Turner v. State

• Decision Date: 31 December 1871
• Parties: Green Turner v. The State.
• Court: Tennessee Supreme Court

50 Tenn. 452

Green Turner

v.The State.

Supreme Court of Tennessee.

December Term, 1871.

FROM GILES.

Circuit Court, August Term, 1871, WM. P. MARTIN, J. presiding.

THOS. M. JONES, for the prisoner.

Attorney General HEISKELL, for the State.

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

The plaintiff in error was convicted at the July Term, 1871, of the Circuit Court of Giles county, of stealing a mule.

Motions for a new trial and in arrest of judgment were severally made and overruled; and the court proceeded to pronounce the judgment of death upon the defendant, from which he has appealed in error to this court.

The indictment charges that Green Turner, on the 5th day of September, 1870, in the county of Giles, aforesaid, feloniously did steal, take, and carry away, one bay mare mule, of the value, &c.

For the plaintiff in error, it is insisted that the judgment should be reversed, because the jury in their verdict did not find what punishment the defendant below should undergo, for the offense of which they convicted him; and the case of Kirby v. The State, 7 Yer., 259, is cited, as sustaining this proposition.

There is no analogy between that case and this; and the reasons that required in that case that the jury should find more than a simple verdict of guilty as charged in the indictment do not exist in this. That was an indictment for murder, which, under our statutes, consists of two degrees, murder in the first degree, and murder in the second degree, and the punishment in the one case is different from the punishment in the other, and it is made by statute the duty of the jury to ascertain in their verdict whether the offense charged is murder in the first or second degree.

By the Act of 17th May, 1865, it is provided “that whoever shall feloniously take or steal any horse, mule, or ass, shall, on conviction thereof, suffer death by hanging: Provided, the jury before whom the offense is tried shall, if they think proper, commute the punishment to imprisonment in the penitentiary for a period of not less than ten, nor more than twenty-one years.”

The law annexes the punishment of death by hanging to the offense of stealing a horse, mule or ass, but the jury may, if they think proper, commute the punishment. If in their verdict they do not exercise thei discretion in the commutation of the punishment, it of course stands as prescribed by the Act, a conviction of an offense punishable with death, to be enforced by the judgment of the court.

There was, therefore, no error in the verdict of the jury, or judgment of the court, for the reason assigned in the exception just considered.

The jury manifestly, purposely abstained from the commutation of the punishment provided by the statute, as they were instructed in the charge of the judge that they had the right to commute the punishment as provided in the statute, which he read to them; and he further told them that if they found the prisoner guilty, as charged in the indictment, without saying more, the legal effect of their verdict was, that the defendant would be hung.

Another objection is taken to the proceedings in the court below, that the court in his charge read the statute upon which the indictment was found, the record reciting the fact that he read it, and showing by reference to the power of the jury to commute the punishment, and the legal effect of the simple finding of guilty as charged, &c. What statute was read? We do not think there was such error in this to authorize a reversal. No error is affirmatively shown, and it is well settled by numerous adjudications, that this court will not reverse, unless it is shown affirmatively that error has been committed. While we can not reverse for this...