Sharp v. State

• Decision Date: 07 March 1974
• Citation: 513 S.W.2d 189
• Parties: Gary SHARP, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
• Court: Tennessee Court of Criminal Appeals

Page 189

513 S.W.2d 189

Gary SHARP, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.

Court of Criminal Appeals of Tennessee.

March 7, 1974.

Certiorari Denied by Supreme Court June 17, 1974.

Rehearing Denied July 15, 1974.

W. Henry Ogle, Sevierville, for plaintiff in error.

David M. Pack, Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, H. F. Swann, Dist. Atty. Gen., Dandridge, for defendant in error.

GALBREATH, Judge.

OPINION

Plaintiff in error, Gary Sharp, appeals from a conviction of second degree murder and the jury imposed sentence of from fifteen to twenty years in the penitentiary. His assignments of error are as follows:

1. The evidence is insufficient to support the verdict of the jury and is contrary to the weight of the evidence and preponderates in favor of the innocence of the accused.

2. The trial Court erred in charging the jury in accord with Chapter 192 of the Public Acts of 1973, since said act is unconstitutional.

3. The trial Court erred in instructing the jury in accord with Chapter 163 of the Public Acts of 1973 since said act is unconstitutional.

4. The trial Court erred in failing to grant a mistrial on the various occasions on which it was moved by the defense attorney.

Inasmuch as the jury had before it credible and corroborated testimony of witnesses who told them they saw the defendant walk up behind the victim, Edward Romines, grab him by the back of the head and split his throat open with a straight razor, the assignment of error challenging the sufficiency of the evidence is overruled for reasons exhaustively set out by the Supreme Court in such cases as McBee v. State, 213 Tenn. 15, 372 S.W.2d 173.

The record sheds little light on the reason for this senseless taking of a human life except to infer that the defendant at the time of the irrational act was under the influence of marijuana and beer that he had ingested earlier. However, all killings are presumed to be murder in the second degree, and the jury may infer malice from the use of a deadly weapon. See McClain v. State, 1 Tenn.Cr.App. 499, 445 S.W.2d 942.

Although as anticipated on behalf of appellant Chapter 192 of the Public Acts of 1973 has been declared unconstitutional (see State of Tennessee v. Hailey, Tenn., 505 S.W.2d 712, released February 4, 1974), this can have no bearing on the case sub judice since the subject matter of the Act was punishment for murder in the first degree. When the feared consequences of the complained of procedure do not arise, then the issue is moot. See Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797.

Also without merit is the complaint that by the enactment of Chapter 163 of the Public Acts of 1973 the legislature invaded the province of the judicial branch of government so as to render the Act unconstitutional. The subject Act codified as T.C.A. § 40--2707 provides:

'Whenever any person over eighteen (18) years of age is convicted of any felony or other crime and punishable by imprisonment in the penitentiary, with the punishment for said offense within minimum and maximum terms provided for by law, the jury in addition to finding the defendant guilty shall fix the minimum and maximum term of the convicted defendant provided that the minimum sentence so fixed shall not be increased to exceed more than twice the minimum sentence as provided by law or the minimum sentence provided by law plus one-half (1/2) the difference between the minimum and maximum sentence as provided by law, whichever is less. Its form of verdict shall be: 'We find the defendant guilty as charged in the indictment' or 'We find the defendant guilty of . . . (Whatever may be the offens charged), and fix his punishment at imprisonment in the penitentiary for not less than _ _ years nor more...