State ex rel. Myers v. Brown

Decision Date08 November 1961
Citation351 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.
CourtTennessee 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.

WHITE, Justice.

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 Foreman: This jury finds on circumstantial evidence Carl Myers guilty of second degree murder of Lon Tyler. This jury finds on circumstantial evidence Carl Myers guilty of second degree murder of Alex Morris. This jury finds James Horton guilty of felonious assault on Verlin Maxey. This jury finds Carl Myers guilty of assault on Verlin Maxey. This jury finds Earl Myers, Dean Myers, George Myers and E. A. Myers not guilty.

'The Court: So say you all? If so, raise your right hand. (All jurors raised their right hand.)

'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 Court: The court has no authority to set a sentence in this kind of case. The court can set sentence only in misdemeanor cases. Gentlemen, it is your duty to fix the punishment in the bounds set out in the charge of the court in each of these cases. I will have to let you go back and see if you can agree on that.'

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:

'The Court: Gentlemen, have you now agreed on the punishment in each case? If so,----

'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:

'No, Your Honor. We are in worse shape than we were yesterday and they agree that they will withdraw any convictions or anything they said to you or anything that they had passed on and give it back to the court, and that goes for all of them.

'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:

'Now, gentlemen, I have to discharge you, for counsel, on, especially for the State, the defendants don't have to agree, but it is generally agreed that you can't agree. I want to say this to you, and we must enter a mistrial. Now, as I understand it, you have not agreed as to any defendant as to any charge, is that right?

'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:

'40-2523. Separate verdicts as to different defendants.--Upon an indictment against several defendants, any one or more may be convicted or acquitted.'

'40-2524. Disagreement as to part of defendants.--In an indictment against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they agree, on which a judgment shall be entered.'

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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22 cases
  • Ingram v. Earthman
    • United States
    • Tennessee Court of Appeals
    • October 21, 1998
    ...instructions are the jury's sole source of the legal principles used to guide their deliberations. See State ex rel. Myers v. Brown, 209 Tenn. 141, 148-49, 351 S.W.2d 385, 388 (1961); Grissom v. Metropolitan Gov't, 817 S.W.2d 679, 685 Trial courts have a duty to give substantially accurate ......
  • Henley v. Amecher
    • United States
    • Tennessee Court of Appeals
    • January 28, 2002
    ...are the sole source of the legal principles to be used by the jury to guide its deliberations. State ex rel. Myers v. Brown, 209 Tenn. 141, 148-49, 351 S.W.2d 385, 388 (1961); Grissom v. Metropolitan Gov't, 817 S.W.2d 679, 685 (Tenn. Ct. App. 1991). Thus, the soundness of every jury's verdi......
  • Ladd by Ladd v. Honda Motor Co., Ltd.
    • United States
    • Tennessee Court of Appeals
    • August 7, 1996
    ...the instructions are the sole source of the legal principles needed to guide the jury's deliberations, State ex rel. Myers v. Brown, 209 Tenn. 141, 148-49, 351 S.W.2d 385, 388 (1961), trial courts must give substantially accurate instructions concerning the law applicable to the matters at ......
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    ...issues of fact; and the judge, matters of law and all other questions (Whirley v. Whiteman, 38 Tenn. 610, 610-617; State ex rel. Myers v. Brown, Tenn., 351 S.W.2d 385, 388). Devices for separating law from fact were demurrer to the evidence (Hopkins v. Nashville, C. & St. L. Railroad, 96 Te......
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