Adams v. Russell
| Decision Date | 07 November 1942 |
| Parties | ADAMS et al. v. RUSSELL et al. |
| Court | Tennessee Supreme Court |
Error to Criminal Court, Knox County; J. Fred Bibb, Judge.
Habeas corpus proceeding by Hubert Adams and others, against Herbert N. Russell and others, Wardens, to obtain petitioners' release from state prison. To review a judgment dismissing petition, petitioners bring error.
Affirmed.
Hobart F. Atkins, of Knoxville, and Will H. Clarke, of Jonesboro for plaintiffs in error.
Nat Tipton, Asst. Atty. Gen., for the State.
This petition for habeas corpus was dismissed by the trial judge. The three petitioners were convicted in Greene County in 1934 of murder in the first degree, of which they had plead guilty. They have been and now are in the State prison, from which they seek release in this proceeding. They say that the judgment of the Greene County Court is void for the reason that it followed and was in accord with the verdict of the jury which fixed the punishment at not less than twenty and not more than thirty-six years, it being insisted that the jury was not authorized to fix an indeterminate sentence in a case of conviction of first-degree murder. Code, § 10772 is invoked, which prescribes the punishment for murder in the first degree, providing that in such case, "it shall be the duty of the jury *** to fix his punishment, which punishment shall be death *** or the jury may, if they are of opinion that there are mitigating circumstances, fix the punishment at imprisonment in the penitentiary for life, or for some period over twenty years."
The complaint is that the jury and court unlawfully, without statutory authority, gave the petitioners the benefit of this indeterminate sentence law, thus treating them with more consideration than they, guilty of first-degree murder, had a right to receive. They made no complaint then. They did not seek to have this error in their favor corrected, either by the trial court, or by appeal. They have not served the minimum term which the statute they invoke prescribes, but asserting now that this error rendered the judgment void seek their freedom.
It is, of course, well settled that one imprisoned under judicial authority may obtain relief by the writ of habeas corpus only where the sentence is void, not merely voidable; or the term of imprisonment has expired. State v. Taxing Dist. of Shelby County, 16 Lea 240, 84 Tenn. 240. Errors of the voidable class are not reviewable in this proceeding.
The Assistant Attorney General submits two replies, (1) that the indeterminate sentence law may lawfully be applied by the jury, at its election, in exercise of the broad discretion vested in it by statute to fix the punishment in this class of cases; and (2) that the judgment is not void, but voidable only, in any event.
Our indeterminate sentence law is in Code, § 11766, reading: "Whenever any person over eighteen years of age is convicted of any felony or other crime and punishable by imprisonment in the penitentiary, with the punishment for said offense within minimum and maximum terms provided for by law, the jury in addition to finding the defendant guilty shall fix the maximum term of the convicted defendant and its form of verdict shall be: 'We find the defendant guilty as charged in the indictment,' or 'We find the defendant guilty of *** (whatever may be the offense charged), and fix *** years,' and the court imposing judgment upon such verdict shall not fix a definite term of imprisonment, but shall sentence such person to the penitentiary for a period of not more than the term fixed by the jury, making allowance for good time as now provided by law."
As expressive of the sole and broad power vested in the jury to fix sentences in these murder cases, the opinion in Mays v. State, 143 Tenn. 443, 448, 226 S.W. 233, 234, is in point. Said the court:
This being the only limitation placed on the exercise of this broad discretion of the jury, why may not the jury, if keeping within the limit of years, provide for the sentence to be indeterminate?
We are cited to no reported case in this State on the question, but that distinguished and lamented jurist, Mr. Justice Cook, who graced this bench for so many years and whose experience as a trial judge particularly fitted him for consideration of this class of questions, perhaps had this line of reasoning in mind when he...
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Moree v. State, No. E2005-02302-CCA-R3-HC (Tenn. Crim. App. 2/13/2007), E2005-02302-CCA-R3-HC.
...v. Bomar, 214 Tenn. 493, 381 S.W.2d 287 (1964); State ex rel. Grandstaff v. Gore, 182 Tenn. 94, 184 S.W.2d 366 (1945); Adams v. Russell, 179 Tenn. 428, 167 S.W.2d 5 (1942). The petitioner's claim that his sentence is unlawful because he was entitled to be sentenced under the more favorable ......
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Franks v. State
... ... than twenty years, the minimum fixed by statute, nor more ... than the maximum fixed by the jury.' ... In ... Adams v. Russell, 179 Tenn. 428, 432, 167 S.W.2d 5, ... 7, after quoting the above language from Wright v. State, ... supra, the Court said: 'The court ... ...
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State ex rel. Grandstaff v. Gore
... ... Taking District, 84 Tenn. 240; Lynch ... et al. v. State ex rel. Killebrew, 179 Tenn. 339, 166 ... S.W.2d 397. Moreover, as we said in Adams v ... Russell, 179 Tenn. 428, at page 434, 167 S.W.2d 5, in ... concluding that opinion, in any event, this application, as ... was true in that ... ...
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State ex rel. Crumpler v. Henderson
...passed the indeterminate sentence law. This being our view of the matter, the expressions in Wright v. State, supra; Adams v. Russell, supra (179 Tenn. 428, 167 S.W.2d 5), and Coursey v. State, supra, are disapproved, and we hold that the indeterminate sentence law does not apply to the off......