71 Tenn. 552 | Tenn. | 1879
delivered the opinion of the court.
The plaintiffs in error, seven negroes and one white man, were indicted and convicted for arson. The white man and five of the negroes prayed an appeal in error to this court, which was granted, after their 'motions for a new trial, and in ' arrest of judgment were overruled. The other two negroes, John Hall and Burrell Smith, have brought the case before us by writ of error. They have, however, been sentenced to death by this court upon another indictment for murder, and this case, as to them, will not now be disposed of.
The indictment was found, and the defendants tried at a special term of the Criminal Court of Rutherford county, appointed by the judge of that court in vacation, as prescribed by the Code, section 3941. It is argued on behalf of the appellants, that the trial of new cases could not be had at that time. In support
The Code, section 4666 is: “Any person who willfully and maliciously burns the house or out-house of another, is guilty of arson, and shall be punished by confinement in the penitentiary not less than five nor more than twenty-one years.”
Section 4668: “ Every person who shall willfully and maliciously burn or set fire to any house, barn,, stable, or other valuable building, or any building containing valuable property therein, or any stack or-shocks of grain, fodder, straw or hay, or any valuable bridge, boat, or other water craft, shall be imprisoned" in the penitentiary not less than two nor more than-twenty-one years.”
The act of 1865, ch. 5, sec. 4 is: “Any person duly convicted of house or bridge burning, shall suffer-
The act, it will be seen, does not in terms repeal any pre-existing acts. On the contrary, it says that nothing in it shall be construed "as repealing the laws now in force for the punishing of the offenses mentioned.” It is true, this language, when construed in connection with what immediately follows, might be held to mean that the laws then in force were not to be considered as repealed, so far as offenses previously committed were concerned. But the whole act of 1865 was of a peculiar character, manifestly intended to meet the state of demoralization touching the rights of property existing at the close of the war, and to be temporary, not permanent. By its first, second and third sections it prescribes the punishment of death, with the like power in the jury to commute to confinement in the penitentiary for an increased term of years, for the ■crimes of stealing a horse, mule or ass, of breaking open the “ house of another,” and robbing or stealing from the person. The object of the proviso at the -end of the fourth section seems to have been to prevent
The act was really in terror mi, to restrain the license of the hour, leaving the administrators of the law the option of pi'oceeding under it, or under the previous statutes. Repeals by implication are never allowed, unless the latter and the former acts cannot possibly stand together. Cate v. State, 3 Sneed, 120; Smith v. Hickman, Cooke, 330. And the general rule is, that subsequent statutes which add cumulative penalties, or institute new modes of proceeding, do not repeal former penalties or methods of proceeding, without negative words, Bennett v. State, 2 Yer., 472; so held, where-the defendant had been indicted under the existing law for an offense the punishment of which was a fine, and claimed that a subsequent act, which punished the-same offense by imprisonment, pillory and infamy, repealed the previous penalties. And in that case there was no such proviso as is 'found in the act of' 1865.
The act of 1865 increases the punishment for “house and bridge burning,” and also for breaking open “ the house of another.” The latter words came before this court for construction in Palmer v. State, 7 Col., 82, and were held, in view of the highly penal character-of the act, to embrace only a mansion or dwelling house. This construction was followed in Mathis v. State, 3 Heis., 127. In this view, and for the same reason, the “house burning” of the fourth section would be limited to the mansion house, leaving the
In this view, too, it becomes unnecessary to consider whether a statute which has been repealed, will be revived' by a repeal of the repealing act, without being recited by its title or substance in the caption ■or otherwise of the last repealing act, under the provision of the Constitution of 1870, art. 2, sec. 17.
The first count of this indictment is framed under the Code, section 4666, for burning “ a certain house, to-wit, a store house,” etc. The second count is under the Code, section 4668, for burning “a certain valuable building, to-wit, a store house,” etc. The punishment under the first of these sections is confinement in the penitentiary for not less than five nor more than twenty-one years; under the second, for not less than two nor more than twenty-one years. JSTo motion was made to quash the indictment, nor to compel the attorney general to elect upon which count he would proceed. The joinder of several distinct felonies of the same degree constitutes no ground of demurrer or arrest of judgment, and of course cannot be asigned as error in a revising court. Wright v. State, 4 Hum., 194. Separate offenses, punished by differ
Objection is made to the action of the court below in refusing to exclude certain testimony. The principal witness is a confessed accomplice, who testified that he and the prisoners had in December previous to the burning, which occurred on the last night in February, organized themselves into a company to rob and burn houses, described the form of swearing in, and stated their agreement to help each other, if caught, by money or fire. The same witness testifies that the - agreement to burn the particular house was only entered into on the night of the fire. The objection to the evidence of the organization of the company and what then passed is, that they are not sufficiently connected with the act for which the parties were indicted. The witness himself says that the burning was in the pursuance of the original agreement. What he means is,
Objection is made to the refusal of the court to exclude the statement of a witness, that he slept on the night of the fire in a room in the second story of the building adjoining the store house which was. burned. But the statement was merely explanatory of the important fact deposed to by the witness, and could not possibly have prejudiced the defendants.. The material fact deposed to by him was, that he had thrown water from his window about the time the accomplice and the prisoners were engaged in their scheme of robbing and burning, according to the testimony of the accomplice, who also proved that they had been' interrupted and startled by the throwing out of water from an upper window of the block of buildings. The evidence was competent and very important.
Objection is also taken to the testimony of two-witnesses who depose to seeing some of the prisoners together, and having conversations with them, after the fire. But the evidence was competent, for what it might be worth, to show the association of the parties, and thereby corroborate the accomplice.
The judge charged, as requested by the defendants, that when several persons are jointly indicted, and
There are only two witnesses whose testimony can be said to corroborate the evidence cf the accomplice as to the other defendants; one of these testifies that Burrell Smith invited him to join their society, and meet him in front of a certain store in Murfreesboro that night, about seven or eight o’clock. Witness met him as requested, the defendant Slaughter being with Smith, and they suggested inducements why he should join them, among other things saying that he would thereby get plenty of money. While they were talking, the other witness passed by, and Slaughter said hold, that rascal will tell. The conversation was interrupted by the blowing of a whistle towards the depot, which Slaughter answered, and he and Smith went towards the sound. Not long afterwards, on the same night, witness went over towards the depot, and saw defendants Slaughter, Hall, Smith and McAdoo, with two men he did not know. He did not, he says, see the defendant Halbert with them that night. This witness had started out with saying that he knew all of the defendants except Butler. And after deposing to the conversation with Smith and Slaughter, he adds: “The two Bailey boys (who are not defendants) were with them sometimes. Several times when I came from church, I saw them all together late at night.
All that the witness deposed to occurred after the fire on which the indictment is found, and the principal conversation on the very next night thereafter.
The testimony of the other corroborating witness, so far as it bears on the defendants other than Slaughter, Hall aud Smith, is in these words: “ Know all the prisoners except Joe Butler and Henry McFerrin. I saw Burrell Smith and Jack Monroe (the preceding witness), talking on the street in front of Smith’s store. Slaughter was sitting on steps about thirty yards. off. When I passed, Burrell Smith and Jack Monroe were talking, and Burrell' Smith said, don’t say anything where that fellow is. I passed on by. Ed. Lytle (defendant), was standing there near the hotel corner, talking with some boys, none of whom I remember, except Ed. Lytle. When I passed back the third time, there was a whistle blown and all moved off towards it. Burrell went towards Slaughter. The whistle was out towards the depot, and the second one was answered by some one near me, and then they were gone.” This witness only identifies the defendant Ed. Lytle as with some boys, who moved off with Smith and Slaughter at the sound of the
In addition, the" proof is that McFerrin lives near the -town of Woodbury, about nineteen miles from Murfreesboro, and two witnesses swear positively to being with him at Woodbury until a late hour on the night of the fire, giving specific reasons why they remember the night. Several witnesses also depose to the regularity of habits of MeAdoo in remaining at home at night during the period spoken of by the witnesses.