State v. Ailey

• Decision Date: 30 September 1870
• Citation: 50 Tenn. 8
• Parties: The State v. Arnold Ailey.
• Court: Tennessee Supreme Court

50 Tenn. 8

The State

v.Arnold Ailey.

Supreme Court of Tennessee.

September Term, 1870.

FROM JEFFERSON.

From the Circuit Court. J. P. SWANN, J., presiding, on motion, quashed the indictment, and the State appealed.

Attorney General HEISKELL, for the State.

J. R. COCKE, for Defendant.

NELSON, J., delivered the opinion of the Court.

The charging part of the indictment in this case is, that the defendant, on &c., “unlawfully, maliciously and feloniously, did slit, cut off and bite off, the ear of John Tarwater, whereby the said John Tarwater is maimed and disfigured, &c.,” and it is insisted for defendant, that the indictment is bad, because it charges two or more distinct offenses in one count. It is provided, among other things, in the Code, 4606, “that no person shall unlawfully and maliciously slit, cut off or bite off the nose, ear or lip of another, or any part of either of them, whereby the person is maimed or disfigured;” and it is argued for the defendant, that the three offenses of slitting, cutting off, and biting off, the nose, lip or ear of another, are embraced in the statute, and can not be included in one count of the same indictment. If this were a valid objection at common law, it was probably the intention of the Legislature to guard against it, in the Code, 5121, which provides that “an offense may be charged in an indictment in different forms, so as to meet the evidence in the case; and where it may have been committed by different means, the means may be alleged in the same count in the alternative.

While each of the acts of slitting, cutting off, and biting off, may be committed separately, and be indictable, we can not say that they may not be committed as parts of the same transaction, so as to constitute one offense, nor that, if they are jointly charged, the proof of either would not be sufficient to support the indictment. The defendant can not be embarrassed in his defense, nor could the Court be at a loss to pronounce judgment, as where felonies of a different nature and punishable in a different manner, or distinct felonies and misdemeanors, are embraced in the same indictment. In Wharton's Cr. Law, 2d ed., 141, it is said: “Where a statute * * * makes two or more distinct acts connected with the same transaction, indictable, each one of which may be considered as representing a stage in the same offense, it has, in many cases, been ruled that they may be coupled in one count. Thus, setting up a gaming...