Kelly v. State

• Decision Date: 31 December 1872
• Parties: BILL KELLY v. THE STATE.
• Court: Tennessee Supreme Court

66 Tenn. 84

BILL KELLY

v.THE STATE.

Supreme Court of Tennessee.

December Term, 1872.

FROM DAVIDSON.

Appeal from the Criminal Court. THOS. N. FRAZIER, Judge.

Attorney-General HEISKELL for the State.

No brief for Kelly.

NICHOLSON, C. J., delivered the opinion of the court.

Bill Kelly was tried and convicted of a rape on Sarah E. Moore, in the Criminal Court of Davidson county, and sentenced to death. He has appealed to this court.

The indictment contains two counts--one for rape, and the other for assault and battery with intent to commit a rape.

The Criminal Judge charged the jury: “Before the jury would be warranted in convicting the defendant of rape, as charged in the first count in the indictment, they should be fully satisfied of his guilt beyond any and all reasonable doubt. But if they are so satisfied of his guilt, their verdict should be ‘guilty as charged in the first count,’ or ‘guilty as charged in the indictment generally,’ as the first count includes the offense charged in the second count.”

The jury returned the following verdict: “They do say that the defendant is guilty as charged in the indictment; and the jurors aforesaid do further say that the defendant, for his offense aforesaid, shall suffer death by hanging.”

It is insisted that the Judge erred in his charge that if the jury were satisfied that the defendant was guilty of the rape it would be sufficient to find a general verdict of guilty, although there was a second count charging an assault and battery with intent to commit a rape.

It is obvious that the crime of rape charged in the first count includes the crime of an assault and battery with intent to commit a rape charged in the second count, and the defendant might well have been convicted of an assault and battery with intent to commit a rape on the first count for rape, without having a second count as to the assault and battery. It would be impossible for the jury to find the defendant guilty of rape without also finding that he made the assault and battery with intent to commit a rape. The true distinction seems to be, that where distinct offenses, having no necessary connection, are charged in separate counts, a general verdict of guilty would constitute such error as would be sufficient for arresting the judgment. Such, we suppose, was the case of Bly v. The State, referred to in King's Dig., sec. 5066, as a MS. case at Brownsville, April term, 1868. But where the indictment charges two distinct...