Greer v. State , 62 Tenn. 321 ( 1874 )

McFarland, J.,

delivered the opinion of the Court.

The prisoner, upon his first trial, was convicted of murder in the first degree, the jury, in their verdict, expressing the opinion that there were mitigating circumstances, in accordance with §5257 of the Code. The Circuit Judge, in pronouncing judgment upon that verdict, commuted the punishment from death to imprisonment for life. From this judgment the prisoner appealed, and at the last Term of this Court, the judgment was reversed for errors committed, and a new trial awarded. The prisoner was again tried and convicted of murder in the first degree, the jury not expressing any- opinion as to mitigating circumstances. Upon this verdict the judgment of death was pronounced, and the prisoner has again appealed.

Among other questions it is maintained, that by the first verdict and the judgment of the Count commuting the death penalty, the prisoner could not be again tried for his life. This position is untenable. §5257 of the Code was taken from the Act of 1838. That Act made it imperative upon the Court to commute the death penalty when the jury expressed the opinion that there were mitigating circumstances, but this was changed by the Code, and the Court vested with the discretion to commute upon such finding of the jury, or to disregard it and pronounce the death penalty, if, in his opinion, it was proper to do so. See Lewis v. The State, 3 Head, 127. In that case the Circuit Judge disregarded the opinion expressed by the jury as to mitigating circumstances, and sentenced the prisoner to death. Upon appeal, the judgment was affirmed by this Court, and the prisoner executed. And the present Court followed this authority in the case of Eason v. The State, at Jackson, and also Beatty v. The State.

Our Criminal Code was enacted in 1829. This Act divided murder into two grades — murder in the first and murder in the second degree, and annexed to each different degrees of punishment. If, upon trial, a prisoner is acquitted of murder in the first degree, and convicted for a lower grade of crime, it amounts to this: be cannot again be put upon trial for this offence; and so as to any grade of homicide of which be may be acquitted. This would be putting him twice in jeopardy, in violation of the Constitution. The acquittal constitutes a bar to a second trial for the same offence, and it is not necessary that there should be a formal plea, if the prisoner is arraigned upon the same indictment, as his acquital is a matter of record in the same case.

The Act of 1838, particularly as it is modified in the Code, §5257, cannot, as we think, be héld to subdivide murder in the first degree into two separate grades of crimes; that is, murder in the first degree without mitigating circumstances, and murder in the first degree with mitigating circumstances, so that the finding of mitigating circumstances by one jury would be an acquital of the higher grade and a bar to another trial. This seems to us manifest. The language employed does not assume to create two grades of crime. There is no definition of the supposed new grade of offence — nothing showing in what the distinction consists. The jury are simply authorized to express the opinion that there are mitigating circumstances. There is no definition of mitigating circumstances, either in the statutes or in our judicial construction of the law. It seems rather to have been intended in favor of life, to give the jury the right to express this opinion in their verdict, which but amounts to a recommendation to mercy, that the Court may or may not regard.

In determining whether, in their opinion, there are mitigating circumstances, the jury are left entirely to their own discretion. They are not told by the Judge what would be mitigating circumstances. It would possibly be error for the Judge to attempt to do so, as this would be to limit the jury on this point to such circumstances as the Judge might indicate; whereas, the Statute leaves the matter to the jury without restriction. We think the idea that the Statute creates a new grade of offence is inconsistent with the holding that the Court may disregard the finding of the jury. If it be a separate grade of crime, the acquittal by the jury of the higher grade should be conclusive upon the Court by the terms of the Constitution itself.

Nor do we think it can be maintained that the finding of mitigating circumstances in the first verdict, with the judgment of the Court thereon, was conclusive upon the Court in rendering judgment upon the last verdict. If the Court, in the first instance, might have disregarded the recommendation, we think, where that judgment and verdict is set aside, and a new trial had before a different tribunal, and, possibly, upon different testimony, the Court must pronounce its judgment upon the last verdict alone.

So we hold that there is no error in the record upon this question.