Thompson v. State
| Decision Date | 09 June 1950 |
| Citation | 26 Beeler 492,230 S.W.2d 977,190 Tenn. 492 |
| Parties | , 190 Tenn. 492 THOMPSON v. STATE. |
| Court | Tennessee Supreme Court |
R. M. Murray, Huntingdon, for plaintiff in error.
Nat. Tipton, Assistant Attorney General, for the State.
This case affirmatively discloses that the defendant 'requested that his case be tried before the Court without the intervention of a jury' upon an indictment which charged him with the illegal possession of whiskey. The undisputed evidence is that the amount of whiskey involved is more than a quart. Hence, the minimum fine required by the statute is $100.00. Williams' Code, § 11221. Pursuant to this request the case was tried by the Trial Judge without a jury. Thompson was found guilty and in addition to a workhouse sentence the minimum fine of $100.00 allowed by statute was assessed by the Trial Judge.
The motion for a new trial did not assign as error the fact that the Judge rather than the jury assessed this fine of $100.00. Nor is it assigned as error upon this appeal by Thompson.
However, the brief submitted in behalf of the State calls this situation to the attention of the Court because of Section 14, Article 6 of our Constitution providing that:
'No fine shall be laid on any citizen of this State, that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers.'
This brief then discusses the previous holdings of this Court when confronted with a like situation and concludes with the opinion that the case should not be reversed because of the violation of this provision of the Constitution. The reason given is that the jury could not have assessed a fine of less than $100.00; therefore, that the error was not prejudicial.
In Johnson v. State, 152 Tenn. 184, 274 S.W. 12, the Trial Judge without a jury fixed the fine of the defendant at $250.00 after finding him guilty of possessing whiskey. Upon the appeal of that case this action of the Trial Judge was not assigned as error. Nevertheless, this Court felt that it should take cognizance of the matter and did so, reversing the case because of the violation of the aforementioned provision of the Constitution. That case calls attention to the fact that errors affecting constitutional rights call for a reversal and are not saved by Code, § 10654.
Under the authority of the Johnson case, supra, and on principle, it seems to be the duty of this Court to consider the effect of this action of the trial judge, notwithstanding the fact that it was in response to the defendant's request and is not assigned here as error.
In Metzner v. State, 128 Tenn. 45, 157 S.W. 69, 70, the judge without a jury found Metzner guilty of selling whiskey and imposed a fine of $400.00 in addition to a sentence. The judgment was reversed because:
'Power or jurisdiction to inflict a fine exceeding $50 having been by law conferred upon a jury alone, and withheld from the judges, no waiver or consent of parties can be invoked to endow a judge with this jurisdiction.'
The minimum fine which could have been given in that case was $100.00.
In State v. Green, 129 Tenn. 619, 167 S.W. 867, 868, the defendant after trial by the judge without a jury was convicted of transporting whiskey and assessed with a fine of $100.00. That was the minimum at which the fine could be fixed under the law by a Jury. This Court held:
'While it was error for the court to assess the fine without submitting the question of its amount to the jury, it is not reversible error, because he exercised his assumed power for the benefit of the plaintiff in error.'
This holding in the Green case was said by Gass v. State, 130 Tenn. 581, 599, 172 S.W. 305, 310, to be 'sound when confined to its facts, but its doctrine will not be extended'.
In Johnson v. State, 152 Tenn. 184, 274 S.W. 12, 13, the judge without a jury, after finding the defendant guilty of either transporting or possessing whiskey, assessed a fine of $250.00 in addition to a workhouse sentence. Although this was not assigned as error as heretofore noted, this Court took cognizance of it of its own motion, and set aside the judgment because the fine was assessed by the judge rather than the jury....
To continue reading
Request your trial
-
State v. Martin
...construction of this constitutional provision has been addressed previously by this Court in at least four cases. Thompson v. State, 190 Tenn. 492, 230 S.W.2d 977 (1950); Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927); Upchurch v. State, 153 Tenn. 198, 281 S.W. 462 (1926); Johnson v. S......
-
State v. Durso
...power" to fix a fine of one hundred dollars, the minimum under the statute there involved. To the same effect see Thompson v. State, 190 Tenn. 492, 230 S.W.2d 977 (1950), where a fine of one hundred dollars was imposed by the trial judge, the defendant having expressly requested that the ca......
-
State v. Moore
...impose a fine of more than $50 'even by consent of the accused'. Upchurch v. State, 153 Tenn. 198, 281 S.W. 462, 464; Thompson v. State, 190 Tenn. 492, 230 S.W.2d 977. Hence, the necessity in this case of impaneling a jury to fix the fine within the amounts required by the statute, in the e......