78 Tenn. 386 | Tenn. | 1882
delivered the opinion of the court.
The prisoner has appealed in error from a conviction of the crime of murder in the first degree.
The indictment is that the defendant, on August 28, 1870, “ upon the bodies of Susan Kannon and one Mack Kannon, feloniously, etc;, did make an assault, and with' a large stick and other deadly weapons, them the said Susan and Mack feloniously, etc., did strike and wound, giving to them, the said Susan and Mack, several mortal wounds,' etc., of which said mortal wounds, they, the said Susan Kannon and the said Mack Kan-non, then and there died,” etc. The indictment contains all the requirements of a charge of murder in the first degree.' The jury found the defendant guilty “of murder in the first degree as charged in the indictment.”
The testimony of several witnesses is to the effect that in August, 1870, the dead bodies of Susan Kan-non, the wife of the prisoner, and Mack Kannon, their infant child, were found in the woods lot near to the house of the defendant, where he and his family lived. On the back of the head of the wife was a bruised place, which had bled freely, and the neck of the child seemed to be broken from the way the head fell about. One witness further testifies that a night or two before the bodies were thus found, the defendant came to the house of the witness and told him that he intended to kill his wife, because she was pregnant with a child by another man. Upon the witness undertaking to persuade him not to kill her but to leave her, the defend
Susan Kannon, a daughter of the- defendant by bis deceased wife, who said at the trial in September, 1882, that she was sixteen years of age, and who, therefore, at the time of the killing must have been between three and four years of age, was examined as a witness. She testified that she saw her father kill her mother and Mack; that he struck his wife over the head with a rail, and struck her again after she fell; that he then took Mack by the heels, and mashed his brains out against a rock.
The verdict of the jury was guilty of murder in the first degree as charged in the indictment. The charge in the indictment was that the defendant had. killed both the mother .and child with the premeditation requisite to constitute that offense under the statute: Code, sec. 4598. There is evidence to sustain the ver-
Looking, then, to the confessions of the prisoner, and in view of the absence of any testimony tending to establish the elements of murder in the first degree as to the child, the offense ot killing the child would only be murder in the second degree. This court, up'on mature consideration, in a case where the facts would not have warranted the disturbing of the verdict against the prisoner, held, that upon a proper construction of our statute, if the defendant intending to kill the prosecutor, where the killing would have been murder in the first degree, kill the wife of the prosecutor, the offense would only be murder in the second degree: Bratton v. State, 10 Hum., 103. This decision leads to the curious . anomaly under the statute, that while murder committed in an attempt.to perpetrate larceny, is murder in the first degree, yet the murder of one person in an attempt to commit murder in the
The question, upon the state of facts in the record before us, is whether a verdict which finds the defendant guilty of murder in the first degree of two persons can stand when it is not sustained as to one of those persons?
An indictment against a defendant for the murder of two persons would be good upon its face, for the murder may be committed in the same degree, by one and the same act: Fowler v. State, 3 Heis., 154; Womack v. State, 7 Cold., 508. But if the evidence introduced ' upon the trial develop the fact that the murder of each was by a separate act, although in the same transaction and near the same time, or that there was a premeditated intention to kill one of them, and no intention at all to kill the other, the offenses would be distinct, and the State could be required to elect for which offense it would proceed to try the defendant. A refusal by the court to require the election at any time before the jury were charged would, it has been held, be error: Womack v. State, 7 Cold., 508. It is the right of the defendant, it was said, subject 1o no discretion of the court, to be tried for one felony only, and to withdraw every other from the consideration of the jury. In the case before us,
The judgment will be “reversed, and the prisoner remanded for another trial.