Lawless v. State
| Decision Date | 31 December 1879 |
| Parties | JOHN LAWLESS v. THE STATE. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM SUMNER.
Appeal in error from the Circuit Court of Sumner County. J. C. STARK, J.
C. R. HEAD and LEE HEAD, for Lawless.
Attorney-General LEA, for The State.
The plaintiff in error was convicted of an assault with intent to commit murder in the second degree, and appealed in error.
An indictment was found against the prisoner at the February term, 1879, of the Circuit Court of Sumner County, upon which he was brought into Court by a capias returnable to June term.
On the 30th of June, the Attorney-General, with the consent of the Court, entered a nolle prosequi, but the prisoner was directed to be retained in custody until another indictment could be found. The following order was then made and entered on the minutes of the Court:
“It appearing to the Court, from proof, that an indictable offense has been committed in said county, and that John Lawless is accused with the commission thereof, and that no one will be prosecutor, it is therefore ordered by the Court that the District Attorney-General file an indictment officially.”
An indictment was thereupon found by the grand jury, containing three counts, one for an assault with intent to commit murder in the first degree, another for an assault with intent to commit murder in the second degree, and the third for an assault with intent to commit manslaughter, each being obviously for the same assault on the same person.
The defendant filed a plea in abatement, to the effect that no witnesses were examined nor proof taken by the Court that an indictable offense had been committed.
This plea was, on motion of the Attorney-General, stricken from the files, and the action of the Court is now assigned as error.
By the Code, sec. 5097, sub-sec. 9, a prosecutor is dispensed with, and the District Attorney may file a bill of indictment upon an order of the Court to file it officially, which order may be made “when it appears to the Court” that an indictable offense has been committed, and that no one will be prosecutor. Previous to the Code, the discretion of the Court was limited by the Act of 1842, chap. 65, to cases where the Judge might be satisfied from the examination of witnesses in open Court. Even under this statute a general order like the one in this record was held sufficient, the presumption being that the Court had done its duty; Simpson v. State, 4 Hum., 456;Bennett v. State, 8 Hum., 123.
The Code drops this limitation, and allows the exercise of the discretion, “when it appears to the Court” that an offense has been committed. It is clearly not necessary that the facts should appear by the examination of witnesses in open Court, nor by proof formally taken. It would be sufficient if the Court acted upon its own knowledge, or, as in this case, upon the fact that an indictment had actually been found against the defendant at a previous term.
In this view, the plea which fails to negative these sources of knowledge was clearly bad, and it may be doubted whether any plea at all will lie to the exercise of so discretionary a power.
The defendant next moved the Court to quash the indictment because it charged three distinct offenses in three several counts, for each of which a different punishment is prescribed. This motion being overruled, the defendant moved that the Attorney-General be compelled to elect upon which count he would put the defendant on trial, which motion was also overruled. These rulings are assigned as error.
But it has long been settled in this State, in accord with authority, that different offenses, punished by different degrees of severity, differing only in degree, and belonging to the same class of crimes, may be united, and it is not error in the Court below to refuse to quash for this reason, or to compel the prosecutor to elect on which of the charges he would proceed: Hampton v. State, 8 Hum., 69;Cash v. State, 10 Hum., 111. A fortiori, where the offense is the same, the several counts being inserted to meet the uncertainty of the evidence: Boyd v. State, 7 Cold., 77;Wright v. State, 4 Hum., 194;Hall v. State, 3 Lea, 559.
The assault in the present case was one, but it was uncertain whether the evidence would make out the higher or lower grade of offense: Code, sec. 5121. The doubt in such case was whether a single count for the highest grade would, under the Code, sustain a verdict for either of the lower grades. This doubt was resolved in the affirmative in Smith v. State, 2 Lea, 614. But there never was any doubt that separate indictments or counts would lie for each grade under the Code, sec. 4630: 2 Lea, 617.
The defendant having been arraigned, pleaded not guilty, and the cause was continued, upon application of the Attorney-General, to the next term. Afterwards, at the same term, upon application of the Attorney-General, leave was granted him, over the exception of the defendant, to recommit the indictment to the grand jury for amendment. It was afterwards returned into Court by the grand jury endorsed thus:
It is now objected that the motion to recommit does not mention the proposed amendment, and that the amendment being material, it was equivalent to a new indictment, and required the same formalities of submission to the grand jury-- examination of witnesses and return into Court.
The record does show that, after the recommittal, the grand jury returned into open Court in a body the amended indictment, showing that it had been amended by them, and in what respect.
It is not required that the amendment should be mentioned in the application. Nor does it seem necessary to go through all the formalities, even when new counts are added, if done by the Attorney-General: Hite v. State, 9 Yer., 198, 203. And for aught that appears, the same witnesses marked on the indictment were re-examined.
After one of the defendant's witnesses had been examined, the Court permitted the Attorney-General to recall the witness...
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