Forrest r. The State.

soon as the testimony developed the fact that the killing was by separate acts although on the same occasion, and at any time during the trial, had the right to compel the State to elect upon which homicide it. would proceed. And if it further appeared from the evidence that the two offenses were of different grades, and that the joinder of them was prejudicial to the prisoner, the court should set the verdict aside, and it would be error not to do so: Kannon v. State, 10 Lea, 386. In the case before us, the record leaves no doubt that the two crimes with which the prisoner stands charged and convicted were of the same grade. If the State chose to pursue the defendant for only one crime instead of for two crimes, it was for the interest of the defendant to acquiesce. And so he and his learned counsel manifestly thought. The question therefore, is, whether after such acquiescence, he is entitled to assign the fact as error.

In England it seems now to be settled that duplicity after verdict is no ground for a writ of error, and there seems to be no authority holding that it can be made the subject of a motion in arrest of judgment: 1 Bish. Cr. Pr., sec. 443. And the great weight of American authority is that the defendant cannot avail himself of the duplicity after verdict: Id. In this State it has been held in one case that the objection of duplicity comes too late after verdict of conviction for a misdemeanor, and cannot be made the subject of a motion in arrest of judgment: State v. Brown, 8 Hum., 89. In another case, it was said that in felonies duplicity might "most probably" be

Forrest . The State.

taken advantage of by motion in arrest of judgment, but the point was expressly reserved, not being directly presented: State v. Williams, 10 Hum., 101. In a later case of felony, where the duplicity appeared on the face of the indictment, the court, after quoting the language used in the case last cited, held that the defendant by going to trial on the indictment clearly waived all objection to it": Scruggs v. State, 7 Baxt., 38. In a still later case, where the duplicity appeared on the face of the indictment, the motion in arrest was sustained: Morton v. State, 1 Lea, 498.

It

In the case now before us the indictment is good upon its face, and therefore the motion in arrest of judgment is of no avail. That motion reaches only defects on the face of the record, and no others. does not reach matters appearing only in the evidence on the trial: 1 Bish. Cr. Pr., see. 1285. And the question is whether we shall reverse upon a circumstance developed by the evidence which would not be error at common law, upon which no objection was made in the court below, and by which we cannot see that the defendant was prejudiced in his defense. We are of opinion that no sufficient reason appears for interference with the judgment upon this ground.

Error is assigned on the charge of the court in relation to insanity, but the charge is almost in the exact language which, although brief, was held sufficient in Stuart v. State, 1 Baxt., 178. And besides, there was not a particle of proof tending to show the existence of any form of insanity. The witnesses who depose on the subject speak of the prisoner as

Forrest v. The State.

having good ordinary natural sense but extremely ignorant. The ignoble motive to this hideous tragedy seems to have been to get rid of a bed-ridden grandfather and a petulant mother.

The opinion of the jury, binding on the court: But the opinion is of

By the Code, sec. 5257, where any person is convicted of a capital offense, and the jury who convicted him state in their verdict that they are of opinion that there are mitigating circumstances, the court may commute the punishment from death to imprisonment for life in the penitentiary. even when unqualified is not Leris v. State, 3 Head, 127. course entitled to grave consideration: Poe v. State, 10 Lea, 673. In this case the jury have only found that there were "possibly mitigating circumstances." The recommendation in that form is attempted to be supplemented by one of the jurors, who says that ten of the jurors were for the verdict returned "with some mitigation," while the other two were for the same verdict "with possibly mitigating circumstances; " that all agreed to the verdict reported, a part of the ten believing that the court would not receive it, and that the jury would be remanded for further consideration of the case, in which event, the other two jurors seemed to think that the jury would agree to the verdict "with mitigating circumstances." The affidavit, it will be noticed, so far as it undertakes to state facts, does nothing more than the verdict itself. For the words "with some mitigation" are only equivalent to the words actually used. And where the affidavit speaks of what a part of the jury believed

Bank v. Marr.

would occur, or two of them thought might happen, it amounts at most only to the expression of an opinion, and is not entitled to any consideration. There are no mitigating circumstances in the case, and there being no error in the proceedings, the judgment must be affirmed.

BANK OF WEST TENNESSEE v. T. S. MARR et al.

PLEADINGS AND PRACTICE. Scire facias. Plea to merits. If to a scire facias against heirs, based upon a judgment against the personal representative, to show cause why execution should not issue against the real estate descended, the heirs appear and plead to the merits, they thereby waive any irregularity in the issuance of the scire facias, either in the preliminary order, or the form of the writ.

FROM SHELBY.

Appeal from the Chancery Court at Memphis. W. W. MCDOWELL, Ch.

Gantt & PATTERSON for complainant.

ESTES & ELLETT, W. M. RANDOLPH and WRIGHT, FOWLKES & WRIGHT for defendants.

COOPER, J., delivered the opinion of the court.

The case presented in this record is a branch of the litigation which was before this court at a former term, and the opinion in which is reported in 4 Lea,

Bank v. Marr.

578.

One object of the litigation was to hold the stockholders of the Bank of West Tennessee liable for unpaid stock for the benefit of the creditors of the bank. L. P. C. Burford, a non-resident of the State, was one of these stockholders. He died on September 21, 1863, and S. R. Burford, also a non-resident of the State, on October 2, 1865, qualified as administrator of his estate. On March 27, 1877, the chancery court, in which the suit was then pending, rendered a decree in favor of E. B. McHenry, as receiver of the assets of the bank, against S. R. Burford, as administrator of L. P. C. Burford, deceased, for $11,759.26, balance found to be due from him on unpaid stock. On March 2, 1878, upon an affidavit of McHenry stating the names of the heirs of L. P. C. Burford, deceased, the clerk and master of the chanorder upon his rule docket cery court, made for the issuance of a scire facias against these heirs to show cause why the judgment should not be revived against them. A scire facias was issued accordingly and executed on some of the heirs, and publication made as to the residue. The heirs appeared by counsel and filed pleas to the merits, setting up in defense the various statutes of limitation. Demurrers were filed to some of these pleas, and replications to others which were in their turn demurred to by defendants. These demurrers were all decided in favor of the plaintiff, and the defendants declining to plead further, a decree was rendered reviving the judgment against the heirs, and ordering an execution to issue against the lands which had descended to them.

an

The