Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1861-08-23
SrNrrNcE a. nEAIH

Thos. W. Barnes, found guilty of the MUIR
der Of John Hsndrihan, was yesterday brought
before Judge Swayne to receive sentence. The
scene was a solemn one. The Judge addressed
the prisoner in moving tones, which drew tears
from The unhappy man, and from many Of the
spectators. Judge SwayEe, who exhibited
considerable emotion in bis address to the
prisoner, spoke as follows:
The Jury, rendering their verdict Of murder
in The first degree (Jhe punishment Of which is
dsath) stated in the verdict that they were Of
opinion that there were mitigating circum-
stance in the case. The efsct Of this state
meHt, HndsT the 5257th section CP the code, is
that 'the court may commute the punishment
from death to Imprisonment for life in the PEN
iteatiarY.o
This power of the court TO commute the
statutory punishment is not mandatory but
j scTetIonary, and is so evidenced, not only by
the context sections. but also bv the grade and
egseDCe o. the ]otense. The legislature sup
posed that even capital cases might arise, in
which it would be proper to commute the pun
ishDgnt. but was We. careful 70 commit them
10 the discretion o. the court only, and to its
Judgment Of the testimony after the finding Of
the jury.
Tois discretion, it is plain, in THE, and in all
other eases, "a here conferred by law, should
be exercised soundly. Individual predictions
or jnclina;ious Of the judge, or any other con-
slderatious outside Of he case as presented in
court, cannot and should not, in law OF con
science control bis determination. The obi
legations OF his oath and bis Official duty rest
az soiemHly upon him, in the exercise OF this
discretion, rs upon the consciences Of the iu-
~ in finding their verdict, a8d deVolve upon
hin even a higher responsibility than upon the
jury, inasmuch as, in order to change the pun
ishment justly and properly, be must not only
canvass the whole case himself, but then, also,
order the change OF it as fixed by statute.
Because the jury have stated there are mifi-
eating circumstances, does not OF itself relieve
the court from its responsibility and duty Of
exercising a sound discretion in changing the
punishment as Otherwise the legislature would
itseif have provided for the Jury to punish By
Imprisonment, or would have made it the per
empt0Jy duty Of the court 10 commute, when
ever there were such circ umstanees AND
mitigating circumstances may also be Of more
OF less materially and import.
lt is deVOlVed upon the court, then, 70 dete--
mine whether the punishment Of the defendant.
in this case, shall be coumuted. I have care
fully considered the subject, and, personally.
would have been glad, if the Jury bad found
1t consistent with their duty to spare ne this
high and solemn issue of life and death. Re-
rHlA8hFFlt " GIL sAc AHClluHLHOlS ana eVmD4
thles OF our nature, In rejecting urOu the
case, | have endeavOred ard desired to find a
reason why the court should change the effect
OF the verdict Of the jury. They have pro-
nouaced the offense to be murder in The first
degree +; and murder 10 the frs degree, under
our legislation on homicide, differing from the
comnon law, and made to favor the accused,
j. The highest grade OF crime and The darkest.
an The cool purpose, deii5eration, malice, and
generalization, sihgulariy and Greadfully con-
curing 10 constitute q e offense charged in the
indictment, are fully proved in this case, I'M
relieved BY passion and provocation 50 Of en-
furnished BY the in6Tmities Of cur nature in
mitigation Of crime.
III is yet not the severity Of punishment,b but toe
certainty, that deters from crime aud furnishes
protection against the l7wless. The enforce
ment OF the laws is no leas important and nee
essaTy than their suficiency. It matters little
that punisaments are prescribed, if offenders
may hope 10 escape than. even after their Of.
fense5 have been established under the merci-
fGl forms and bearings Of the law: and the
judge or jury that is the ageFt Of escape, in
any given case, from motives Of sympathy or
Otherwise, when the case is clear, becomes, so
fer, a party to like subsequent odenses. While
careful, 10 the last degree, that the Innocent
shall not suffer at he hands Of this court, |
shall be careful, alss, that the guilty, through
me, shall not 60 UNPUBLISHED. This [ owe,
from this responsible position, to the peace
and dignity Of the State, and TO my own con-
science.
am compelled, therefore. not 70 disturb the
legal effect Of the finding Of TIE Jury.
Thomas W. Barnes, have you ANYTHING to
say, Why The court should not pronounce upon
y0u the sentence Of the Law?
The prisoner, at the request Of the court,
arose and received standing the following SEN
tslce: