The majority remand for a new trial as to punishment, because the trial judge erred in not charging the provisions of T.C.A. § 40-2703.
*350By the express terms of that statute, it is applicable only “when in the opinion of the jury the offense merits a less punishment” than a minimum of one year in the penitentiary. The jury in the case at bar set the punishment at one to two years, which is obviously more than the possible minimum of one to one. I therefore conclude that the error is harmless, since of necessity the jury must be said not to have found that the crime merited less than one year, since it actually set more than that penitentiary minimum.
A case precisely on point, as I read it, is State v. Melvin James Dixon, an opinion of our Supreme Court written by Mr. Justice Cooper and filed at Knoxville on November 17, 1975. Dixon was convicted of first degree murder in two cases and sentenced to sixty years in each case. The correct minimum punishment for the crime was, at that time, twenty years; but the trial judge erroneously charged the jury that twenty-five years was the applicable minimum. So, just as in the case at bar, an incorrectly inflated minimum punishment was charged, but the jury set punishment above the inflated incorrect minimum. The Supreme Court said:
“ * * * It is thus obvious that the jury, regardless of which provision of the law was in effect, had no intention of giving the defendant the minimum term and that consequently the minimum term for the offense of murder in the first degree was not a material factor in their determination of the sentences. Error in charging the minimum sentence to be inflicted is harmless error where it is obvious that the error could not have affected the sentence determined by the jury, (citing cases)”
I respectfully dissent.