Mays v. State
| Decision Date | 24 November 1920 |
| Citation | 226 S.W. 233,143 Tenn. 443 |
| Parties | MAYS v. STATE. |
| Court | Tennessee Supreme Court |
Error to Criminal Court, Knox County; T. A. R. Nelson, Judge.
Maurice Mays was convicted of murder in the first degree, and he brings error. Reversed and remanded.
Frank M. Thompson, Atty. Gen., for the State.
The plaintiff in error was indicted and tried for the murder of Mrs. Bertie Lindsay. The jury found him guilty of murder in the first degree. The trial judge sentenced him to death, and he has appealed in error to this court. The deceased was killed in August, 1919.
As stated above, the jury did not undertake to assess the punishment in their verdict. They simply returned a verdict of guilty of murder in the first degree. The death penalty was affixed by the court.
The procedure below would have been proper prior to the enactment of chapter 5 of the Acts of 1919. It is insisted that since the passage of that statute only the jury is authorized to assess the penalty in cases where a defendant is found guilty of murder in the first degree and that the verdict returned in this case and the subsequent judgment based thereon must be treated as null.
The statute referred to is as follows:
"An act to fix the punishment of persons convicted of murder in the first degree; to amend section 4601 of the Code of Tennessee so as to provide that the jury shall fix the punishment of persons convicted of murder in the first degree and to prescribe when they may assess less than capital punishment, and what punishment they may assess in such cases; to repeal chapter 181 of the Acts of the Regular Session of 1915; to repeal section 5257 of the Code of Tennessee; and to repeal all laws in conflict with this act.
Section 1. Be it enacted by the General Assembly state of Tennessee when any person is convicted of the crime of murder in the first degree, or as an accessory before the fact of such a crime, it shall be the duty of the jury convicting him in their verdict to fix his punishment, which punishment shall be death in the mode prescribed by law for the infliction of the death penalty in capital cases, or the jury may, if they are of opinion that there are mitigating circumstances, fix the punishment at imprisonment in the penitentiary for life or for some period over twenty years.
Sec. 2. Be it further enacted, that section 4601 of the Code of Tennessee of 1858, which fixes the punishment of persons convicted of murder in the first degree at death, be and the same is hereby amended so as in all respects to read as and conform to the language of section 1 of this act.
Sec. 3. Be it further enacted, that chapter 181 of the Acts of the Regular Session of the General Assembly of 1915, entitled 'A bill to be entitled an act to abolish the death penalty, except in cases of rape, and convicts serving life terms in state penitentiaries, as punishment for crime, and to substitute therefor the punishment of life imprisonment,' and section 5257 of the said Code of Tennessee, which section authorizes the court where any person is convicted of a capital offense, upon the Jury finding mitigating circumstances, to commute the punishment to imprisonment for life, and all laws in conflict with this act be, and the same are hereby repealed.
Sec. 4. Be it further enacted, that this act take effect from and after its passage, the public welfare requiring it.
Passed January 28, 1919."
In the late case of Gohlson v. State, 143 Tenn. 126, 223 S.W. 839, we considered this statute. While the charge in this case and the charge in the Gohlson Case are somewhat different, this difference has little bearing on the authority of the Gohlson Case. The question raised is one of the respective powers of the court and of the jury in the premises.
In Gohlson v. State, supra, where the jury returned a verdict of guilty of murder in the first degree and the trial judge sentenced the defendant to death, the judgment below was reversed. This court said, referring to chapter 5 of the Acts of 1919, speaking through Mr. Justice Hall:
"We think this language of the act clearly vests in the jury the exclusive power and authority to fix the punishment of defendants in cases where they have been convicted of murder in the first degree, and is mandatory."
An effort is made by the Attorney General to distinguish this case from the Gohlson Case, and we are asked, if there be no distinction between the two cases, to reconsider and modify our former holding. We find no distinction between the two cases that is of avail to the state, and upon a careful reexamination of the matter we are satisfied that the ruling in the Gohlson Case was sound and we must adhere thereto.
The contention of the state is that the law fixes the punishment for murder in the first degree, which is the death penalty, except in cases where the jury finds mitigating circumstances, and that therefore, when a simple verdict of guilty of murder in the first degree is returned by the jury, without a finding of mitigating circumstances, the death penalty follows by force of the law, and the act of the trial judge in imposing said penalty is but ministerial.
If we grant the premises of the foregoing contention, the conclusion would easily follow. Such formerly was the law, but the law has plainly been changed by chapter 5 of the Acts of 1919.
Section 4601 of the Code of 1858 provided that every person convicted of the crime of murder in the first degree should suffer death, and section 5257 of the Code of 1858 provided that the court might commute the punishment of any person convicted of a capital offense to life imprisonment where the jury stated in their verdict that they found mitigating circumstances.
Chapter 5 of the Acts of 1919, however, amended section 4601 of the Code of 1858 so as to make it in all respects read as and conform to section 1 of the act of 1919. Chapter 5 of ...
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