Kelly v. State

66 Tenn. 323

• Court: Tennessee Supreme Court
• Decided: April 15, 1874
• Status: Published

Opinion

Nicholson, C. J.,

delivered the opinion of the court.

Lewis Kelly was indicted in the Circuit Court of Perry county for stealing a mare and a bridle, the property of P. F. Whitworth. He was found guilty of stealing the bridle, but acquitted as to the mare. The jury assessed his punishment at fourteen months imprisonment in the penitentiary, but in entering the judgment of tbe court he was sentenced to imprisonment in tbe penitentiary for five years.

1. It is argued that the Circuit Judge erred in refusing to arrest the judgment upon the ground that two distinct offenses are charged in the indictment in the same count — stealing the mare and the bridle.

It was held in the case of Wilkins v. The State, 10 Hum., 101, that the stealing of various articles at the same time and place is only one offense, and must be so charged. This rule is not altered by the subsequent statute, making the stealing of a horse a capital offense. It is still the offense of larceny, and the stealing of a horse and a bridle at the same time and place may as well be joined in one count of the indictment now as under the former law.

2. It was error to sentence the defendant to five years imprisonment on the verdict of the jury, which fixed his punishment at fourteen months; but the error can be corrected here, and the judgment rendered as it should have been upon the verdict for fourteen months imprisonment in the penitentiary: Wilcox v. The State, 3 Heis., 110.