Year: 1875

Turner Greer, cOlOred, convicted Of muir
der in the first degree by the Criminal
Court Of Davidson, was before the Supreme
Court yesterday TO hear the decision Of
that tribunal in his case on an appeal.
Justice Mcfarland delivered the following
as the opinion Of the majority Of the
Judges:


The prisoner upon his first trial was con-
yicted of murder in the first degree, the
Jury in the verdict expressing the opinion
that there were mitigating circumstances
in accordance with section 5257 Of the Code.
The Circuit Judge in pronOuncing judg-
ment upon that verdict eOmmUtsd the
punishment from death TO Imprisonment
for life. From this judgment the pris-
Oner appealed, and at the last term Of
this Court the judgment was reversed for
errors committed and a new trial awarded.
The prisoner was again tried and convict
ed Of murder in the first degree-the jury
not expressing any opinion ast mitigating
circumstances. Upon this verdict the
judgment Of death was pronounced and the
prisoner has again appealed. Among 9th
er questions it is maintained that BY the
first verdict and the judgment Of the court,
committing the death penalty, the prisoner
could not again be tried for his life. This
position is untenable. Section 5257 of the
Code was taken from the act Of 1888; that
act made it imperative upon the
court to commute the death pen
atty where the jury expressed the
opinion that there were mitigating cir
cumstanes. But this was changed by the
Code and the court vested with the discre-
tiOn to commute upon such finding Of the
Jury, or to disregard it and pronounce the
death penalty, if, in his opinion, it was
proper TO do so. See Lewis vs. The State,
8 Head I27. In that case, the Circuit
Judge d.sregarded the opinion expressed
by the jury as to mitigating circumstances,
and sentenced the prisoner to death. Upon
appeal, the judgment was affirmed by this
court, and the prisoner executed; and the
present court followed this authority in
the case of EasOn vs.The State, at Jackson,
and also Beatty vs.. The State.


Our criminal code was enacted in 1920.
This act divided murder into two grades,
murder in the first and murder in the
second degree, and annexed 70 each differ
ent degrees Of punishment. If, upon trial,
a prisoner is acquitted Of murder in the
first degree, and conviction for g lower
grade Of crime amounts to this, he cannot
again be put upon his trial for this OiIense.
Aud so as to any grade Of homicide
Of which he may be acquitted. This would
be putting him twice in jeopardy, in VIOLA
ton Of the Constitution. The acquittal
constitutes a bar to a second trial for the
same Oflense, and it is not necessary that
there should be a formal plea if the prisoner
is arraigned upon the same Indictment, as
his acquittal is a matter Of record in the
same case.


The act Of 1888, particularly as it is
modified in the Code, sec. 5257, cannot, as
we think, be held to subdivide murder in
the first degree t1ithOh mitigating circl1n-
/ stances and murder in the first degree viii
/ mitigating circumstances, so that the find
/ ing Of mitigating circumstances By one jury
would be an aequittal Of the higher grade
/ and bar to another trial. This seems Il
us manifest. The language employed doe:
/ not assume to create two grades Of the
/ crime There is no definition Of the sup
/ posed new gTade of the Ofiense; nothing
/ showing in what the distinction
consists. The jury are simply authorized
to express the opinion that there are mitl
| eating circumstances. There is no dehni-
| tiOn Of mitigating circumstances either in
the statute or in the judicial construction: