State v. Knight

62 Tenn. 418

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

Opinion

Freeman, J.,

delivered the opinion of the- Court.

Defendant was indicted in two cases, for liorse stealing, and receiving such property, knowing it to have been stolen. In one case there is no bill of exceptions and no error. The judgment of infamy was correct, as we have held at present Term, (Coldwell v. the State. Supra Ed.) that horse stealing was larceny. Affirm this case.

In the other case, for stealing the property of J. A. Nimno, the jury found defendant guilty of receiving the stolen horse, knowing it to have been stolen. In this the following error is assigned: Defendant was jointly indicted with another party. He moved the Court for a severance, as provided by the Statute then in force. This the Court refused, unless he would lay grounds for it by an affidavit, and the party was put on Ms trial. In this was error. The Statute is imperative, and gives the right to severance without condition or limitation, prescribing the mode of trial, that is, they shall stand for trial in the order in which their names appear in the indictment; Act of 1878. This statute, it is true, was repealed by the last Legislature, but this cannot cure the error, nor make the Court correct. We cannot say how much the defendant’s case may /have been prejudiced by being put on trial, as he was, with another party, who was convicted and has not appealed, as far' as we can see, from this record.

Let this case be reversed, and remanded for a new trial.