Corlew v. State

Dissenting Opinion.

Mb. Justice. GailoR

delivered a dissenting opinion.

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I am compelled to dissent from tlie majority opinion of the Court on this appeal because I am convinced that the authority assumed is not ours in the absence of Legislative grant, and because in the present case the revised sentence imposed by the Court deprives the.defendant of a substantial right.

‘ ‘ The jurisdiction of this Court shall he appelate only, under such restrictions and regulations as may, from time to time, he prescribed by law.” Constitution of Tennessee, Article G, section 2.

That the law is Legislative statute has been repeatedly held. The particular mode in which appellate jurisdiction may be exercised is a matter of regulation by the Legislature. Hun

dhausen

v.

United States Marine Fire Insurance Co.,

52 Tenn., 702 , 704;

McElwee

v.

McElwee,

97 Tenn., 649, 657 , 37 S. W., 560 .

The Legislature has consistently refused to grant the authority taken in the majority opinion — the last time being by its failure or refusal to pass an enabling act on this subject at its session in 1943.

I am in hearty accord with the statement in the opinion that the authority taken makes for sound economy and a speedy result in criminal cases, but I cannot escape from' the conviction that the grant of authority must come from the Legislature. It is not our province to initiate economies, and if the Legislature fails in that regard', it is not our responsibility.

In the present case, the defendant was convicted of grand larceny and his punishment fixed for that offense, although the evidence of the value of the property stolen showed that beyond doubt, he was only guilty of petit larceny.

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In the majority opinion, the conviction is corrected and the punishment reduced to the minimum for petit larceny under Code, section 10925.

It is insisted that since the greater offense includes the lessor, that defendant’s guilt has been fixed finally, and that if his punishment be reduced to a penitentiary sentence of one year, the minimum under section 10925', no right of his is infringed. While this may be true under section 10925, the opinion brushes aside the rights which defendant would obviously have on a new trial under section 109.34, which is as follows:

“In all cases of petit larceny, and in all prosecutions for receiving stolen goods under the value of sixty dollars, the court may, in the event of conviction, on the recommendation of the jury, substitute, in lieu of punishment in the penitentiary, fine and imprisonment in the county jail.”

How can this Court say with the history of this case, what another jury on a resubmission of evidence, would or would not do ? To conclude categorically that because one jury has found the defendant guilty of grand larceny, another jury would not make a recommendation for a commuted sentence, is contrary to my observation of the result in jury trials.

Reluctant as I am to disagree with the writer of the majority opinion,' for the ripeness of whose wisdom I have high regard, I cannot force myself to find any substantial difference between those crimes which are fixed by degrees as in homicide and larceny, and those where, in separate sections of the Code, there is one crime fixed for the commission of the act itself, and another which fixes the crime of an attempt to commit such criminal act. In such a case decided in 1875, and consistently followed

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in many subsequent decisions of this Court since that time, it was said:

“We. are asked by the -State to reverse the judgment of the court, and set aside the verdict of the jury, and pronounce judgment of confinement in the penitentiary for five years, being the highest punishment provided by sec. 4630 of the Code. We do not think we have any authority to do this.

It is the exclusive province of the juries to ascertain the time in such cases, and when they exceed their powers, and the Circuit Judge pronounces judgment approving their erroneous verdicts, we can only reverse the judgment and remand the cause.”

(Italics ours.)

McDougal

v.

State,

64 Tenn., 660, 661, 662 .

The limited authority of this Court was thus expressed in a recent case:

“It was a jury function to fix the maximum period of confinement, and we are of opinion that the trial court cannot discharge that function of the jury. And it is an invasion of the right of the prisoner for the court to fix the maximum period of his confinement, a duty which the jury alone can discharge. ”

Oliver

v.

State,

169 Tenn., 320, 322, 323 , 87 S. W. (2d), 566, 567 .

I cannot agree that the rule so expressed is distinguishable from the questions presented on this appeal.