Ayrs v. Stats

• Decision Date: 31 December 1867
• Citation: 45 Tenn. 26
• Parties: Henry Ayrs v. The Stats.
• Court: Tennessee Supreme Court

45 Tenn. 26

Henry Ayrs

v.The Stats.

Supreme Court of Tennessee.

December Term, 1867.

FROM GILES.

The plaintiff in error, was convicted at the August Term, 1867, and sentenced to ten years imprisonment; from which verdict and judgment, he appealed. Judge M. M. BRIEN, presiding, by interchange.

JOHN C. BROWN, for Plaintiff in Error.

THOMAS H. COLDWELL, Attorney-General for the State.

SHACKELFORD, J., delivered the opinion of the Court.

The plaintiff in error, was indicted in the Circuit Court of Giles County for horse stealing. The indictment contains two counts; the first for stealing a horse. The second count is that he did feloniously and fraudulently, buy, receive, conceal, or aid in concealing, a horse, knowing him to have been stolen, etc., etc.

The indictment was signed by Austin Hickey, Attorney-General pro tem.,-- indorsed: “a True Bill. Lewis B. Marks, Foreman of the grand jury.” The witness, John Shaddon, sworn before the grand jury by the foreman. At the April Term, 1867, the following entry appears of record: “Austin Hickey presented himself in Court and was sworn in as Attorney-General pro tem., and entered upon his duties as such.” At the April Term, 1867, the plaintiff in error moved the Court to quash the second count in the indictment which motion was continued. At the August Term, 1867, as appears from the record, Jason Bullock prosecuted the pleas of the State as Attorney-General pro tem. The plaintiff in error was arraigned and tried at the August Term, 1867, by a jury who found a general verdict of guilty, and fixed the period of his confinement in the penitentiary at ten years. He moved for a new trial, and in arrest of judgment, which motions were severally overruled; from which he has appealed in error, to this Court.

Various errors have been assigned in argument:

First, It is insisted that the joinder of two counts, charging distinct felonies of different grades and punishments, can not be maintained under a general verdict of guilty. To be maintained, they must be of the same nature, and admit of the same plea and judgment. The offenses charged, are punished according to the terms of the statute. They are liable to have distinct, separate and different punishments, and not same judgments. The offense charged in the first count, may be punished capitally. The second count, is punished by confinement in the penitentiary. We think this assignment of error, can not be sustained. The offense of stealing a horse and of stealing, and receiving stolen goods, are different offenses, and punished by different degrees of severity; but they differ only in degree, and belong to the same class of crimes, and may be united: 8 Hum., 71. By the Act of May, 1865, the crime of horse stealing may be capital, but that does not change the rule of law. This principle was settled in the case of The People vs. Rynders: 12 Wend., 425; and is cited approvingly by this Court in the case referred to, in 8 Hum., 71; in which it is said, there would be an incongruity in incorporating in the same indictment, offenses of a different character. Such, for instance, as for forgery and perjury. It can not be denied, that, in such a case a Court would refuse to hear a trial upon both. There can be no doubt but when offenses of the same character, differing only in degree, are united in the same indictment, the prisoner may, and ought to be, tried on both charges at the same time. Mr. Chitty, in his work on Criminal Law, vol. 1, p. 235, says: “In cases of felonies, no more than one distinct offense, or criminal transaction, at one time, should regularly be charged upon the prisoner in one indictment; because if it should be shown to the Court before plea, they will quash the indictment lest it should confound the prisoner in his defense, or prejudice him in his challenges to the jury; and if they do not discover it until afterwards, they may compel the prosecutor to elect on which charge he will proceed.” But this is only a matter of prudence and discretion, which rests with the judge to exercise; for, in point of law, there is no objection to the insertion of several distinct felonies of the same degree, though committed at different times, in the same indictment, against same offender and it is no ground of demurrer, or arrest of judgment: 4 Hum., 190, and authorities cited. The rule is, after a general verdict of guilty, it is no objection to an indictment on motion in arrest of judgment, that offenses of different grades, and requiring different punishments, are charged in the different counts. If any one or more of the counts are sufficient, the Court will render judgment upon such counts: Wharton's Crim. Law, 150, and 17 Vermont, 658.

Second, No action was taken by the Court, on the motion to quash the second count in the indictment. It is insisted this is error; that the plaintiff in error was entitled to a judgment on the motion...