Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-23
A true copy.
Test ]. F. DEADERICK, Clerk.
No.4o.

No. 49,
Ryburn Freeman (colored) VS.. the State.
The placing OF an obstruction upon railroad
track whereby the engine or cars are thrown
OF. il death ensue cannot be proceeded against
by Indictment for murder but the proceeding
must be for the specific offence as defined in
1.-THE act were done with q view to kill a par
ticular Individual, and he was SO killed. it
seems that this would be murder in the first
degree, and might be proceeded upon as such.
A verdict against defendant indicted, as an
accessory TO q murder, that he is guilty of
murder, is not responsive to the charge,
and is bad.
From the Criminal Court of Greene
county. -.s. .-
A. w. Howard, j. presiding.
The defendant, at the November term,
1869, was convicted of murder in the
first degree and sent to the penitentiary.
On presentation to this court, on a former
day of this term, of the record, and on
motion of Mr.. Ingersoll, counsel for the
prisoner, writ of error was awarded AMI
the Sheriff of Knox county wss directed
to proceed to the penitentiary and de-
msnd and receive the prisoner from the
keeper of the penltentisry, to whom also
a mandate issued, requiring him to deliver
SAID prisoner to the Sheriff of Knox
county, which was done and the prisoner
brought into court, on Monday, Sept. 26,
1870. -.
Mr.. Ingersoll for plaintiff in error.
Attorney General for the State.
OPINION.
In this case the plaintiff in error was
jointly indicted, as accessory before the
fact, with one Charles Smith, (cold his
principal, who was charged in the indict-
ment, with murder in the first degree.
The offence of Smith, charged in the
Indictment, consisted in placing certain
obstruction on the E. Tenn. & Va. Rail-
road, nesr Blue Springs, which threw the
engine off the track, and, by the escap-
ing steam, one Thomas Carlton, fire.
man on the engine, was so badly scalded
that he died of his injuries nine days
after.
Smith was first tried and convicted of
murder in the first degree, with ''miti-
eating circumstances
The defendant was then put upon his
trial in the, same Indictment, in which,
after charging Charles Smith with put
ting the obstruction on the track, il pro-
ceeds to charge that 'ERyburn Freeman,
colored, late of said county, lsbored, be-
fore the said murder in the first degree
was committed, in manner and form
aforesaid, to wit: on the 18th day of
March, A. d. 1869, at, to-wit, IN the
county aforesaid, did feloniously and ma
lieiously move, incite, counsel, hire, COM
mand and procure the said Charles Smith,
the said felony, in manner snd form afore-
said, to do and commit, etc. =
Upon this charge in the indictment the
defendant was put upon his trial and the
verdict OF the jury was "that they fin !
the defendant guilty of murder in the first
degree, with slight mitigating circum-
stances" After rule for new trial was
entered and discharged, and reasons in ar
rest of judgment filed and overruled, the
court proceeded TO pronounce judgment of
confinement in the penitentiary for life,
against the prisoner.
The case is brought here by writ of er-
Tor for revision, and various errors are
assigned upon the record.
First, it is insisted by counsel for the
prisoner that the verdict is not responsive
TO the charge contained in the indictment.
The charge is that the prisoner is accesso-
~ before the fact to the crime of muir.
der. The verdict in responsible to thai
charge is that he is guilty of murder in
the first degree.
The offences are essentially different
Being accessory before the fact of muir
der in the first degree, is substantive of.
| fence and distinct from the offence of
| murder itself-so that one indicted as a
| principal in felony, cannot be found
| guilty as an accessory before the fact
Nor can he, ifi.ndicted as such accessory
be found guilty as a principal felon, ]
Bishop Or. L. S 542, Code S 1891, 1898
The verdict and judgment were there
fore erroneous, in that, they treat the
prisoner as principal, while the indict-
ment charges hun, only as an accessory
before the fact
Ii is further insisted by the counsel fo
prisoner that by the Code, S. ,6Ss-9, thu
punishment for the offence OF placing al
obstruction upon q railroad track is de
fined and so particularly set forth as L
exclude any other or different punish
ment than that specified in said sections
for the offence therein created. While,
in behalf of the State, it is insisted thai
if death ensue ffom the wrongful = act
the guilty party may be punished undel
| S. 4, 597-S.9 of the Code, which define
murder in the several degrees and pre-
scribe its punishment Sections 4, 597
s, 9, of the Code, defining murder in thu
first and second degree, are taken from
from the Act of 1925, ch. %, and EN-
ploy the same language in defining thost
offenses, as used in said act of 1929
Section Z, 6Ss of the Code provides that
"Whoever Wilfully and maliciously put