State ex rel. Myers v. Brown
| Decision Date | 08 November 1961 |
| Citation | 351 S.W.2d 385,13 McCanless 141,209 Tenn. 141 |
| Parties | , 209 Tenn. 141 STATE of Tennessee ex rel. Earl MYERS v. John F. BROWN, Sheriff of Jefferson County, Tennessee. |
| Court | Tennessee Supreme Court |
Howard W. Rhea, Sneedville, Edward F. Hurd, Newport, Chester S. Rainwater, Jr., Dandridge, for petitioner.
H. F. Swann, Dist. Atty. Gen., Dandridge, J. Howard Collett, Asst. Dist. Atty. Gen., Maynardville, G. Edward Friar, Knoxville, Thomas E. Fox, Asst. Atty. Gen., for respondent.
The relator Earl Myers filed his petition in the Circuit Court of Hancock County, Tennessee, seeking to secure his release from the custody of John F. Brown, Sheriff of Jefferson County, Tennessee, upon the theory that he was being illegally and unlawfully restrained and deprived of his liberty. The record discloses that the Sheriff of Jefferson County, Tennessee, has the relator in his custody for safekeeping under a mittimus issued by the court. The petitioner now seeks through the writ of habeas corpus to be released from confinement and set at liberty for the reasons that will be made to appear hereinafter. From the action of the trial court in sustaining the Writ the State appeals.
Earl Myers was tried along with others jointly indicted upon three indictments: the first indictment charges first degree murder of Lon Tyler; the second charges first degree murder of Alex Morris; and the third indictment charges an assault with intent to commit murder in the first degree upon the body of Verlin Maxey. Said offenses are said to have occurred in Hancock County, Tennessee, on April 22, 1961. All of the cases came on for trial in said County on September 18, 1961, and upon the completion of the proof on September 29, 1961, the jury retired to consider the guilt or innocence of all of the defendants after having been properly instructed by the trial judge.
According to the stipulation of facts in this case, the jury returned into open court at about 9:30 o'clock P.M. on September 29, 1961, when the court made the following inquiry:
'Gentlemen of the Jury, have you agreed on verdicts?
'The foreman answered: We have, Your Honor, please.
'The Court: What are your verdicts?
'The Foreman: We have them written down here, is it all right if we read them?
'The Court: Yes, any way you want to.
'The Court then made inquiry of the jury: What did you fix the punishment in these cases?
'The Foreman: Judge, we left that up to you, Your Honor.
The jury then retired and considered further of its verdict and upon being returned into court on the same evening they reported that they were unable to agree. The colloquy between the court and the foreman being as follows:
'Foreman: No, Sir, we cannot reach a verdict on that.
'The Court: Gentlemen, can you agree on the punishment in either of the three cases?
'Foreman: No, sir.
'The Court: Gentlemen of the Jury, I am going to have to let you go back and see if you can agree.'
The jury again retired and reported at a later date on the same evening, at which time the Foreman said that he thought the jury was hopelessly deadlocked. The court then inquired:
'Well, did you agree on the punishment in the felonious assault cases.
'Foreman: No, Your Honor.'
The court then ordered that the jury remain together during the night and court was adjourned until 9:00 A.M. on September 30, 1961. At this time the court made inquiry again of the jury, after they returned into open court, if verdicts had been agreed upon. The Foreman answered:
'The Court: By that, do you mean you think there is no chance for the jury to agree?
'Foreman: No, Sir, we absolutely don't think we can agree.
'The Court: On guilt or innocence or punishment either?
'Foreman: No, sir.
'The Court: Does that apply to the defendants who were acquitted?
'Foreman: That applies to everybody, Your Honor.'
The trial judge then sent the jury back to consider further and upon return to the court it again reported that it was unable to agree and the court said:
'Foreman: That's right.'
It was further stipulated that on Friday night, September 29, 1961, at about 9:30 o'clock P.M. when the jury reported and stated 'this jury finds Earl Myers, Dean Myers, George Myers and E. A. Myers not guilty' the trial judge entered upon the docket of the court a 'not guilty' verdict as to Earl Myers, the relator, and that on Saturday, September 30, 1961, and after the jury had again reported as above set forth, the trial judge erased the 'not guilty' verdict as to the relator, Earl Myers, and substituted 'mis-trial'.
It is agreed by the parties that the only question presented by this appeal from the action of the trial court in sustaining the petition for the writ of habeas corpus and discharging the relator from custody and setting him at liberty, is whether or not the first verdict announced by the jury and recorded on the judge's docket by the trial judge acquitting the relator, Earl Myers, of the criminal charges for which he was indicted and tried could be changed by the jury while it remained undischarged for the purpose of considering the punishment for the defendants that were found guilty by the jury.
It is the insistence of the relator, and so found by the trial court, that when the jury first announced it had agreed upon verdicts, and proceeded to return a verdict of 'not guilty' as to relator and each juror publicly affirming that verdict upon a poll by the trial judge that this was a legal and valid verdict acquitting the relator of all charges and that thereafter upon the jury being sent back to correct an alleged defective verdict as to other defendants it could not 'retract' its verdict of 'not guilty' as to the relator.
The six defendants, including relator, were put to trial on three separate indictments charging them jointly with two murders and felonious assault with intent to commit murder in the first degree. T.C.A. Sections 40-2523, 40-2524 provide for separate verdicts in the following language, to-wit:
The purpose of said statutes is to provide a method by which a jury considering cases of separate defendants may render an independent and separate verdict as to each defendant. The statute provides in express terms that if the jury cannot agree upon a verdict as to all (defendants), they may return a verdict as to those in regard to whom they agree, on which a judgment shall be entered (underscoring ours). The question then is whether or not the jury rendered a verdict in regard to the relator. The word 'verdict' is from the Latin veredictum meaning a true declaration. It is the formal and unanimous decision or finding made by a jury empanelled and sworn for the trial of a cause and reported to the court upon...
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