Opinion
Opinion filed November 9, 1962.
NUISANCE.
Instruction that if jury found defendant guilty of maintaining a nuisance they should fix the punishment at a fine within the statutory amount or a jail sentence within the time permitted or both in their discretion was proper. T.C.A. secs. 39-105, 39-2901(4)
FROM WASHINGTON.FRANK HAWKINS, Johnson City, for plaintiff in error.
GEORGE F. McCANLESS, Attorney General, LYLE REID, Assistant Attorney General, Nashville, for defendant in error.
Prosecution on charge of maintaining a public nuisance. From an adverse judgment of the Criminal Court, Washington County, Oris D. Hyer, Criminal Judge, the defendant appealed. The Supreme Court, Prewitt, Chief Justice, held that instruction that if jury found defendant guilty of maintaining a nuisance they should fix the punishment at a fine within the statutory amount or a jail sentence within the time permitted or both in their discretion was proper.
Judgment affirmed.
The defendant below, Curtis, was found guilty of maintaining a public nuisance and ordered to pay a Five Hundred ($500.00) fine and serve six (6) months in jail.
The only assignment of error is directed against the charge of the Court and the form of the verdict and judgment.
In his instructions, the Court read to the jury Code Section 39-2901(4) which defines the crime, and then he stated the substance of Section 39-105 T.C.A., which provides that the punishment upon a finding of guilt would be a fine not to exceed $1,000.00, or imprisonment for not more than eleven months and twenty-nine days, or both in the discretion of the court.
The court instructed the jury that if they found defendant guilty they would fix the punishment at a fine within the amount permitted or a jail sentence within the time permitted, or in their discretion both a fine and jail sentence.
The defendant did not object to any part of the charge, and he requested no special instructions. The record does not reflect that he made a request pursuant to Section 40-2704 T.C.A., that the jury fix the entire punishment.
The minute entry states that they found the defendant guilty and fixed his fine at $500.00 and a sentence of six months.
The record also shows that the defendant was found guilty, fined and sentenced as above set out.
The judgment was properly announced by the court. We find no error in the judgment of the lower court and it is affirmed.
BURNETT, WHITE and DYER, JUSTICES, and TOMLINSON, SENIOR JUSTICE, concur.