State v. Green

• Court: Tennessee Supreme Court
• Writing for the Court: NELSON
• Citation: State v. Green, 50 Tenn. 131 (Tenn. 1871)
• Decision Date: 31 December 1871
• Parties: The State v. William Green.

50 Tenn. 131

The State

v.William Green.

Supreme Court of Tennessee.

December Term, 1871.

FROM WILSON.

Criminal Court. WM. H. WILLIAMSON, J., presiding.

Attorney General Heiskell, for the State, insisted that the word “or” was not in this case an alternative conjunction, expressive of one of two things, but of two or more descriptions of the same thing. The statement in the indictment is, that the defendant did carry a belt or pocket pistol, or revolver. These may all be different descriptions of the same revolver, which may be at the same time, a belt pistol or a pocket pistol. A heavy stick or bludgeon, is a double description.

It may mean, however, that he carried one of two kinds of pistol, and it is said this is uncertainty. It is admitted that a charge of carrying a belt pistol, and a pocket pistol and a revolver, would be certain. Practically, the alternative is the most certain, for that binds the State to one of two things. The conjunctive has the form of certainty, but none of the reality. The State may, under it, prove: 1st, a belt pistol; 2d, a pocket pistol; 3d, a revolver; 4th, two pistols, belt and pocket; 5th, two, belt and revolver; 6th, two, pocket and revolver; 7th, three pistols, belt, pocket and revolver. This is ““certainty in law,” which leaves the prisoner uncertain in fact which of seven alternatives is to be proved. The other is uncertainty, which leaves it at least certain that one of three things is to be proved. In civil pleading, you may by the same process, leave it utterly doubtful which of a million of trees a defendant cut, and yet you have legal certainty, because you falsely state that he cut them all; but if you state that he cut one of two certain trees, the uncertainty is too great to be tolerated. This false and absurd rule deserves to be discarded. If an alternative is allowed in fact, let it be done avowedly, not under cover of a lie. If a witness declares that he saw the defendant with a pistol, but did not see it well enough to distinguish which kind, that is sufficient certainty of proof, but the certainty required in pleading would require him to swear that it was all three.

The Code allows the use of ordinary and concise language: 5114. Such degree of certainty as shall enable the court to pronounce judgment upon convictions: 5117. When the common law prescribes particular and technical language, it is sufficient to describe the offense according to the general rules laid down in this chapter: 5120. The means may be charged in the alternative: 5121.

J. W. Phillips, for the defendant, cited Whiteside v. State, 4 Cold., 182;State v. Ailey, 50 T enn. 8; 1 Bishop Cr. Law, sec. 274, 803; Archb. Cr. Pr. and Pl., p. 91, m. n. 1; Ib., 88, m. n. 1; Peek v. State, 2 Hum., 84; and urged the Court not to tolerate laxity in pleading.

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

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