Graham v. State
| Decision Date | 29 July 1957 |
| Citation | 304 S.W.2d 622,202 Tenn. 423,6 McCanless 423 |
| Parties | , 202 Tenn. 423 James William GRAHAM v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
Henderson & Henderson, J. H. Henderson, Cletus W. McWilliams, Franklin, for plaintiff in error.
James M. Glasgow, Asst. Atty. Gen., for the State.
James William Graham is before the Court on an appeal from a conviction of murder in the first degree with his punishment fixed at twenty (20) years and one (1) day in the State penitentiary. One Eugene Robertson was jointly indicted and tried with him but was acquitted by the jury.
When Graham was arraigned upon the indictment, he stated to the court that he was unable to employ counsel, and thereupon the trial judge appointed able counsel to represent him. They have served his cause with ability and with the utmost fidelity.
We have filed a separate opinion in which consideration was given to certain factual issues and the law relating to an assignment of error complaining of improper argument of the District Attorney General.
The case was reversed and remanded for a new trial for the following reasons.
The assignment of error which challenges the action of the trial judge in permitting the District Attorney General in his closing argument before the jury, over defendant's objection, to argue the effect of the indeterminate sentence law must be sustained.
It clearly appears from the entire record that the State's counsel felt that the case, both from a factual and legal point of view, required a verdict of guilty of the highest grade of felonious homicide. His reading of Section 40-3612, T.C.A., was to impress the jury with the effect of the indeterminate sentence law. He then read Section 40-3613, T.C.A., entitled, 'Power to parole', as follows:
'The board of pardons and paroles shall have power to cause to be released on parole any person sentenced to confinement in the penitentiary who has served the minimum term provided by law for the offense committed by him, less good time; provided, that no convict serving a life sentence shall be paroled until he has served for twenty-five (25) years, less diminution which would have been allowed for good conduct had his sentence been for twenty-five (25) years.'
Following the reading of this Section of the Code, he said:
It is argued by the State's counsel in reply that it was not error because it is proper for the Attorney General to argue the law of the case. The fallacy of this argument is that the parole law is not the law of the case, or any part of it. Moreover a prisoner has no absolute right to be released upon parole where he has a clean conduct record while in prison and has served the minimum term for his offense. State ex rel. Greene v. Rimmer, 131 Tenn....
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State v. Nichols
...during argument, even indirect references, are improper. Smith v. State, 527 S.W.2d 737, 738 (Tenn.1975); Graham v. State, 202 Tenn. 423, 304 S.W.2d 622 (1957). While the present argument could be interpreted as hinting at the idea that a life sentence carries with it the possibility that d......
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People v. Morse
... ... The trial court instructed the jury that 'Every person guilty of first degree murder shall suffer death or confinement in the State Prison for life in the sole discretion of the jury. * * * In making your determination as to the penalty to be imposed, you may, in exercising your ... (See Graham v. Tennessee (1957) 202 Tenn. 423, 304 S.W.2d 622.) ... The appellate court found prejudicial error in Sukle v. People (1941) 107 ... ...
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...U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 464 (1982). 5. Farris v. State, 535 S.W.2d 608, 613-614 (Tenn.1976), quoting Graham v. State, 202 Tenn. 423, 304 S.W.2d 622, 624 (1957). Accord, State v. Leland, 190 Or. 598, 623, 227 P.2d 785, 796 (Ore.1951) ("purely speculative"); Jones v. Commonwealth......
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