit, Or. Lar, Raey's cd. 25l :
Share,cood Rose. 9Th cd 10; l Vat 1rch c.
Z. 314
From the evidence in the record, the jury
were well warranted in finding the plaintiff IN
error guilty and assessing a fine of $4,000 and
twenty days imprisonment. The case made out
in evidence shows that the plaintiff in error and
another person. both dressed in women's cloth
ing entered house in the night time, where
the prosecutor in state of partial intoXication
lrirH ON, hp1 hot how l, ar1
after a struggle on his part, succeeded in get
ting him out of the house, when they were
Joined by two others, and that the four carried
him away from the house and whipped him
with sticks and switches"
The identity of Henderson is clearly proved
| by Wilkerson, the prosecutor, and Elizabeth
| Morris, with whose husband Wilkerson had
come to the house of Morris, who was lying on
! the floor drunk. Wilkerson states that there
was bright fire light in the ROOM and he and
Mrs. Morris both testify that Wilkerson called
Henderson by name, and that they both knew
him. These witnesses are not assailed or con-
| tradicted, and the evidence tending to prove an
alibi is wholly unsatisfactory as to the time and
other circumstances.
The affidavit of Henderson, offered on the APP
| pication for n new trial, to the effect that he
went into the trial, expecting the evidence of
| General Caesar, material witness in his behalf;
| that he thought he was subpoenaed, as he had q
subpoena issued for him and placed it in the
| hands of the officers to summons said witness, "
| does not present a case of surprise. 1t was the
business of plaintiff in error to ascertain before
| hand, with reasonable certainty, whether the
| witness had been summoned and was present at
| the time of going into trial. 1t does not appear
| that he had been called by the sheriff, or used
any effort even to ascertain whether he had
| been summoned. The affidavit of General Gaze
| sar contains statement merely cumulative on
| the question as TO an abb, and does not really
| conflict with the evidence for the prosecution.
NELSON. JUDGE.