Forrest v. State
| Decision Date | 30 April 1884 |
| Citation | 81 Tenn. 103 |
| Parties | SHIN FORREST v. THE STATE. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM HENRY.
Appeal in error from the Circuit Court of Henry County. C. ADEN, J.
T. C. FRYER for Forrest.
Attorney-General LEA for the State.
The prisoner has appealed in error from a judgment of conviction for the crime of murder in the first degree.
The indictment charges that the prisoner, on the first day of December, 1882, “unlawfully, feloniously, wilfully, deliberately, premeditatedly and maliciously did make an assault upon the body of one David Cruise and Jane Forrest and they the said David Cruise and Jane Forrest he the said Shin Forrest, then and there did unlawfully, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, kill and murder.” The prisoner went to trial upon the plea of not guilty without making any objection to the indictment. Upon the trial, the testimony showed that Jane Forrest was the mother and David Cruise the grandfather of the prisoner; that they were all living together in the same house; and that the prisoner killed them on the same night by separate blows with an axe helve, they being in different parts of the house in bed. No motion was made during the trial to compel the attorney-general to elect for which offense he would try the prisoner. The verdict of the jury was that “they find the defendant guilty of murder in the first degree as charged in the indictment, with possibly mitigating circumstances.” The defendant moved the court for a new trial and in arrest of judgment. It is now assigned as error that the trial court overruled the motion to arrest the judgment. And the argument is that the indictment was bad for duplicity, and that the prisoner was tried for two offenses.
An indictment of only one count, in the above form, against a defendant for the murder of two persons would be good upon its face, for the murder might have been committed on both in the same degree, by one and the same act: Kannon v. State, 10 Lea, 390. This was the form of the indictment which was held to be good upon its face in Womack v. State, 7 Cold., 508. A demurrer or motion to quash the indictment for duplicity would not lie in such a case. But the defendant, as was decided in that case, so soon as the testimony developed the fact that the killing was by separate acts although on the same occasion, and at any time during the trial, had the right to compel the State to elect upon which homicide it would proceed. And if it further appeared from the evidence that the two offenses were of different grades, and that the joinder of them was prejudicial to the prisoner, the court should set the verdict aside, and it would be error not to do so: Kannon v. State, 10 Lea, 386. In the case before us, the record leaves no doubt that the two crimes with which the prisoner stands charged and convicted were of the same grade. If the State chose to pursue the defendant for only one crime instead of for two crimes, it was for the interest of the defendant to acquiesce. And so he and his learned counsel manifestly thought. The question therefore, is, whether after such acquiescence, he is entitled to assign the fact as error.
In England it seems now to be settled that duplicity after verdict is no ground for a writ of error, and there seems to be no authority holding that it can be made the subject of a motion in arrest of judgment: 1 Bish. Cr. Pr., sec. 443. And the great weight of American authority is that the defendant cannot avail himself of the duplicity after verdict: Id. In this State it has been held in one case that the objection of...
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State v. Jefferson
...there are charges of alternative offenses. Generally, two distinct offenses cannot be charged in the same count of an indictment. Forrest v. State, 81 Tenn. 103; Wynne v. State, 45 Tenn. 319. TCA 40--1806, however, provides: '46--1806. Alternative allegation of means or intent.--When the of......
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State v. Johnson
...charging two or more offenses in the same count is bad for duplicity. Griffin v. State, 70 S.W. 61, 62 (Tenn. 1902); Forrest v. State, 81 Tenn. 103 (1884). "It is impermissible to charge two or more distinct and separate offenses in a single-count indictment." Michael Burnett, 2006 WL 72130......
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State v. Burnette, No. E2005-00002-CCA-R3-CD (TN 3/22/2006)
...offenses the punishment of each of which is different, is bad for duplicity. Griffin v. State, 70 S.W. 61, 62 (Tenn. 1902); Forrest v. State, 81 Tenn. 103 (1884). It is impermissible to charge two or more distinct and separate offenses in a single-count indictment. State v. Angela E. Isabel......
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Ince v. State
... ... Kirby's Dig., § ... 2286; Pooler v. United States, 127 F. 509; ... Connors v. United States, 158 U.S. 408, 39 ... L.Ed. 1033, 15 S.Ct. 951; 1 Bishop, Crim. Proc. §§ ... 443, 447; Clark's Crim. Proc. p. 296; Cornell v ... State, 104 Wis. 527, 80 N.W. 745; Forrest ... v. State, 81 Tenn. 103, 13 Lea (Tenn.), 103; ... Com. v. Monahan, 170 Mass. 460, 49 N.E ... 751. The indictment is not void because of the misjoinder, ... but the objection must be raised before trial and verdict, so ... that the court may either quash the indictment or compel [77 ... ...