128 Tenn. 493 | Tenn. | 1913
delivered the opinion of the Court.
The plaintiff in error was indicted and convicted in the criminal court of Knox county for the murder of Samuel C. Hickey on the morning of June 1, 1913. He was sentenced to death and has appealed to this court.- Numerous errors are assigned by his counsel, hut we need consider only one.
The assignment referred to is in substance that the trial judge charged the jury only on the subject of murder in the first degree, and self-defense, and matters relating thereto, and fail to instruct them on the crime of murder in the second degree. This was reversible error. The sections of our Code bearing on the subject are as follows:
“6439. Every murder perpetrated by means of poison, lying in wait, or by an other kind of willful, deliberate, malicious, and premeditated killing, or committed in the perpetration of, or attempt tó perpetrate, any arson, rape robbery, burglary, or larceny, Is murder in the first degree.
“6440. All other kinds of murder shall be deemed murder in the second degree.
“6441. The jury before whom the offender is tried, shall ascertain in their verdict whether it is murder in the first or second degree; and if the accused confess his guilt, the court shall proceed to determine the degree of crime by the verdict of a jury, upon the examination of testimony, and give sentence accordingly.”
Manifestly it was impossible for the jury to perform the duty imposed upon them in the section last quoted, when the trial court failed to submit to them the "question whether the prisoner’s crime fell within the description of murder in the second degree. His failure to charge upon this subject was equvalent to a specific instruction that plaintiff in error was guilty of murder in the first degree, or entitled to an acquittal under his plea of self defense. He thus withdrew from the jury a question which the Code specifically required should be submitted to them. The difference
It was said in Good v. State, 1 Lea (69 Tenn.), 293, 294:
“When it is clear that the grade of offense changed is proved, and there is no room for doubt as between it and a lesser grade embraced by statute in the higher, and of bourse included in the indictment, to charge the law pertaining to such lesser grades would simply tend to confuse and mislead the jury and often result in verdicts inadequate to the crime actually committed. In applying the rule of this opinion, courts will of necessity act which circumspect caution, giving to the accused the full benefit of all the rules of law applicable to the facts developed in the trial of his cause. ■
“When the offense charged is beyond controversy made out and is complete, it is the duty of the court to confine its charge to such case; and so, if the offense must be the one charged or no offense in law, as frequently happens, the charge should be so restricted that the jury may be enabled to decide intelligently the single question presented and not be mystified by abstractions.”
This case was followed and approved in the following subsequent case-: State v. Hargrove, 13 Lea (81 Tenn.), 178; State v. Parker, Id., 221; Palmer v. State, 121 Tenn., 465, 488, 118 S. W., 1022; Frazier v. State, 117 Tenn., 430, 439-441, 100 S. W., 94; Powers v. State,
It follows therefore that, in every murder case wherein the crime of murder in the first degree is involved or embraced in the indictment, the trial judge must charge on both murder in the first degree and murder in the second degree. To lower grades of homicide and to all other kinds of crime, the rule laid down in Good v. State applies, but we deem it proper to repeat the caution offered in Frazier v. State, supra, as follows:
“The better practice to be pursued by trial judges undoubtedly is for them to charge upon all offenses embraced in the indictment, because whenever there is any doubt that the defendant has been prejudiced by such omission it will be error, for which it will be the duty
“It is only in cases where it is absolutely certain that the omission was not prejudicial to the defendant, in the trial court, that a charge omitting instructions upon every offense contained in the indictment can be sustained.”
The court added that it was only because of “such absolute certainty” that the assignment was overruled in that case.
Chapter 32, Acts of 1911, cannot reach the vital error committed in the case before us.
It is proper to state that the hill of exceptions in the present case sets forth the fact that, in their addresses to the jury, both counsel for the State and for the prisoner took the position and argued that the prisoner was either guilty of murder in the first degree or entitled to an acquittal on his plea of self-defense. This fact cannot alter the legal result we have announced. It could not he treated as a waiver of the •prisoner’s right to have the case submitted to the jury in the manner prescribed by statute.
For the error indicated, the judgment must he reversed, and the cause remanded to the criminal court of Knox county for a new trial.
