141 Tenn. 522 | Tenn. | 1919
delivered the opinion of the Court.
Munson was convicted in the criminal court of Shelby county of voluntary manslaughter, and has appealed. There is an agreement in the hill of exceptions that the conviction was warranted by the facts, and that the proceedings were regular, except that the presiding judge made a statement to the jury which was not in writing. This oral statement forms the basis of the only assignment of error.
In his regular charge, which was in writing, the judge told the jury,, in substance, thát, if they convicted the defendant of voluntary manslaughter, they would fix his punishment at confinement in the penitentiary from two to ten years. After the case was given to the jury and after they had considered of their verdict, they returned, and a member of the jury requested further instructions upon this point. The judge then stated to them orally that they had nothing to do with fixing the punishment of defendant, if they found
The statute provides as follows:
“On the trial of all felonies, every word of the judge’s charge shall be reduced to writing before given to the jury, and no part of it whatever shall be delivered orally in any such case, but shall be delivered wholly in writing. Every word of the charge shall be written, and read from the writing, which shall be filed with the papers, and the jury shall take it out with them upon their retirement.” Thompson-Shannon’s Code, section 7186.
This statute has been construed by this court to be an imperative direction to the courts to reduce to writing every word of their charge to the jury in ah felony cases. Manier v. State, 6 Baxt., 602; Newman v. State, 6 Baxt., 164; Huddleston v. State, 1 Baxt., 110; State v. Missio, 105 Tenn., 219, 58 S. W., 216; Elijah Duncan v. State, 7 Baxt., 387.
These cases show that this court has strictly construed the statute, and has required a strict compliance with its terms. But since the foregoing cases were decided, the legislature has enacted chapter 32, Acts of 1911 (Shannon’s Code, section 6351al). This statute forbids a reversal of any ease coming to this court for any error in any part of the procedure below unless this court is of opinion, after an examination of the entire record, that the error complained of affected the merits. The statute has been construed in a number of cases, among which are Harness v. State, 126 Tenn., 365, 149 S. W., 911, Hamblin v. State, 126 Tenn.,
In this case the judge had committed error in his original charge by directing the jury to fix the punishment of defendant at from two to ten years, if they convicted him of voluntary manslaughter. A disagreement arose among the jurors as to their duty in this respect, and one of them, in the presence of all concerned, asked the judge what was meant in respect to this phase of the case. The judge replied orally that the jury had nothing to do with fixing the punishment in the event they convicted defendant of voluntary manslaughter, because the law fixed it at confinement in the penitentiary from two to ten years. Thompson-Shannon’s Code, 4604, 4645, 7210a9, 7210al0.
Plaintiff in error cannot complain at the fact that the judge may have induced the jury to agree upon their verdict, because it is agreed by plaintiff in error that the verdict is warranted by the facts. The last statement to the jury was a correct statement of the law, and the error consists, not in the substance of what the judge said orally, but in the way which it was
The practice of orally charging juries in felony cases is not to be encouraged, and trial judges should in every case reduce their charges to writing. Chapter 32, Acts 1911, supra, is valid and is declaratory of the previous practices of this court in "criminal cases. Harness v. State, supra. But it is conceivable that errors might be committed, notwithstanding the act, for which a reversal would have to be had. But under the facts of this case we are compelled by the act to affirm it.
Affirmed.