Cash v. State

• Decision Date: 31 December 1849
• Parties: CASH v. THE STATE.
• Court: Tennessee Supreme Court

29 Tenn. 111

CASH

v.THE STATE.

Supreme Court of Tennessee.

December Term, 1849.

Hickerson and Colyer, for the plaintiff in error; Attorney-General, for the State.

GREEN, J., delivered the opinion of the court.

The plaintiff in error was indicted in Coffee county circuit court, for larceny, convicted and sentenced to confinement in the penitentiary for the term of eleven years, from which judgment he appealed to this court.

The indictment contains four counts. The first count charges that the defendant did steal Wilson, a slave, the property of Joseph Willis. The second count charges the stealing Wilson, a slave, the property of William H. Willis. The third count charges the stealing a gray mare, the property of Abner Bryant, and the fourth count charges the stealing a bay horse, the property of John Ganaway.

The defendant moved the court to quash the indictment, which was refused. The defendant then moved the court, to compel the prosecutor to elect on which of the charges he would proceed, which was also refused, and the defendant was put upon his trial on the entire indictment.

During the t??ial, and after it had been announced that the evidence had closed, and one attorney on behalf of the State, and one for the defendant, having argued the cause to the jury, the court suggested to the attorney-general, that he might introduce evidence in relation to the venue, and thereupon several witnesses were examined. The court offered to permit the defendant to introduce witnesses to that point, which he declined to do. The argument of the cause was then concluded. During the trial the defendant read to the jury, an act passed the 30th of January, 1846, entitled “an act to attach a portion of the county of Coffee to the county of Grundy,” and the State introduced witnesses to prove that the line described in that act would run within less than twelve miles of the seat of justice of Coffee county. The court told the jury that if the line described in said act, runs within less than twelve miles of the seat of justice of Coffee county, it is unconstitutional and void.

His honor, in his charge to the jury, said that although the negro might be runaway when he was taken, still, if the owner pursued him and continued to enquire after him, he might be the subject of larceny. The defendant was found guilty and appealed to this court.

1. It is now earnestly insisted that the circuit court erred, in refusing to quash the indictment, and in refusing to compel the prosecutor to elect on which count he would proceed.

The authorities referred to certainly establish the principle, that a defendant ought not to be charged with different felonies, in different counts of the same indictment. It is calculated to confound the prisoner in his defense, and to deprive him of the full benefit of the challenges allowed him by law, and the humanity of the law, will, therefore, induce the court, in most cases of this kind, to quash the indictment, or put the prosecutor to his election on which count he will proceed. But it may sometimes be proper to unite in the same indictment different offenses, when they are of the same character, differing only in degree, as in the case of The People v. Rynelers (12 Cow. 435), when it was held, that a charge for forging a check, and also for publishing it as true, knowing it to be false, were properly united. There is, therefore, in point of law, 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, and it is no ground, either of demurrer or arrest of judgment. 1 Chit. Cr. L. 235; Arch. Cr. Pl. ch. 1, sec. 5, p. 61. Wright v. The State, 4 Humph. 192. Both Chitty and Archbold, while they lay down the principle, that such joinder ought not to be allowed, also, state that it is no objection in arrest of judgment, and so this court held in the case of Wright v. The State, 4 Humph. 195.

We cannot,...