Grant v. State

• Decision Date: 31 December 1865
• Citation: Grant v. State, 42 Tenn. 216 (Tenn. 1865)
• Parties: THOMAS GRANT v. THE STATE.
• Court: Tennessee Supreme Court

42 Tenn. 216

THOMAS GRANT

v.THE STATE.

Supreme Court of Tennessee.

December Term, 1865.

FROM FRANKLIN.

The plaintiff in error in this case submitted, and was fined by the court for a common assault and battery, at the November term, 1865, from which judgment he appealed, Judge WILLIAM P. HICKERSON, presiding.

A. L. MARKS, for the plaintiff in error.

THOS. H. COLDWELL, attorney-general, for the state.

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

The plaintiff in error was indicted in the circuit court of Franklin county, at its July term, 1860, for an assault with intent to kill and murder.At the November term of the court, the attorney general, with the assent of the court, dismissed the indictment so far as it charged the defendant with committing an assault with intent to murder; and the defendant submitted to the mercy of the court, as to the charge of an assault, and was fined thirty-five dollars and adjudged to pay the costs of the prosecution; to which action of the courtthe defendant excepted, and has presented [prosecuted] an appeal to this court.We are unable to discover any substantial distinction between this case and the case of Brittain vs. The State,7 Hum., 159.That case, like this, was an indictment for an assault with intent to commit murder in the first degree.In that case, the attorney-general, with the assent of the court, entered a nolle prosequi as to the felony, and thereupon the defendant submitted to the court, and was fined, from which judgment he appealed.In this case, the attorney-general, with the assent of the court, dismissed the indictment so far as it charged the defendant with committing an assault with intent to murder, and thereupon the defendant submitted to the mercy of the court, as to the charge of an assault, and was fined.

In one case, the attorney-general entered a nolle prosequi as to the felony, and in the other he dismissed the indictment so far as it charged the defendant with an assault with intent to murder, and this is the only difference between the two cases.In this case, the court held that the effect of the nolle prosequi discharged the defendant altogether from the accusation, and we think the reasoning of the court in that case applies with more force to the case now under consideration than it did to that case.In that case, the nolle prosequi was only as to the felony, while in this case“the indictment, so far as it charged the defendant with committing an assault...