Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-02-06


his possession any gaming table or any
device whatever for the enticement Of
any person to play or gamble.
Section L. III declares it to be the duty
OF every judge, justice, sheriff and cons
stable to apprehend any person, upon
view or information, known to be guilty
Oh TINS ofense, and cause him to be CONS
United to Jail to wait his trial at the next
court having cOguizance of the offense of
gaming.
Section 1.722 makes it the duty of the
Judge, justice or constable to destroy the
gaming table, etc.
Strange as the provisions of this chapter
appear to be, can find no authority in
any section now in force for the commit
ment shown in this case. If on the ground
OF vagrancy the defendant is committed
for non-payment of fine which the
magistrate had no power or authority to
assess, as the writ fails to show that there
had been previous offence, the legal
| presumption IS that this was the first, in
which case it IS clear that the only power
the magistrate possessed was to require
sureties Of the defendant for his good
behavior, and in case of refusal, to commit
him to the Jail of the county for g period
OF five days. For the second offence, as
in section ], 7l2, he might be imprisoned
thirty days only, (but not fned) or until
the next term Of the Circuit or Criminal
Court, which, even upon conviction by
jury, has power to imprisOn only for
thirty days, not fifty, as in this writ, and
no power whatever to assess a fine,
The chapter on vagrancy in the Code
| OF Tennessee, so far as it goes to define
and punish gaming and keeping gaming
tables, ETC., as a subtantial olfense, If
properly charged, might be sufficient to
warrant the detention or Imprisonment Of
an offender but that portion which seeks
to make it criminal offense for a person
to be guilty Of HisbehaYior," or Of
having no apparent means Of subsist-
ence," or neglect of the defendant to
apply himself to some honest calling or
one who seeks to maintain himself by
gaming or other undue means" etc, in
wholly failing to define any act Of a crim>
inal character, and under which the most
innocent and blaneless might be arrested
and imprisoned, is not entitled to the
consideration Of any court, and can not be
recognized as any cause for either arrest
or Imprisonment. If party has violated
the laws against gaming he may be ar
rested and punished under those sections
prohibiting the same, when the deini>
tons Of the ofienses named are full and
clear, and proper punishment prescribed.
The third objection that the charge Of
carrying concealed weapons is no offense
against the law and cannot be punished
either by fine or Imprisonment, the
amendment Of the mittimus in inserting
carrying concealed weapons" instead of
concealed weapons, may be made with
the consent of the defendant, the State
resting upon that as a sufficient cause Of
detention.
The only authority for a prosecution
on a charge of this kind in this State is
found in section 4, TAG of the Code, which
declares that,
ANY person who carries under his
clothes, or concealed about his person, a
bowie knife, Arkansas tooth-pick, or any
other knife or weapon of like form, shape
or size, is guilty Of misdemeanor, and
upon conviction shall he fined not less
than two hundred dollars, nor more than
five hundred, and shall be imprisoned in
the county jail not less than three nor
more than six months"
In the chapter on small offenses, sec
ton 4, 994 Of the Code, that ..
"Any person brought before a Justice
Of the Peace for a misdemeanor, NAV
plead guilty, whereupon, the Justice shall
hear the evidence and fine the offender
according to the aggraystion Of the Of
tense, not less than two dollars nor more
than fifty dollars, together with all
costs"
= Section 5,00l provides that, if the of
tense merit fine exceeding $50, or inn
prisonment and fine ofany amount, or inn
prisonment oEly or if the offense is pun
ishable expressly by both fine and i'm
prisOnment, the Justice shall not render
judgment against the offender-under the
foregoing provisions, but shall bind the
party to appear at the next Circuit or
Criminal Court. .a ....
Section IA of the bill Of rights of the
constitution Of the State Of Tennessee
provides that no free man shall De put to
answer any criminal charge but by pre-
sentiment, indictment or impeachment.
From these provisions the following
propositions are established:
LIST. That Justice Of the Peace or
magistrate cannot enter fine against any
defendant unless he pleads guilty.
I'd. That a Justice Of the Peace or
magistrate cannot imprison a defendant
in any case unless he pleads guilty, ex-
cept in default of bail for his appearance
at court.
3. That even in cases where the de-
PENDANT pleads guilty, the magistrate CAM
not either fine or imprison for non pay
ment of the same, if it appears from the
evidence that the oifense merit q fine ex-
ceeding fifty dollars, or Imprisonment and
fine Of any amount, or imprisonment
| only, or if the OffeDse is punishable exN
pressly by both fine and Imprisonment,
but in such case it is his duty to bind the
party to appear at court, where only he
can be put to answer the charge with an
Indictment or present nent Of grand
jury.
As principle of law it is beyond ques-
ton that any judgment Of q Magistrate
by which a defendant is fined in any
amount, OF imprisoned, unless upon plea
of guilty, where the offense of which be
is so convicted is defined as an ofense
punishable by indictment or presentment,
is extra judicial and voidable, if not abso-
lutely void.
The offense of carrying concealed
weapons under the code is a INSIDE
meanor, punishable only by Indictment
or presentment, by fine Of Lot more than
fifty dollsrs; by both ine and inprisons
ment.
The authority claimed by the officer
for this writ is, that it is issued under
an ordinance of the Mayor and Board Of
Aldermen of the city Of MemphisyD
! do not deem it necessary even to ex-
anime the ordinance, but if the Mayor
and Board of Aldermen Of this city have
assumed to do what the Legislature has
never vet attempted-to deprive the citi>
zen of his constitutional right of trial by
Jury, upon indictment or presentment,
upon any criminal charge-it IS an as
sumption that the courts cannot sustain.
There are other objections to this
mittimus, but these are enough to deter
mine that it is wholly insufficient to de-
tain the defendant, and, indeed, have
no hesitation in pronouncing 1t void
upon its face so that any officer serving
it would be liable to prosecution for false
imprisonment. The defendant will be
discharged from custody.