Foutch v. State

• Decision Date: 12 February 1898
• Parties: FOUTCH v. STATE.
• Court: Tennessee Supreme Court

45 S.W. 678

100 Tenn. 334

FOUTCH v. STATE.

Supreme Court of Tennessee.

February 12, 1898

Appeal from circuit court, Dekalb county; M. D. Smallman, Judge.

Lon Foutch was convicted of murder in the second degree, and he appeals. Reversed.

R Cantrell, W. V. Whitson, R. L. Cantrell, J. J. Ford, and W B. Corley, for appellant.

Dan Williams, Wade & Sparkman, and the Attorney General, for the State.

CALDWELL J.

Lon Foutch was indicted in the circuit court of Dekalb county for the murder of Stanton Malone, and has been twice tried. On the first trial he was convicted of murder in the second degree, and his punishment fixed at 11 years in the penitentiary. He appealed in error, and this court, at its December term, 1895, reversed the action of the trial judge on the account of erroneous instruction to the jury, and remanded the case for a new trial. The opinion then delivered is reported in 95 Tenn., at page 711 et seq., 34 S.W. 423. The last trial resulted in a conviction for the same grade of offense, and the punishment was assessed at 10 years in the penitentiary. Another appeal in error has been prosecuted and numerous reasons for which another new trial is sought have been assigned and urged by the prisoner's counsel.

1. A number of complaints are lodged against the charge to the jury; but these cannot be considered, because the charge is not made a part of the record by bill of exceptions. Though a paper purporting to be a charge is copied into the transcript, it is not embodied in the bill of exceptions or called for by it. Consequently this court has no means of knowing that it is, in truth, the deliverance made by the trial judge, and for that reason must pass it by as an extraneous paper. State v. Hawkins, 91 Tenn. 140, 18 S.W. 114; Marble Co. v. Black, 89 Tenn. 119, 14 S.W. 479; Railway Co. v. Foster, 88 Tenn. 671, 13 S.W. 694, and 14 S.W. 428, and citations.

2. The court's refusal to instruct the jury as specially requested by defendant's counsel, after the principal charge had been given, is assigned as error. This assignment must also fail on account of the absence of the principal charge, and without reference to the contents of the instruction specially requested. Since the charge given does not appear in the record so that it may be examined, this court presumes, conclusively, that it stated fully and accurately every proposition of law arising in the case. Railroad Co. v. House, 96 Tenn. 552, 35 S.W. 561; Railway Co. v. Foster, 88 Tenn. 671, 13 S.W. 694, and 14 S.W. 428. Therefore the refusal could have wrought no injury of which the defendant can justly complain. If the propositions embodied in this request were sound and pertinent he is presumed to have had the benefit of them in the principal charge, and if they were not sound and pertinent they should not have been given.

3. The court's failure to read to the jury the instructions requested by the defendant is made the subject of another assignment of error. The contention made in support of this assignment is that it was the court's duty, under the statute, to read this instruction to the jury, whether he approved it or not; that the defendant was entitled to have his view of the legal question involved read to the jury, although disapproved by the trial judge. This is an erroneous interpretation of the law. Section 2, c. 57, Acts 1873 (Mill. & V. Code, § 6052; Shannon's Code, § 7186), imperatively requires that "every word" of the court's charge in felony cases shall be written and read to the jury, filed with the papers, and taken out by the jury upon retiring to consider of a verdict. The third section--that upon which the contention arises--is in these words: "If the attorneys on either side desire further instructions given to the jury, they shall write precisely what they desire the judge to say further. In such case the judge shall reduce this decision on the proposition or propositions to writing, and also read the same to the jury without one word of oral comment, it being intended to prohibit judges wholly from making oral statements to juries in any case involving the liberties and lives of the citizens." Mill. & V. Code, § 6053; Shannon's Code, § 7187. Though this provision is not so perspicuous as might be desired, its terms, when construed with reference to the recognized functions of the trial judge, indicate clearly that the legislature intended only to require him to write "his decision" on the "instructions" offered, and, if approved, then to read them and "his decision" to the jury as a part of his charge. There is nothing in the language used nor in the context to indicate an intention that he should read to the jury any "proposition or propositions" to which he might not assent. The manifest purpose of the two sections mentioned was only to have every part of all instructions given by the court to the jury in felony cases reduced to writing and read, and not in any sense or to any degree to furnish the jury with the disapproved views of counsel as to the law of the cases. It would be so radical a departure from settled rules, and so fruitful a source of disorder and confusion, to require the presiding judge to submit to the jury any and every proposition that might be presented by counsel on either side, and whether approved or disapproved by him, that this court would not believe the assembly entertained such a purpose, unless it be expressed in the clearest and most indubitable language. Besides, if legislation were so intended, it could but prove abortive and nonenforceable, because an interruption and abridgement of the court's constitutional function of charging the jury according to his best judgment of the law. This court, speaking through judge Turney, in the case of Lang v. State, said: "The defendants submitted a series of propositions, and requested the court to give them in charge to the jury. They were 'handed to the jury' with the indorsement, 'Accepted and given to the jury, except in so far as they conflict with the principles laid down in the charge.' This was error. It was the duty of the court to have examined and passed upon the several requests. If they, or either of them, were not, in the opinion of the court, the law of the case, they should have been entirely withheld from the jury, and filed, in order to be used if a bill of exception became necessary. Under the rule now in force in this state, the jury must take the law as laid down to it by the court. It cannot and must not be required to compare diverse opinions of the court and counsel with a view of settling questions of conflict between them." 16 Lea, 434, 435, 1 S.W. 318, 319. It is obvious, therefore, from every standpoint, that the trial judge in the present case was right in not reading the rejected instruction to the jury.

4. It is objected that the court in making up the trial jury erroneously allowed the state six peremptory challenges, when, as contended, only four were allowable under the law. The Code of 1858 contained the following pertinent sections:

"4013. In trial of all prosecutions for crime under the grade of petit larceny, the state and the defendant may each challenge peremptorily five jurors without assigning any cause.

"4014. In the trial of all criminal prosecutions above the grade of petit larceny, the state is entitled to ten peremptory challenges, and the defendant, if the charge is a felony punishable with death, to thirty-five challenges, and in all other cases to twenty-four."

It is readily observable that these provisions make two classes of peremptory challenges for the state and three for the defendant. Prosecutions for crimes under the grade of petit larceny are of one class as to the state and of one class as to the defendant (section 4013); and those for crimes above that grade form one class as to the state and two classes as to the defendant (section 4014). In all prosecutions for crimes under the grade of petit larceny, the state and the defendant have 5 challenges each; in those for crimes above that grade the state is given 10 challenges, and the defendant 35 or 24, as the offense may or may not be punishable by death. Whether the offense be...