Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-02-13

Reported for the Union and Dispatch, by 5. J.
Henderson. Attorney at Law.
IT is well settled in this country that the
Jury are the Judges Of both the law and the
facts in cases Of felony"
The act ofthe Legislature Of Tennessee, passed
Merch IS. 1850, was intended 10 apply 10 cases
IN which persons had been convicted OF a
felony. the punishment for which was conGne-
ment IA II peniteHnary, and that too. with
out reference 20 the grade u the ofense, or
the length Of time for which the accused was
subject 10 imprisonment in the penitentiary.
The stRtnts in its terms applies 20 all ielOnies
punishable by Imprisonment in the peniten-
tiary. The statute 10 its terms applies TO all
teOnies punishable BY imprisonment IN the
pententiary it has made no exception and
this court can make none
Ssuk Cross os. the State.
The plaintiff in error was indicted in the
Circuit Court of Montgomery county for
stealing a watch OF the value of forty dollars.
He was arraigned, plead "not guilty. was
put upon his trial, convicted and sentenced
toundergo imprisonment in the penitentiary
of the State for the period Of three years.
A motion for new trial having been over
ruled, he has appealed in error TO this
court
Before the trial. Rice, the prosecutor, stat
ed that a watch had been lost from the house
Of Mrs. King He suspected plaintiff iu
error had stolen ii, and in company with
the City Marshal Of GAINESVILLE, and a po-
liceman, went 10 arrest him. They found
him at his boarding honse. The witness
accused him OF stealing the watch. lie
denied il. Witness then stated to the ac-
cused that he (the wiiness) knew he the
accusedj had stolen the watch, could prove
it, etc. and that he had better confess il at
once. That il he would confess 30 The
stealing and deliver up the watch, he
should not be prosecuted for the oflense.
The accused then stated that the witness
had owed him, and still owed him, some
money, and would not pay il, and that be
Heying the watch 90 belong TO witness, he
had taken il with the Intention of keeping
it until he got has money from the witness,
and OF returning IL when the money was
paid After making this explanation the |
accused went 10 the house and told a wo- |
man who was there 10 90 to the trunk and |
get that watch, aud said "the'Ve got me-"
Thereupon the woman opened the trunk /
aud took ont a watch which was delivered /
10 the witness, who identified il as the watch |
Of Mrs. King which had been missing. |
The witness stated further, that when the /
watch was taken from him II had crystal /
ia II, but there was no crystal in It when i
IL was taken frou the trunk and delivered |
10 him. The accused was then taken into |
custody and committed 10 Jail. Witness also |
stated that he did owe the accused two dol |
lars and fifty cents.
Rawls the only remaining witness who |
was examined in the cause, proved sub |
stantially the same facts as those proven by /
Rice, end the additional fact that broken /
pieces of a watch crystal were found in the /
pocket OF the accused after he was arrested. |
80, il will be observed, the accused was /
convicted upon testimony, the principal 1
portion Of which was clearly incompetent, |
according 10 the well settled rules Of evil /
dence touching confessions, but which was
permitted TO gotothe Jury without objection. |
Whether the admission, by the court, Of |
incompetent testimony against the accused l
in cases Of the grade Of larceny is error, for /
which this court would reverse the iudg- |
ment Of the Circuit Court unless such in |
competent testimony had been objected 10 |
AT the trial, is a question which It is not |
necessary TO determine in this case.
In the argument Of the cause before |
the Jury, the counsel for the accused adj |
miited the taking of the watch, but insisted /
that under the circumstances of the case /
the ofense did not merit heavy penalty, |
aud desired and offered TO read 20 the Jury /
the act Of the Legislature of Tennessee
passed March 10, 1860, the provisions OF
which are "a follow s, to-wit:
That in no case shall any person con
yicted of a felony be confined for a les7
period than twelve months; PrOrided, That
whenever, in he opinion Of the jury in
any case, the ofiense merits a less punish
ment than twelve months in the peniten-
tiary, that then, in such case, the jury may
punish 10y confinement in the county Jail
for any period of lime short OF twelve
mouths The court refused TO permit the
counsel cor the accused to read the act TO
the Jury. This, we think, was most clearly
erroneous. 1t is well settled in this c0un-
try that the jury are the Judges OF both the
law aud the facts in the cases of felony;
and whilst the Circuit Judge not only had
the right 30 have instructed the jury,
the statute referred 20 had no appl- |
cation 20 the case under considera-
ton, bat such would have been has duty.
Entertaining the opinion that Il had none,
bat certainly the counsel had the right TO
read the statute TO the jury and comment
upon it FOR the purpose Of informing them
who we're the Judges of the law what the
iaw really wss, and showing liz applica-
bility 10 the fscts of the case under consid-
Grafton. The statute itself was a witness
before the inry as 10 what the law was.
The counsel for the aecuped asked the court
10 Instruct the Jury that IL they should 6nd
the sccused guilty, and should be OF me
opinion that the otense meriied less pun
ishment than imprisonment in the pen-
tentiary for twelve months, then, in that
case, they might punish by Imprisonment
ia the co=nty Jail Cor any period short OF
twelve months. The court refused the in
atFuctions asked for, and told the jury that
the statute referred TO did not apply 20 the
case. We are Of the opinion, upon an ex-
animation OF the statute, that the action of
the court in refusing the instructions asked
for is erroneous. IL has been argued, aud
With some plsusibility, that the provisions
Of this statute spply only 10 thai class Of EEL
onies for the commission of which, under
previous statutes, the guilty party was sub
ect TO Imprisonment in the penitentiary
for the period of twelve months, and that
they did not apply % ihis case. because the
proof showed the ofense was grand larceny,
The punishment for which, under former
statntes. was Imprisonment ia the peniten-
tiary Cor a period not less than three nor
more than ten years. Now If We bat puF
sue this line Of argument, admitting the
premises, IL will certainly involve the court
below in error, for Il comedies the proyis-
ions of the statute apply ia cases OF petit
larceny. Whether the accused had been
guilty of grand or petit larceny, as defined
BY our statutes, VAS question TO be deter
mined by the jury, and the court had no
right 10 determine in advance Of the YER
DICT Of the jury, thai the ofIense was grand
larceny, and therefore the statute did not
apply.
BIT We do moi think the construction
sought to be given of this statute by the AT
torney General can be sustained without