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


As to the offence for which Joe Whar-
ton was indicted, the act of 1865 operated
as a total abolition Of the penalty pro-
ylded by the former law, and the snbsti-
tuition of another punishment, totally diff
ferent in its character. The question is
presented il the case now before US in
another phase. ~ tA
The crime of murder was first de-
clared TO consist of two degrees in this
State by the act Of 1929, CHI. %. Slaves
were expressly excepted from the opera
ton of that act. .
And it was held under that act that
murder committed by q slave stood as at
common law, and had no degrees. Free
negroes, however, were not excepted from
the operation of the act and the Code
cont>ins no provisions excepting either
slaves or free negroes from the operation
OF the section which declares that the
crime of murder shall consist of two de-
grees. s-i
Under the Code and prior to the act of
1856, the crime of murder committed by
a free person of color, must be held to
have been divisibla into, the first and
second degrees, though as both degrees
were punished eapitally, the distinction
was not then of practical importance.
By section B, 257 of the Code, where
any person is convicted of q capital
offense, and the jury who convicted him
state in their verdict that they are of
opinion that there are mitigating circum-
stances in the case, the court NAV com.
mute the punishment from death to i'm
prisonment for life in the penitentiary.
No exception is made in regard to this
provision against free persons of color,
and no such exception was made in the
act of 1888, chapter 80, from which this
provision was taken; and the defendant in
this case was undoubtedly entitled to
the benefit of it, prior to the act of 1866.
The law in force at the time of COM
mission of the homicide involved in this
case, then declared that the present de-
PENDANT, if guilty of murder either in the
first or in the second degree,
should suffer death by hanging;
provided that the court upon a
verdict of mitigating circumstances by
the jury might commute the punishment
to imprisonment for life9
How did the act of 1866 change the
relation of the defendant in this case to
the law2
1t declared in effect that the defendant
If found guilty of the crime of murder
in the first degree should suffer death by
hanging; provided, that the court upon
the recommendation of the Jury might
commute REIMBURSEMENT Imprisonment
for life, andE found guilty of murder in
the second degree should be punished by |
imprisonment for term of years.
1t is obvious, that for the offence of |
murder in the second degree, the former |
penalty is abolished, and totally differ |
ent one substituted. But for The offence |
of Durder in the first degree, of which |
the defendant has been convicted, no new /
or different punishment has been declared /
no new grade of homicide has been
created since his offence was COM
mitted, and his punishment has been |
commutcd under the same law under
which it might have been commuted had
the act of 1866 not been passed. |
The Code is repealed by the ctof 1868
only in the particular respect, and to the
extent, that it conflicts with that act.
We do no: think that the defendant in
this case is by the operation of the act
OF 1865 relieved of the penalty sdjudged
against him.. ....''-
1t is objected to the Indictment in this
case, that the first court charges the
defendant with killing "one William,
man of colOr,n without setting out his
There is nothing in this OBJ
lection.
We cannot judicislly know that man
must of necessity have two names, parti-
,ularly in view of the fact of every day
that mauy'persons of color,
lever had or acquired any surname.
There IS no evidence in the record that
he deceased had any name other than
William, and VIC cannot see that any
greater certainty in the designation of the
deceased was possible: l Archb. Grim.
Jaw, 81 and note.
1t is also objected that the Indictment
s defective, for the reason that it charges
n the first count the killing of q person
famed William, and in the second count
he killing of person unknown, from
which it would appear that two distinct
murders are charged in the same indict
nent.
This constitutes no defect in the indict-
nent-1 Archb. Or. Pr. so, 81, and note.
Whether there are more offences than one |
eally meant to be alleged against the de-
endant, or not in theory of law, each
cunt is for a separate crime, and there
re as many distinct crimes set out as
hore are counts Bish. CT. Proceed.
1877. If it appear that the offences
harged in the different counts are in fact
listinct acts of crime committed at differ.
mt times, the court may, in its discretion,
or the purpose of preventing the pris-
ner from being prejudiced or embar-
assed in his defence, direct the prosecu-
or to elect which count he will proceed |
pon. But where the offences charged
re of the same nature and grade, and
equire the same judgment and punish
lcnt, an objection on account of such
oinder cannot be raised for the first time
fter verdict, by motion in arrest of
Dish. Or. Proceed. SS197 -204;
Archb. Or. Pr. 95 and note; Wright vs..
he State, Hum. 1874; Cash VS.. The |
tate, 10 Hum. III; Ayrs vs.. The State,
Cold. 90.
The evidence upon which the verdict is
ased is circnmstantial. We do not deem
hat it would be particularly interestingor
roftable to incorporate q detailed state
lent of the evidence in this opinion, but
re think it amply sufficient TO justify the
nding of the jury, and the judgment of
ne court below must be affirmed
GEO. ANDREWS, Judge.
| true copy: J. &. FRAZER, Clerk.
Time Tests the Merits of all Things