Goff v. State

186 Tenn. 212, 209 S.W.2d 13 (1948)

 

RULE:

A single violation of Tenn. Code § 5253 makes an offender liable only to the penalty prescribed, to-wit, a forfeiture of $ 10. Therefore, no criminal action can be predicated upon a single violation of the statute. Such single violation is not indictable or presentable as a misdemeanor.

FACTS:

Defendant was charged by a presentment with engaging in his usual and ordinary vocation on a Sunday. The presentment alleged that defendant operated his poolroom on a particular Sunday. After a trial, defendant was convicted and sentenced to pay a fine. On appeal, the court reversed the conviction. The court noted that the common law offense of exercising a common vocation on Sunday was not committed until it was carried on to such an extent as to create a nuisance and that it was the continuation of such an act that made it a nuisance. Thus, the court ruled that the criminal action could not be maintained against defendant under Tenn. Code § 5253 (1932) or the common law and ordered that the presentment be quashed.

ISSUE:

Can a criminal action be predicated upon the single act of the defendant?

ANSWER:

No.

CONCLUSION:

No criminal action can be predicated upon an act, which is not made a crime either by statute or common law.  Every indictment or presentment “must contain a complete description of such facts and circumstances as will constitute the crime."  A presentment, therefore, which intends to charge the common law offense of exercising a common vocation of life on Sunday must allege that the act was committed not only on a particular Sunday but on a succession of Sundays. Where the act becomes a common law offense because it has become a nuisance "the averment to the common nuisance is essential to the validity of such indictment." 

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