Lead Opinion
delivered the opinion of the Court.
Luther Lockhart appeals from a dismissal of his petition for the writ of habeas corpus, which petition allеges his conviction was void on the ground the jury, by its verdict, did not specify the degree of murder of which it found him guilty.
The Grand Jury of Hаmilton County, at' Is May Term. 1959, returned an indictment against petitioner charging statutory murder in the first degree. In October, 1959, pеtitioner plead guilty to “first degree murder” and the jury returned its verdict as follows: “Fix the punishment for the defendant at the tеrm of not more than fifty (50) years in the penitentiary.”
The issue raised here relates to T.C.A. sec. 39-2404, which is as follows:
The jury bеfore whom the offender is tried, shall ascertain in their verdict whether it is murder in the first or second degree; and if the аccused confess his guilt, the*482 court shall proceed to determine the degree of crime by the verdict of a jury, upon the examination of testimony, and give sentence accordingly.
Since the enactment of this stаtute in 1829 this Court has construed same on numerous occasions. It has been consistently held under an indictment for murder in the first degree, or for murder without any specifications as to the degree, the failure of the jury by its verdict to specify the degree of murder of which it finds a defendant guilty will render the verdict void. Kirby v. State, 15 Tenn. 239 (1834); Mitchell v. State, 16 Tenn. 514 (1835); McPherson v. State, 17 Tenn. 279 (1836); Waddle v. State,
Tn all of the cases above citеd and other similar cases, the citation of which would be cumulative,' the defendant entered a plea of not guilty. So far as we can determine the only case bearing on the issue here wherein the defendant entered a plea of guilty is State ex rel. Brinkley v. Wright,
*483 * * * th.e reasonable construction to be givеn this code section, read as a whole, or of the clause in question, read separately, is that where a defendant' pleads guilty to an indictment charging murder the jury by its verdict must determine the degree of unlawful homicide оf which he is guilty, and that the natural meaning of each word of the clause in question and the punctuation, or laсk thereof, likewise require such construction.193 Tenn. at 29 ,241 S.W.2d at 860 .
■ Under authority of the Brinkley case, the jury in the case at bar was required to specify by its vеrdict the degree of murder of which it found petitioner guilty.
' The State in the case at bar agrees everything we have ■noted above in this opinion is correct, nor is it insisted the jury by its verdict specified the degree of murder of which it found defendant guilty. The position of the State is that the judgment against petitioner should be affirmed by applying the harmless error statute. T.C.A. sec. 27-117. This insistence is based on the fact petitioner did plead guilty to a specific dеgree of murder; that is, first degree murder. This is a different situation from the Brinkley case wherein the defendant did plead guilty to an indictment charging* murder in the first degree, but did not plead guilty to a specific degree of murder.
’ Counsel for both the State and petitioner in their briefs state there are no cases directly in point on the issue here either in this jurisdiсtion or other jurisdictions having comparable statutes. Our research indicates such is correct. ■
In Waddle v. State, suрra, the defendant was indicted for murder and the jury returned its verdict stating: ‘‘We find him guilty as charged in the indictment, with
But in the face of the positive mandates оf the statute there is no room for intendment or legal implication, for it imperatively requires that the jury shall asсertain in their verdict whether it is murder in the first or second degree.112 Tenn. at 560 ,82 S.W. at 828 .
In the case of Tharpe v. State,
Over the long history of this statute the Court, without exception, has construed the statute to require the jury by its verdict to specify the degree of murder of which it finds a defendant guilty. As the Waddle case states, it is imperative upon the jury to do so. We do not think it
The judgment of the trial court is reversed, and the writ of habeas corpus granted. The defendant is remanded to the custody of the proper officials of Hamilton County, Tennessee for retrial.
Concurrence Opinion
(concurring).
.1 concur, because the verdict and judgment are void, and so there is no judgment to which the harmless error statute, T.C.A. sec. 27-117, can be applied in affirmance.