
    Shipp v. State.
    (Knoxville.
    September Term, 1914.)
    HOMICIDE. Sentence. Statute. Death penal.ty.
    A defendant convicted of murder in the first degree should be sentenced to death by electrocution, as provided by the Act September 27, 1913 (Laws 1913, 1st Ex. Sess., eh. 36), rather than by hanging, as provided in Shannon’s Code, sec. 6442, where the crime was committed before the act of 1913, but the conviction was had after its passage.
    Code cited and construed: Sec. 61 (S.); sec. 6442 (S.).
    Acts cited and construed: Acts 1913, ch. 36.
    PROM HAMILTON.
    Appeal from the 'Criminal Court of Hamilton County. — S. D. M'cReynolds, Judge.
    John H. Eaely, for appellant.
    Wm. H. SwiggaRt, Je., assistant attorney-general, for the State.
   Me. Justice Buchanan

delivered the opinion of the Court.

The plaintiff in error was tried upon a charge of murder in the first degree and under his plea of not guilty. The jury by its verdict found him guilty of murder in the first degree. He moved for a new trial, and, that motion being overruled, lie moved in arrest of judgment, and, that being overruled, be appealed to this court.

His counsel has presented no formal assignment of errors, but appeared at the bar and urged that mitigating circumstances appear in the record, and should have been found by the verdict of the jury. "We have carefully examined the record. We cannot agree to the insistence above. Every element of the crime of murder in the first degree is shown in the evidence without material conflict and with unusual clearness. A question, however, is made as to the manner in which the death penalty shall be inflicted. The crime was committed on July 31, 1913, at which time section 6442 of Shannon’s Code was in force, which provided:

“Every person convicted of the crime of murder in the first degree, or as accessory before the fact to such crime, shall suffer death by hanging. ’ ’

But that section, as to the manner of inflicting the death penalty, was repealed by chapter 36 of the Acts of the First Extra Session of 1913. The latter act, by its first section, provided that:

“Whenever any person is sentenced to punishment by death, that court shall direct that the body of such person be subjected to shock by a sufficient current of electricity until he is dead. ’ ’

This act was passed and approved September 29, 1913, and by its terms became effective from and after its passage.

It is clear that it was the purpose of the legislature that the death penalty should be inflicted by means of electrocution in all cases where the sentence of death was pronounced after the act of 1913 went into effect, without regard to whether the crime was committed before or after the passage of that act, and so we have heretofore held. We do not think section 49 of the Code of 1857-58, which is section 61 of Shannon’s Code,, applies in this case. The death penalty is not changed by the act of 1913. Offenses punishable by death prior to the passage of that act are so punishable under it. It only changes the method of inflicting the death penalty.

The trial court should have sentenced the prisoner to suffer death in the manner provided by the act of 1913. Its judgment will therefore be modified, and proper sentence under that act will be pronounced in this court. As modified, the judgment of the trial court is affirmed.  