Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-06-29
SUPREME COURT DECISIONS.

ISUPKEilE CUUkf UEClSLUNS,
Nashville, December Term, 1869
Thomas HI. 'Coidweil, Attorney
General and Reporter.
zsok Boyd vs.. The Stste.
At the March term, 1869, of the
Criminal Court for Davidson county, an
Indictment was found against lack Boyd
for murder. The Indictment contained
two. counts-the first count charging the
killing of some William -, man of
color" and the second charging the kill
ing of man of color to the grand jurors
unknown.
The offence is charged to have been
committed ON or about the 10th Septem-
Der, 1865.
To this Indictment, the defendant
pleaded not guilty; and upon trial, the
jury found him guilty of murder in the
first degree, with mitigating circumstances,
and he was sentenced to imprisonment for
| life. The defendant moved for new
trial, which being refused, he appealed in
error TO this court. s
The homicide is proved to have been
committed in September, 1865. 1t is
now claimed for the prisoner, that since
the act of the Legislature passed May the
Goth, 1866, Il regard to persons of color,
there has been no law in force in this
State under which the defendant could be
punished for this offense, if proved to be
guilty. The defendant is man of color
and is charged as such in the Indictment,
and was free man in the month of Sep.
TENDER, 1865.
The provisions of the law applicable to
this case, at the time the homicide in
question was committed, are contained in
the Code, and are as follows:
Sec. 4, 597. '1f any person of sound
memory and discretion unlawfully kill
any reasonable creature in being, and I'M
der the peace of the State, with malice
aforethought, either express or i'm
piled, such person shall be guilty of muir
der"
Sec. 1868 defines the offense of muir
der in the first degree, and section 4, 500
declares that all other kinds of murder
shall be deemed murder in the second de-
gree.
Sections LOCI and 4, COZ declare that the
punishment of murder in the first degree
shall be death by hanging, and that of
murder in the second degree shall be i'm
prisonment in the Penitentiary.
BY section 3, 257 where any person is
convicted of capital offense, the court
may, upon the finding of the jury that
there are mitigating circumstances in the
case, commune the punishment TO i'm
prisonment for life.
By sections 1928 and 2,725, the crime
of murder without reference to its degree,
rape upon free white woman, and GER
tain other offenses, were declared to be
capital offenses, when committed by
slaves or by free persons of color, and to
be punishable with death by hanging.
Thus the law stood at the time when
this homicide was committed.
On the Goth May, 1856, the Legislature
passed an act, by section of which it
was enacted that persons of color shall
have the right to make and enforce con-
tracts, to sue and be sued, to be parties
and give evidence, to inherit, and
to have full and equsl benefits of all
laws and proceedings fer the security of
persons and estates, and "shall not be
subject to any other or different punish
ment, pains, or penalties, for the COM
mission of any act or offence, than such
as are prescribed for white persons COM
hitting like acts or offences. ""
By sec. of the act it was declared that
call acts, or parts of acts and laws, in
consistent herewith are hereby repealed"
This act contained no reservation of the
right to prosecute and punish offences al
ready committed.
The argument now made for the de
PENDANT is, that sections 2, 625 and 2, 725 of
the code, which declare that murder by q
person of color shall be punished CAPT
tally, being inconsistent with the act of
1866, which declares that such murder
shall be punished only in manner pre-
scribed in case O. a murder committed by
q white person, are repealed by that act
that the defendant cannot be punished I'M
der sections 4, 601-2 of the code, because
they apply only to cases of murder COM
mitted by white persons; nor under sec
tons 9, 625 and 2,725 of the code, because
they are repealed by the act of 1666-nor
under the act of 1856, because it was not
in force at the time the offence was COM
mittcd, and cannot now be applied to that
offence.
In regard to the effect of change in
the law of the penalty upon offences COM
mittod before such change, the dec isions
heretofore made in this State have adopted
g different rule from that recognized in
many decisions elsewhere; see cases cited
in Cool. Court Lin. 266 ct seq.
The effect to be given to the act of May,
1866, was considered by this court in the
caseof Joe Wharton vs.. The State, B Cold.
/. In that case the prisoner was Indicted
for rape committed upon free white
woman, while he was q slave in 1859, the
penalty for the offence, under code sec.
2,G25, being death. Several trials were
had. and the case continued in court till
after the abolition of slavery, and after
the passage of the act of 1865; and the
prisoner being finally convicted and sen
fenced to death, brought the case into
this court in 1857. Rape committed by
q white person was punishable only by
Imprisonment for term of years.
Theeourt held that section 2, 625 of the
code, which annexes the penalty of death
to the crime of rape committed by a
colored man upon a free white woman,
was inconsistent with the provisions of
the act of 1866, and was there
fore as to this offence repealed
by the fourteenth section OF that
act, that there was no law then in exist
ence under which the prisoner could be