Knoxville daily chronicle. [volume] (Knoxville, Tenn.) 1870-1882, 1871-10-22
SUPREME COURT OPINION.
William Henderson, prff in error, VS. The State

William Henderson, ppf in error. VS. The State.
The plaintiff in error was indicted and con-
victed under the act of the Both of January,
1870-C. 81. See ShanklandS Stat, 101. The
Indictment charges that William Henderson,
on the 7th day of May 1871 in Marion county
aforesaid, did unlawfully, wilfuly, maliciously
and knowingly prowl, travel and walk through
said county disguised and masked, to the alarm
and disturbance of the peace OF the State" sc.
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 TIE 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, III the case of the
State vs., Arnold Alley, where it was held that
an indictment charging that the defendant did
slit, cut of, and bite off the ear of another, is
good under the statute which declares that no
person shall unlawfuly and maiiciOusly slit,
cut OFT, or bite of the ear, lip, or nose OF an
other. The averments are divisible, and the
plaintiff in error cOUl have been convicted of
prowling. travelling, or walking contrary to the
statute l Chit. Cy Lar, RlteyS ed. 25l;
SharecooGs Rose. 9Th ed. 78; | Vat. Arch. C..
p 314 rrr
From the evidence in the record, the jury
were well warranted in finding the plaintiff In
error guilty, and assessing 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 womens cloth
ing entered house in the night time, where
the prosecutor, in state of partial lntoxcatlOn,
was lying on a bed that they aroused him and,
after Il 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 hlm
with sticks and switches"
The identity of Henderson Is clearly proved
by Wilkerson, the prosecutor, and Elizabeth
Morris, with whose husband Wllkerson 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 Wlkerson called
Henderson by name, and that they both Knew
him. These witnesses are Eot assalled or con-
tradicted, and the evidence tending to prove an
aibi is wholly unsatisfactory as TO the time and
other circumstances.
The affidavit of Henderson. offered on the ap-
plication for new trial, to the effect that he
s'went into the trial, expecting the evidence OF
General Caesar material witness in his behalf;
that he thought he was subpoenaed as he had
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 Mt
the time of going into trial. 1t does not appear
that he had been called by the sheriff, or used