Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1868-10-07
SUPREME COURT OPINION.
'AsnvILrE TEssEssEE DEcEMBER TERM, 1867
GEORGE KERN 3. THE STATE.

The plaintiff in error, frs man Of color was indcle
in The Circuit Court Of Franklin county, its Noyembe
term 1865, for the murder Of Gilderoy Horton A
the March rm 1867, of said court, no was arragned
plead not guilty" was tried aud convicted Of voluntar1
manslaughter. Motions fer trial and in arrest
Judgment made and overTuled and the plaintiff il
error was by the Judgment Of the court sentenced to i'm
Pri onment at hard labor IN the pcnentiary for tn,
term Of three years, from which Judgment Of the court hC
has appealed to this court.
Tho proof shows that the plaintiff in error, while
slave in 1861 upon discovering the deceased who wa
also slave in bed with the wife of the plaintiff in error
inflicted upon the deceased wound of which he shortly
thereafter died
Vasious questions have been raised in areument but
the main QUESTION in the past, and the one upon which
we the decision Of the case is hs Can the plain
til in error now fr man, be punished for tho crime
Of mansla1glter committed while he was a slave And
we think, most clearly, according 10 the PRINCIPLES an
nouneed by this court in the case Of Davidson VS. the
State I'd Coldwe 1884, and OF Brethcrs vs. the State I'd
COdwell, 20i and Of Wharton We. the State in manu-
script and decided at the present ten Of the county,
and authorities ctod he cannot.
By the code certain crimes when committed by slaves
declared DO capita and punished with DEATH BIZ
hanging. Aso certain other acts when done by slaves
declared to be oenses the punishment Of which is
prescribed But the crime Of nanslaughter Is not
meraed n either Of these classes. Section 629 prov
des that the circuit and criminal shall have ex-
elusive jurisdiction Of all capital eenscs committed by
slaves The next ding section declares all other
ofcnses committed by slaves may be tiled by a single
Justice Of the Peaec and By the next succeeding sec
ton il is declared eve indictment against slave f
murder shall be held to include charge for manslaught
er and the circuit and criminal courts shall have juris
dicon in the trial Of slaves charged with mansaughter
This section conferred upon the circuit criminal
only the Jurisdiction try the slave whilst the jurisdic
to to punish conferred by section 1924 the prOvis
ions of which are as follows All ether oenses com
mtcd by slaves shall be punishable at the discretion Of
the tribunal trying the offender but not with any pun
ishment extending to life limb" At the time Of the
commission Of this oenso this was the only statute de-
tbo of ffo
ing any penalty for the ofense when committed by
slave.
Section 1904 provides that whoever is convicted Of
the crime Of voluntary mansiaughi shall undergo con-
fnement ia the pontentary not less than two
than years. This section had reference only TO the
punishment be inflicted upon free persons convicted of
the crime cf voluntary manslaughteT, and tad refer
to the punishment Of slaves convicted of the
ofense. f
Although the letter Of the statu comforting upon the
tribunal trying the same jurisdiction to punish the Of
fender at its discretion, may have authorized the mprs
onment Of slave at hard labor in the pen Dary, such
mode Of punishment in accordance with the spir
it or policy Of the law f it cord be said hat
fncment Of slave at hard labor any punishment
whatever But bc that it may, the statute prescribed
one mode OF punishment for free person when guilty of
voluntary mansaught5r, and provided that slave for
the oense, might be punished in any other and
different mode at the discretion of the tribunal trying
the offender and IN the exercise Of this discretion the
punishment inflicted upon slave may have greater
Or less than that inflicted upon fr person for the
sane ofTense. When tho slave became a freeman he
could not be punished as a slave for ofense commit
I'd by him while slave, consequently the provisions of
the slave code providing for the punishment Of slaves
was entirely repealed by the abolition of slavery because
hero therea nothing for the statute to operate
upon, there are no slaves to punish I'D. a. tl r-
For these reasons, to say nothing Of the effect Of the
act of the Legislature of the Sat3 Of the act Of
Congress, known the civ Il rights bi touching tic
and Of the punishment Of color the refusal
Of the court below to grant trial erroneous.
Had the jury by their verdict aseortaned the fact It
appears in proof that the plaintiff in was slave
II the time Of the commission of the crme the judgment
upon the verdict would be arrested and the prisoner dis
charged but in the absence Of such finding the judgment
will DO reversed and the cause remanded, when a
trial can be had and this fact together with the guilt
OF innocence Of the accused asccrained by the jury
HAWKINS, Judge.