Campbell v. State
| Decision Date | 30 June 1836 |
| Citation | 17 Tenn. 333 |
| Parties | CAMPBELL v. THE STATE. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
The plaintiff in error was indicted in the circuit court of Blount county, for larceny. In the first count he was charged with having stolen a fifty-dollar bank-note; in the second he was charged with having received a fifty-dollar bank-note from some person unknown, knowing it to have been stolen; and in the third count he was charged with having received a fifty-dollar bank-note from one Henson, a man of color, knowing that he had stolen it.
At the February term, 1836, of said court the plaintiff in error was put upon his trial upon all the counts of the indictment, when the jury found that he was “not guilty in manner and form as charged in the first and third counts of the bill of indictment, but that he is guilty in manner and form as charged in the second count of the bill of indictment.” After this verdict was rendered a new trial was moved for by the defendant, which was granted by the court, and, in the language of the record, “the verdict was ordered to be set aside.”
At the May term of the court the defendant was again put upon his trial, whereupon he objected to being tried on the first and third counts, on which he had been acquitted; but the court ordered him to be tried upon the whole indictment, and the jury upon this trial found that he was not guilty as charged in the first and second counts of the indictment, but that he was guilty as charged in the third count. The counsel for the defendant then moved the court that he be discharged, which motion was overruled by the court. Reasons were then filed in arrest of judgment, but the court refused to arrest the judgment, and proceeded to pronounce sentence upon the prisoner, agreeably to the finding of the jury.
P. Lea and R. M. Anderson, for plaintiff in error.
Geo. S. Yerger, Attorney General, for the State.
It is insisted for the plaintiff in error that, as he was found not guilty as charged in the first and third counts of the indictment on the first trial, and on the second trial he was found not guilty as charged in the second count, that he had been acquitted of the whole charge; that the trial the second time, upon the first and third counts, was against the constitution and laws of the land, and that he is entitled to be discharged from the prosecution.
The attorney general admits that it is against law to try and punish a party for an offence of which he has been acquitted on a former trial, but he contends that the verdict of the jury was an entire thing, and that the court could not set it aside in part without setting it aside altogether, and that, as the new trial was granted upon the application of the plaintiff in error in order to afford him the benefit which he sought, he was necessarily deprived of the verdict in his favor upon the first and third counts of the indictment.
An indictment is a written accusation of one or more persons of a crime, presented upon oath by a jury of twelve or more men, termed a grand jury. 1 Chitty Crim. Law, 168. It is frequently advisable to insert two or more counts in an indictment. 1 Chitty Crim. Law, 248. But every separate count charges the defendant as if he had committed a distinct offence, because it is upon the principle of the joinder of offences that the joinder of counts is admitted. 1 Chitty Crim. Law, 249. 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 the same offender. 1 Chitty Crim. Law, 253. And several persons may be joined in the same indictment, charged in separate counts with distinct offences, but they must be of the same nature, and such as will admit the same plea and the same judgment. Starkie's Crim. Plead. 48; 2 Hale, 174; 8 East, 46.
In all these cases of joinder, whether of different offenders or of different offences against the same individual, the jury may find a verdict of guilty upon some of the counts, and not guilty upon others. 1 Chitty Crim. Law, 638, 640, 641.
It is well settled that, where several defendants are tried at the same time, and some are acquitted and some convicted, the court may grant a new trial as to those convicted without being under the necessity of setting aside the entire verdict. Tidd, 820; 6 Term Rep. 619. The establishment of this proposition defeats the argument upon which the attorney...
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Usary v. State
...itself, see Rice v. State, 50 Tenn. 215, 221, 3 Heisk. 215, 221. And that each is regarded as charging a distinct offense, see Campbell v. State, 17 Tenn. 333, 9 Yerg. 333, 30 Am.Dec. 417; Esmon v. State, 31 Tenn. 14, 1 Swan. 14; Boyd v. State, 47 Tenn. 69, 7 Cold. 69; State v. Lea, 41 Tenn......
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Usary v. State
... ... necessary to constitute the offense sought to be charged in ... such count. For the rule that each count must be a complete ... indictment in itself, see Rice v. State, 50 Tenn ... 215, 221, 3 Heisk. 215, 221. And that each is regarded as ... charging a distinct offense, see Campbell v. State, ... 17 Tenn. 333, 9 Yerg. 333, 30 Am.Dec. 417; Esmon v ... State, 31 Tenn. 14, 1 Swan. 14; Boyd v. State, ... 47 Tenn. 69, 7 Cold. 69; State v. Lea, 41 Tenn. 175, ... 1 Cold. 175. In the Esmon Case, supra, it was said, ... "Each count of an indictment is regarded as containing ... ...
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