text:
    BORCHERT ENTERPRISES, INC., Plaintiff-Appellant, v. E. H. WEBB, Jr., and Ann Thomas Webb, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section (sitting at Nashville).
    Oct. 16, 1978.
    Certiorari Denied by Supreme Court Feb. 26, 1979.

      Joel H. Moseley, Nashville, for plaintiff-appellant.
    Claude Callicott, Nashville, for defendants-appellees.
   SUMMERS, Judge.

The defendants-appellees, E. H. Webb, Jr., and Ann Thomas Webb, are the owners of certain real property in Davidson County, Tennessee, which is occupied by the plaintiff-appellant, Borchert Enterprises, Inc. The property in question was leased by the defendants to Scooter Stores, Inc., on May 8, 1971. On August 21, 1975, Scooter Stores, Inc. assigned the lease to the plaintiff, and the defendants approved the assignment.

Thereafter, some controversies arose between the plaintiff and the defendants, and a lawsuit was filed by the plaintiff against the defendants. The defendants counterclaimed against the plaintiff. The case was heard below by the chancellor without a jury. The plaintiff appealed only one of the rulings of the chancellor and assigned the following error:

The chancellor erred in holding that the term “gross sales” includes income received from pinball machines.

The clause in the lease which is in dispute is as follows:

Lessee, in addition, agrees to pay to Lessor as additional rental a sum equal to two (2%) per cent of the gross sales in excess of Two Hundred Thousand ($200,-000.00) Dollars per annum, excluding sales tax and money order sales, said payments to be made annually, within forty-five (45) days from each annual anniversary of this lease. Lessee agrees to provide to Lessor annually a Certified Public Accountant’s report of sales to substantiate the payments made hereunder.

When the sublease was assigned by the defendants to the plaintiff, the plaintiff was engaged in the operation of a convenience market. Later, in October of 1975, the plaintiff placed in the convenience market several pinball machines. The defendants contend that the income generated by these pinball machines is included within the term “gross sales”; the plaintiff contends that the revenue from the pinball machines is not properly included within the term “gross sales”. On this point the chancellor ruled as follows:

7. That receipts from pinball machines located on the leased premises are included in the term “gross sales” as said term is used in the lease and must be included in determining the amount of gross sales in excess of Two Hundred Thousand Dollars ($200,000.00) per annum upon which excess the plaintiff is required by the lease to pay an additional rental of two percent (2%) provided, however that the pinball receipts which are to be included in the term “gross sales” are those actually received by Borc-hert Enterprises, Inc.; stated another way, the term “gross sales” includes the fifty percent (50%) of the net profits from the pinball máchines and does not include the portion of the pinball machines taken out by the owners of the pinball machines.

The 1975 Supreme Court case of Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, also involves the interpretation of a sublease. Justice Henry in that case said:

The cardinal rule for interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention, consistent with legal principals. Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355 (1955).
It is the Court’s duty to enforce contracts according to their plain terms. Eleogrammenos v. Standard Life Ins. Co., 177 Tenn. 328, 149 S.W.2d 69 (1941). Further, the language used must be taken and understood in its plain, ordinary and popular sense. Guardian Life Ins. Co. v. Richardson, 23 Tenn.App. 194, 129 S.W.2d 1107 (1939).
The courts, of course, are precluded from creating a new contract, for the parties. Dubois v. Gentry, 182 Tenn. 103, 184 S.W.2d 369 (1945).

The definition of a sale under T.C.A. 47-2-106(1) is: “. . .A ‘sale’ consists in the passing of title from the seller to the buyer for a price. . . In playing pinball machines there is nothing that passes from a seller to a buyer. This activity is considered an amusement and not a sale.

The sales that are reported to the state and on which sales tax is paid do not include receipts from pinball machines. At the time that the lease was drawn up between the defendant and the original lessee, pinball machines were not in the lessee’s place of business. We cannot say the parties contemplated the inclusion of revenue from pinball machines in gross sales. It was only after the sublessee, the plaintiff herein, had been in possession of the property for several months that pinball machines were placed therein.

The term “gross sales” would appear to this court to be limited to transactions which are actually considered sales. Had the language in the lease been gross revenue, income, receipts, earnings, receivables or payments, this court would have no doubt that the income from the pinball machines would be included in computing the additional rent due. However, the use of the word “sales” tends to limit the kind and quality of income to be used in calculating the additional rental.

From the testimony in the bill of exceptions we find that the plaintiff took no part in drafting the instrument in question. The defendants and Scooter Stores, Inc. negotiated the terms of this lease. It is also settled law in Tennessee that any ambiguity in a contract is settled against the drafter of that contract. Fuller v. Orkin Exterminating Company, Inc., Tenn.App., 545 S.W.2d 103 (1975); Hanover Insurance Company v. Haney, 221 Tenn. 148, 425 S.W.2d 590 (1968); Turner v. Zager, 50 Tenn.App. 674, 363 S.W.2d 512 (1962); and many others.

Therefore, this court sustains the assignment of error of the plaintiff and reverses that portion of the chancellor’s ruling from which the plaintiff appealed. We find that the income received from the pinball machines should not be included as part of the “gross sales” referred to in the lease agreement.

The defendants, who are the appellees herein, also assigned errors. Their first' error deals with the chancellor’s ruling that only fifty percent (50%) of the pinball machine income, the amount actually received by the plaintiff, would be used in computing the additiqnal rent. As we have sustained the assignment of error of the plaintiff, this issue is no longer viable, and we will not address the same.

The defendants next assigned as error the chancellor’s holding:

8. That the arrangement between the plaintiff and the owner of the pinball machines for the placement of such machines in the premises and for the operation of same does not constitute a subleasing and therefore does not constitute a violation of the provision of the lease which prohibits a sublease without the prior written con- • sent of the defendants.

We agree with the learned chancellor that the placing of pinball machines on the leased premises is not a sublease. To hold otherwise would be ruling that any time a tenant wished to place a pay telephone, a cigarette machine, a candy vending machine or any other machine of this nature in his store, he would have to obtain the permission of the lessor. This court will take note from its general knowledge that the placing of machines such as this, absent a specific clause in the lease to the contrary, is not a sublease in the normal and customary use of the term.

Therefore, it is the ruling of this court that the judgment of the chancellor holding that the pinball machine receipts should be computed in the “gross sales” of the lessee is overruled. The assignments of error of the defendant are without merit. The judgment of the lower court shall be reversed in its ruling from which the plaintiff appealed. The costs of this cause shall be assessed against the defendants.

MATHERNE, J., and LLOYD TATUM, Special Judge, concur.


source: Caselaw Access Project

author: SANDERS, Judge.

license: Public Domain

text:
    Robert William SEGELKE v. Rita Mae SEGELKE.
    Court of Appeals of Tennessee, Eastern Section.
    Dec. 12, 1978.
    Certiorari Denied by Supreme Court May 7, 1979.

      Scott F. May, Watson, Cox, Arnoult & May, Memphis, for appellant.
    Barbara White Sims, Phillips, Cash & Levitt, Chattanooga, for appellee.
   OPINION

SANDERS, Judge.

The dominant issue on this appeal is jurisdiction of a petition to change custody of minor children.

The Petitioner-Appellee, Rita Mae Se-gelke (Sliger), and Respondent-Appellant, Robert William Segelke, were divorced in the Circuit Court of Hamilton County in 1974. The Appellant was granted the divorce and awarded custody of their two minor children, subject to reasonable visitation privileges of the Appellee. Immediately after the divorce the Appellant moved his residence to Houston, Texas, where he has lived with the children up to this time.

During the summers of 1975 and 1976 the children visited with the Appellee at her home in Hamilton County, Tennessee. In July, 1977, the children returned to Hamilton County for their summer visit with the Appellee. Immediately after the arrival of the children in Hamilton County the Appel-lee filed a petition in the Circuit Court of Hamilton County for a modification of the original divorce decree to change custody of the children from the Appellant to her. The petition alleges there has been a material change in circumstances since the entry of the original decree and it is manifestly to the best interest of the children that their custody be changed from the Appellant to the Appellee. The petition says:

“The material change of circumstances which have occurred since the entry of the aforesaid decree and which give rise to the filing of this complaint for modification are as follows:
“1. Plaintiff has remarried since the entry of the aforesaid decree, and she can provide the minor children with a suitable home;
“2. Respondent has not remarried since the entry of the aforesaid decree; however, he has been living with a young girl, and such circumstance does not provide a suitable environment for these minor children;
“3. Although respondent was granted custody of the minor children under the aforesaid 1974 decree and although respondent has resided in Houston, Texas, with the children since the entry of said decree, plaintiff has maintained continued love, interest, concern and contact with her children. That she has visited with the children as often as possible considering the distances involved; That she has had the children for a period of time both this summer and last summer;
“4. In addition, because of her love and concern for her children, plaintiff went to Houston, Texas, in February 1976 and attempted a reconciliation with the respondent; however, after a month, respondent informed plaintiff that his girl friend was returning from California where she had been for the period of time of attempted reconciliation and he demanded that plaintiff leave;
“5. That not only is respondent subjecting said children to an immoral environment, the nineteen year old girl friend with whom respondent resides is extremely cruel and physically abusive toward the minor children. On one occasion respondent’s girl friend bloodied the nose and bruised the eye of the eight year old child and on another occasion she hit the eight year old child so hard that she left blue and bruised marks on her body;
“6. In addition, this nineteen year old girl friend who resides with respondent uses illegal drugs, to-wit: marijuana, and the eight year old minor child involved is aware of this use and possession of the same. That the said in-resident girl friend has been arrested for the illegal possession of marijuana and driving a vehicle while under the influence of drugs;
“7. That the minor children involved are aware that respondent and his nineteen year old girl friend sleep together without the benefit of marriage. That this nineteen year old girl friend of respondent has become pregnant by the respondent on at least two occasions and has had abortions to terminate these pregnancies;
“8. That the minor children involved are unhappy living under the conditions and circumstances described above and it is detrimental to their welfare for them to continue to reside with respondent under these conditions and circumstances.”

In addition to praying for a change in custody of the children, the petition asked for a temporary restraining order enjoining the Appellant from removing the children from the physical custody of the Appellee and the jurisdiction of the Court. The restraining order was issued as prayed and a copy of it, along with a copy of the petition, was sent to the Appellant at his residence in Texas.

The Appellant was directed to appear and show cause by August 22, 1977, why the custody of the children should not be changed.

On August 17 the Appellant, in defiance of the injunction, came to Hamilton County, abducted the children and returned them to Texas. He did not appear on August 22 in response to the show cause order. A complaint for contempt was filed and the Court issued an attachment for him on August 23. A default judgment was entered against the Appellant September 6 on the petition to modify the original decree. The case was heard on September 16 and the Court entered an order changing the custody of the children from the Appellant to the Ap-pellee.

The order recites the Appellee had regained custody of the children and they were physically in Hamilton County on the day of the hearing. The order further recites: “That the evidence substantiates and the Court finds to be true allegations 1, 2, 3, 4, 5, 6, 7 and 8 contained in the complaint for modification, which set forth specifically the detailed change of circumstances.”

The Court also held it was to the manifest best interest of the children that the decree be modified.

On September 29 the Appellant filed a motion to dismiss the complaint for modification and injunctive relief. He made a special appearance through counsel urging upon the Court: (1) The court lacked jurisdiction over the subject matter, over the person of the appellant and the two minor children. (2) The process served on appellant was insufficient. (3) The complaint fails to state a cause of action upon which relief can be granted. He also filed a motion to vacate the (a) temporary restraining order, (b) order to show cause, (c) default judgment and (d) order of attachment for contempt.

The Court overruled the motions and, in doing so, said: “The Court is of the opinion that the aforesaid motions of Robert William Segelke should be denied because the said Robert William Segelke is in contempt of this Court for wilfully violating the temporary restraining order heretofore issued and he has not purged himself or sought to purge himself of said contempt; therefore, he should not be heard to complain before this Court at this time. The Court is of the opinion that the merits of the matters raised by the aforesaid motions should not be reached at this time because of the contempt status of the said Robert William Segelke and the Court specifically declines to rule on the merits of the motions until the said Robert William Segelke purges himself of the contempt or seeks to purge himself of the contempt in these proceedings.”

The Appellant has appealed from the order of the Court and assigned error. The Appellant says the action of the Court was error because: (1) The Court did not have jurisdiction of the subject matter or the appellant or the minor children. (2) The temporary restraining order should not have been issued because Appellee alleged no immediate and irreparable harm, loss or damage as required by T.R.C.P. 65.03(1). (3) He should not be held in contempt because the restraining order was not served as provided in Rule 65.03(4) and Rule 4.04, T.R.C.P. (4) The Court erred in denying relief because Appellant was in contempt.

We need to first address the question of whether or not the Court was justified in holding the Appellant in contempt. It is a well-settled rule in this jurisdiction that unless an injunction is void it must be obeyed until set aside by the court. In the ease of Aladdin Industries, Inc. v. Associated Transport, Inc., 45 Tenn.App. 329, 323 S.W.2d 222 (1958), in addressing the question of the obligation to obey an injunction, the court said, 323 S.W.2d at page 228: “Such an injunction, however erroneous, must be obeyed until set aside by the court granting it or by an appellate court.” In the same case the court held that before an injunction can be disregarded it must be “void,” not voidable. The failure of the pleadings to conform with Rule 65.03(1), T.R.C.P., did not make the injunction void. The Appellant was, accordingly, not at liberty to disregard it. As for the service of the injunction, the Appellant does not contend he had no knowledge of the existence of the restraining order. Rule 65.03(5), T.R. C.P., provides a restraining order becomes effective and binding upon a party at the time of service or when he is informed of the order, whichever is earlier.

We, therefore, hold it was not error for the Court to find Appellant in contempt.

Having found Appellant in contempt, was it error for the Court to deny him relief until he purged himself of contempt? We think not in most cases.

“He who seeks Equity must do Equity, and he who has done inequity shall not have Equity. Therefore, it is a general rule that a party who is in contempt will not be heard by the Court, when he wishes to make a motion or ask a favor;
. . His first duty is to purge his contempt, and the only steps he can take are to apply to the Court (1) to set aside the proceedings against him because they are irregular, and (2) to be discharged on the ground that he has purged himself of his contempt, by doing the act for the non-performance of which the contempt was incurred, and confessing judgment for the costs occasioned by his contumacy.” Gibson’s Suits in Chancery, 5th ed., Vol. 2, § 970, p. 195.

Also see Bradshaw v. Bradshaw, 23 Tenn.App. 359, 133 S.W.2d 617.

Although the court, as a general proposition, is justified in denying relief to a party who is in contempt, an exception is made where the welfare of children is at stake. The case of Williams v. Williams, 196 Tenn. 9, 263 S.W.2d 531 (1953), involved an application by a father to change the custody of their minor son. The petition alleged the child was grossly mistreated by the mother and her present husband. The mother defended on the grounds the father was behind in his alimony and in contempt. The trial court dismissed the petition on this ground. The Supreme Court reversed, saying:

“Now, in the present case, to repel the plaintiff without a hearing might jeopardize or interfere with the welfare of the minor child. Although the plaintiff, father, still is in contempt of court for non payment of alimony, yet we think that the paramount consideration is the welfare of the infant. See Smith v. Smith, 188 Tenn. 430, 220 S.W.2d 627, et seq., where it was again stated by this Court that the welfare of the infant child is uppermost in the mind of the Court.

On oral argument before this court, in the case at bar, it was conceded by the Appellee that a hearing on the merits of the issue of change in custody would be appropriate. We, therefore, remand the case on this issue alone.

This brings us to the insistence of the Appellant that the Court of Hamilton County is without jurisdiction to adjudicate this issue. He says that since his domicile, and that of the children, is in the State of Texas, jurisdiction to adjudicate this issue lies in the State of Texas, and we agree. However, we hasten to add we do not hold this jurisdiction to be exclusive.

We think the case of Coury v. State, 213 Tenn. 454, 374 S.W.2d 397 (1964) and Hines v. Hines, 220 Tenn. 437, 418 S.W.2d 253 (1965) are controlling. In the Hines case the parties were divorced in Knox County. The mother was awarded custody of the children. She moved with the children to Cincinnati, Ohio. The father subsequently filed a petition in the domestic relations court of Knox County seeking a change in custody. The mother filed a demurrer challenging the jurisdiction of Tennessee. The trial court overruled the demurrer and the Supreme Court reversed. The Court quoted from Coury v. State, supra, as follows:

“All of the authorities agree that the courts of the state in which the children and the parent to whom legal custody has been awarded are domiciled have jurisdiction to determine the manifest best interest of such children. 213 Tenn. at 464, 374 S.W.2d at 401.”

The Court also said:

“It must be remembered that the petition filed herein for change of custody alleges that the mother is
“ ‘ * * * presently making her home in Cincinnati, Ohio * * * and that the children, Gwendolyn and Wilma Jean, have been making their home with their said mother.’ ” ******
“Under these circumstances we think that the Courts of Ohio, in which state the children and the parent to whom legal custody has been awarded are domiciled, have jurisdiction to determine the manifest best interest of such children. The manifest best interest of children changes with changed conditions and if the father, in this case, can prove to the courts in Ohio that conditions have changed in such a manner that the interest of the children will be better served by changing custody, then that court, under all of the authorities, has jurisdiction to make this determination.
The problem always in custodial cases of this type is for the trying court to determine the best interest of the children, and, of course, the court where the children are living is in a much better position to make this determination than the courts in Tennessee would be in this case.”

The principal material, factual matter which distinguishes the Hines case from the case at bar is the physical presence of the children in Tennessee. However, we do not think this is controlling. Both the Hines case and the Coury case turned on the question of the domicile of the children and the parent having their custody. This view is supported by the case of Kenner v. Kenner, 139 Tenn. 211, 201 S.W. 779. We hold that jurisdiction as between the Appel-lee and the Appellant for the adjudication of an application to change the custody of the children is properly in the State of Texas. However, the circumstances in this case require us to do more than dismiss Appellee’s petition for change of custody. While it is the duty of our courts to refrain from taking jurisdiction of a matter where that jurisdiction properly lies within a sister-state, we have a greater duty to protect the welfare of minors physically present in our state. The touchstone of all litigation of this nature in this state and all of our sister-states is the welfare of the minor children. In the case of Ferreira v. Ferreira, 9 Cal.3d 824, 109 Cal.Rptr. 80, 512 P.2d 304, 307 (1973), the Supreme Court of California, in addressing itself to a similar problem as presented here, said:

“The court of the forum, presented with this situation, finds itself buffeted between the familiar rock of Scylla and the whirlpool of Charybdis. If the court, to protect the best interests of the child, reopens the custody question, it encourages parents to violate existing decrees in order to gain access to a more favorable forum; in effect, the court rewards a form of child stealing. Yet if the court refuses to reopen the question, it risks rendering an order disconsonant with the best interests of the child.
“We have neither been able to find a perfect answer to the dilemma nor to invent a solution of our own. We can do no better than submit a realistic resolution: the court of the forum should ordinarily refuse to reopen the question of the custody of a child whose custody is vested under an existing decree in a nonresident parent. If faced with charges supported by competent proof, as distinguished from conclusory assertions by the party seeking modification of an existing decree, that the return of the child to the nonresident parent will jeopardize or seriously endanger the child’s health or safety, however, the court should inquire into these charges and make whatever temporary custody order it finds necessary to protect the child. But even in cases in which the court grants temporary custody to the resident parent, it should not ordinarily resolve the merits of the controversy as to permanent custody; it may, on motion of the nonresident or on its own motion, stay those proceedings to await the determination of that matter by the court of the nonresident parent’s domicile.
* # * * * *
“The distinction between a dismissal and a stay does not merely lie in terminology. The staying court retains jurisdiction over the parties and the cause; it can render, enforce, and modify orders for temporary custody of the children; it can compel the foreign parent to cooperate in bringing about a fair and speedy hearing in the foreign forum; it can resume proceedings if the foreign action is unreasonably delayed or fails to reach a resolution on the merits. (Cf. Thomson v. Continental Ins. Co. (1967) 66 Cal.2d 738, 746, fn. 4, 59 Cal.Rptr. 101, 427 P.2d 765.) In short, the staying court can protect the welfare of the children and the interests of the California resident pending the final decision of the foreign court.”

In the case at bar we have serious charges by the Appellee in her petition of undesirable conditions in the home of the Appellant. We also have a finding by the Circuit Judge that these charges are supported by the evidence and they are true. He further found the welfare of the children required their custody be changed to the Appellee. Absent a bill of exceptions, the appellate court will conclusively presume the findings of the trial court are correct. Wilson v. Hafley, 189 Tenn. 598, 226 S.W.2d 308; Kyritsis v. Vieron, 53 Tenn.App. 336, 382 S.W.2d 553. We therefore conclude the welfare of the minor children requires they remain under the protection of the courts of this state until the case can be determined on its merits.

The default judgment relating to custody of the children is set aside and vacated.

The case is remanded for a hearing on the question of temporary custody and the entry of a decree in keeping with this opinion. The existing decree will be modified to conform with this opinion and will remain in force and effect until further determination by the Circuit Court and/or the Texas court. The order of the Trial Court is, in all other respects, affirmed.

The cost of this appeal is taxed one-half to the Appellee and one-half to the Appellant.

GODDARD and PRANKS, JJ., concur.


author: O’BRIEN, Judge.

text:
    Harold Ray MOULTRIE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 22, 1978.
    Certiorari Denied by Supreme Court May 7, 1979.
    Edward G. Thompson and Karen R. Williams, Memphis, for appellant.
    Brooks MeLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, Dan L. Newsom, Asst. Dist. Atty. Gen., Memphis, for appellee.
   O’BRIEN, Judge.

OPINION

This case comes to us on partial denial of a petition for post-conviction relief in the trial court.

Petitioner was convicted for third degree burglary and sentenced to life imprisonment as an habitual criminal.

Petitioner filed a pro se post-conviction petition under the authority of T.C.A. Sec. 23-1802, which relates to habeas corpus relief, alleging his deténtion as unconstitutional. Counsel was appointed in the trial court and an amended petition was filed alleging several complaints which will be dealt with fully in the course of this opinion. An evidentiary hearing was held. The trial court found, inter alia, that failure of appellate counsel to file a writ of certiorari to the Supreme Court from the judgment of this court operated to violate petitioner’s rights under the provisions of T.C.A. Sec. 40-2002. He also found that the failure of appellate counsel to keep defendant informed on the developments of the case demonstrated that the legal representation did not comport with the standards set forth in Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975).

As to the first proposition, we hold that the failure of appellate counsel to file a writ of certiorari to the Supreme Court was a statutory violation as opposed to a constitutional right. On March 10, 1976, the date on which this court affirmed appellant’s conviction, it was mandatory for appointed counsel to represent a defendant .

“upon any appeal from the judgment of such court which imposes a prison sentence.” See State v. Williams, 529 S.W.2d 714 (Tenn. 1975) and Moultrie v. State, 542 S.W.2d 835 (Tenn.Cr.App. 1976). A 1976 amendment to T.C.A. Sec. 40-2018, which became effective some eighteen days after this court affirmed petitioner’s conviction, relieved the requirement of appointed counsel to pursue an appeal through the second tier by applying to the Supreme Court for writ of certiorari. His Honor the trial judge was eminently correct in finding that petitioner’s statutory rights were violated by failure of his appointed appellate counsel to file a petition for certiorari in the Supreme Court as well as a constitutional violation under the authority of Baxter v. Rose, supra, in his failure to keep his client informed on the development of the case at the appellate level. We affirm the judgment in that respect.

The post-conviction petition makes several alternative requests for original affirmative relief. This is a court of appeals and errors, with jurisdiction exclusively confined to appellate relief. (T.C.A. Sec. 16-448). In order to expedite disposition of this matter we will consider petitioner’s prayer for affirmative relief as additional assignments of error on appeal and proceed to their resolution. It is requested we review our initial affirmance of petitioner’s trial court conviction which occurred on March 10, 1976. The only method by which we might do this would be on a petition to rehear which must be filed within fifteen days of the judgment.

It is requested we vacate and reinstate our judgment of March 10, 1976, which we are pleased to do.

It is further requested, in the event we vacate and reinstate our original judgment, that petitioner be allowed a time to review the record in this case and file new assignments of error. This is another matter beyond our jurisdiction. An individual is allowed forty-five days from the entry of our final judgment in which to file a petition for certiorari in the Supreme Court. (Supreme Court Rule 11). Any extension of time requested must be on application to the Supreme Court.

We now go to the other assignments of error which we find were fairly enough set forth in the post-conviction petitions and amended petitions to warrant consideration, the fact that the trial court made no findings on some of these issues notwithstanding.

Several charges are made that trial counsel was ineffective to the degree that petitioner was deprived of his constitutional right to counsel. He says that counsel did not base an application for continuance upon statutory authority which existed at the time thus depriving him of needed time to prepare for trial.

The original indictment against petitioner was returned on July 12, 1974. He was represented by appointed counsel for a long period of time and various pre-trial motions were filed based on this indictment. On February 25, 1975, a new indictment issued due to constitutional infirmities in the grand jury venire which had returned the original indictment. The second indictment was identical to the first. Petitioner averred at his post-conviction hearing that he did not receive a copy of the second indictment until two days before his trial. The original indictment was ultimately dismissed approximately one month after trial.

The trial judge made a very cursory finding of fact in reference to this assignment. There is no indication in this record of any prejudice accruing to the defendant as the result of the return of the new indictment. We are satisfied petitioner understood the charges against him and that he was adequately represented by counsel during the time in question. We do not find any actual violation of T.C.A. Sec. 40-2005. In any event our courts have held that the legislature intended that a delay in trial only applied where indictment or presentment and arrest occurred substantially at the same time. Hood v. State, 187 Tenn. 501, 216 S.W.2d 14. Where no prejudice has been shown by failure to comply with this section, reversal is not warranted. See Neal v. State, 206 Tenn. 492, 334 S.W.2d 731.

Petitioner says his trial counsel was ineffective because he did not raise an objection at trial, or in his motion for new trial, because the trial judge had presided on a previous post-conviction relief hearing in which he was involved.

It was also brought out in the record that the trial judge had at some time in the past been an assistant attorney general who had issued a subpoena in an unrelated trial of petitioner. The record clearly shows that he had been convicted of at least eleven prior offenses in the criminal courts of Shelby County. It would have been almost an impossibility for the trial judge, who had served in one capacity or another in those courts, to have not come into contact with the defendant in some matter or other. Defendant has failed to show in any manner whatsoever that he was prejudiced in any way by the fact that the judge presiding at his trial had been involved with some of his previous cases. In our affirmance of defendant’s original conviction we dealt with this question in part, and we now hold that the assignment is without merit and overrule it in its entirety.

Petitioner says on his original appeal his appellate counsel submitted thirteen assignments of error but, to his great prejudice, only briefed and argued two of those.

This court did review these various un-briefed assignments of error at the time his original conviction was affirmed and found them to be without merit. Since it is our intention to vacate and reinstate our original judgment in this case present counsel will have the opportunity to submit these matters anew in the Supreme Court in the event certiorari is granted.

It is said that appellate counsel failed in his argument on the voir dire issue to develop an alternate method of conducting a voir dire of the jury considering an habitual criminal charge. It seems to be the argument that after the jury returned a guilty verdict on the first count of the indictment they should have been further voir dired on the habitual criminal statute to uncover prejudices or inability to follow the law as outlined in T.C.A. Sec. 40-2801, et seq.

The habitual criminal statutes are explicit. The only function of the jury in such cases is to hear proof on prior convictions of a defendant, upon charges constituting felonies under the statute, and to determine if a defendant’s record of recidivism warrants enhanced punishment as prescribed. The statutes themselves fix the enhanced punishment at life in the penitentiary. The jury does not have latitude to consider the matter in any other light. There is no opportunity to assert prejudices or entertain any predilections to avoid the law. The assignment is without merit and is overruled.

We overrule all assignments except those based on the findings of the trial judge that petitioner was prejudiced by counsel’s failure to apply for a writ of certiorari from the judgment of this court, and his failure to keep petitioner fully advised on his right to further appellate review from the judgment of this court. Accordingly, the prior judgment of this court in this case is hereby vacated and reinstated as of this date for the purpose of reestablishing the statutory time to file a petition for certiorari in the Supreme Court. The judgment of the trial court is in all otherwise affirmed.

DAUGHTREY and BYERS, JJ., concur.


author: CORNELIUS, Judge.

text:
    James M. MOSS, alias, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 27, 1978.
    Certiorari Denied by Supreme Court May 7, 1979.
    Thomas M. McAdams, Knoxville, for appellant.
    William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., John W. Gill, Jr., Asst. Dist. Atty. Gen., Knoxville, for appellee.
   OPINION

CORNELIUS, Judge.

On December 5, 1977, in Knox County, Tennessee, the appellant was arrested and charged with driving a motor vehicle while under the influence of an intoxicant. The warrant shows the trial set for January 6, 1978, at 1:00 p. m. The warrant lists the judgment of conviction as, “This 5th day of Dec. 1977, J. K. Watson, Judge, General Sessions Court”. The appellant was fined $50.00 and sentenced to eleven months and twenty-nine days in the workhouse. To the side of the warrant is written, “to spend 11 mos.-29 days on charge as of 3-21-78 per order of Judge Creekmore”. Over the date of December 5, 1977, has been written the date of March 21, 1978. There is also a notation at the top of the warrant, “appealed 3/31/78”. A waiver was signed by the appellant in keeping with § 40-423 T.C.A. There is no controversy the above judgment was suspended by Judge Watson on December 5, 1977.

On or about February 17, 1978, in Knox County, the appellant was again arrested and charged with driving a motor vehicle while under the influence of an intoxicant and violating the driver’s license law. He signed a waiver, pleaded not guilty, and was tried and convicted by Judge Creek-more. He appealed his convictions on the February 17th charges. We are not concerned with these appeals except that they caused Judge Creekmore to revoke the suspended sentence.

The appellant’s position is that he is not guilty of the February 17th offenses and he seeks a hearing de novo in the Criminal Court of Knox County. Defense counsel clearly stated:

“On the basis of that finding of guilt, his probation from the first one is revoked. Now, our contention is that D.W.I. — the second one will be tried de novo in this court, and the no driver’s license will be tried de novo in this court. And at the same time, the issue of whether the probation should be revoked will be tried de novo in this court. Its not a question of reviewing his discretion. You will hear the . . . the probation was revoked from the facts of the second D:W.I. and on the conviction . . ..” (B.E. at page 7, line 3 through 11)
“We had no objection with the original thing and so wouldn’t appeal from that, but when it was revoked we had the objection.” (B.E. at page 7, line 17, 18 and 19)

On June 20, 1978, the Judge of Division I, Criminal Court for Knox County, dismissed the appeal on the revocation for the lack of jurisdiction. The appellant excepted and was granted an appeal. The trial judge would not set an appearance bond because of the lack of jurisdiction.

Did the appellant have the right to appeal the revocation of his suspended sentence? Did the Criminal Court of Knox-County have jurisdiction to hear the appeal? We think the answer is “yes” to both questions.

The Court of General Sessions statutory authority for suspending a sentence, as well as the revocation thereof, is § 16-1104 T.C.A. (2nd para.)

“They shall also have the same jurisdiction relative to the suspension and revocation of sentences imposed by them as that conferred upon all trial judges by Chapter 29, of title 40 of this Code.”

It is conceded appellant accepted the suspended sentence, and the revocation by Judge Creekmore was procedurally acceptable. The factual basis for the revocation has been continually contested. The Court of General Sessions found the issues against the appellant. He was apparently granted an appeal under § 40-426 T.C.A. This was by statute, to:

“. . the next term of the Court having criminal jurisdiction in said county .. . .” “Such appeal shall be tried in said court (Criminal Court of Knox County) . . , upon the original warrant issued against such person, by the judge without a jury, unless defendant demands a jury.”

The State insists the jurisdiction to suspend and revoke sentences does not grant the appellant the right to appeal relying upon Jefferson v. State, 222 Tenn. 413, 436 S.W.2d 437 and Atchley v. State, 176 Tenn. 514, 144 S.W.2d 748. In Jefferson v. State, supra, the court was dealing with a bond hearing in a capital case and a demurrer filed under § 40-1205 T.C.A. The right to bail enactments had failed to set out a method whereby the action of any court in denying bail could be reviewed by an appellate court (in Jefferson’s case, the Criminal Court). The act establishing the Court of General Sessions does provide for an appellate review.

The State further insists that since the act authorizing Judges of Court of General Sessions to suspend and revoke sentences is in derogation of the common law, it must be strictly construed so as to confer only such powers as are plainly within the expressed terms or necessary implications of the act. Atchley v. State, 176 Tenn. 514, 144 S.W.2d 748. We do not agree with the State’s position that § 16-1104 T.C.A., granting jurisdiction to the Court of General Sessions to suspend and revoke sentences, does not, under the Atchley test, grant a right to the defendant to appeal. Section 16-1104 expressly grants the same jurisdiction as trial judges under Chapter 29 of Title 40 of the Code. Since the granting of this jurisdiction to the trial judges, by Chapter 76, Public Acts 1931, the power and authority of the judge has been reviewable to the Supreme Court, as in other criminal cases. (§ 40-2907)

Jurisdiction is defined as:

“A Term of large and comprehensive import, and embraces every kind of judicial action.”
“It is the authority by which courts and judicial officers takes cognizance of and decide cases.” Black’s Law Dictionary, 4th Ed.

It is illogical to allow an appellate review of a decision in a trial court and not allow an equivalent review in a court exercising the “same jurisdiction”. A statute will not be construed to alter the common law any further than the act expressly declares or than is necessarily implied considering the subject matter. Lillienkamp v. Rippetoe, 133 Tenn. 57, 179 S.W. 628 citing Parlow v. Turner, 132 Tenn. 339, 178 S.W. 766. The right to an appeal “lay implicitly within the clause quoted.” Parlow v. Turner, supra.

The State cites Practy v. State, Tenn.Cr. App., 525 S.W.2d 677, as authority supporting the appellant’s lack of a right to appeal. Practy concerned a Criminal Court case. It did not involve the Court of General Sessions. An argument was made that a preliminary hearing on his revocation petition could have been held in the Court of General Sessions. This was said to be untenable. The trial judge in Practy was vested with exclusive jurisdiction — subject to Practy’s right to appeal to the Supreme Court impliedly by way of the Court of Criminal Appeals. It is to be noted, this appellant and Practy received the same imprisonment sentence of eleven months and twenty-nine days — both had their sentence suspended— both were revoked for new offenses. On Practy’s appeal, this court considered Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), said:

“Beyond that, the probationer’s rights are further protected by his right to have any adverse decision reviewed by this court and the Supreme Court of Tennessee. Thus, the statutorily mandated proceedings in this State for revocation of a probationer’s suspended sentence and probation unquestionably more than comply with the mere minimal requirements stated in Morrissey and Gagnon on which plaintiff in error Practy relies. In Mor-rissey the court said termination of the conditional liberty of a parolee ‘calls for some orderly process, however informal’. (92 S.Ct. 2601) This State’s procedure for revocation of sentence suspension and probation is an orderly one affording a probationer full protection of his constitutional right to due process.” Practy v. State, supra.

We have reviewed State v. Bockman, 139 Tenn. 422, 201 S.W. 741 (1918). There is a difference between the statutes which we are here concerned as to the statute creating the juvenile court of Overton County. Wade v. Murry, 34 Tenn. 50, cited in Bockman, treats the subject of a Chancellor being designated under a statute to try contested elections. The court said, in disallowing an appeal in error, it was very erroneously assumed that the jurisdiction was conferred upon the Chancellor in his capacity of Judge of a Court of Chancery. In the present case, the jurisdiction is expressly conferred upon the judges of the Court of General Sessions as a part of their jurisdiction — powers—Section 16-1104 T.C.A.

The Court of General Sessions was created in 1937 in Davidson and Montgomery counties and created in Shelby County in 1941. In 1959, the Legislature created a statewide system of General Sessions Courts. The act expressly provided for an appeal from an adverse decision. (Chapter 105, Public Acts of 1959, Sections 4 and 5.)

The jurisdiction of the Courts of General Sessions has been continually enlarged. It has relieved the Circuit and Criminal Courts of this State unknown man-hours. To say due process and equal protection of the law is one thing within the jurisdiction of the Criminal Court and another thing in the Court of General Sessions makes every lawyer handling a criminal case in Court of General Sessions incompetent counsel, if his client has any prospects for a suspended sentence. If there is a likelihood of revocation, he certainly should enter his plea in a trial court where his client may appeal possible abuse of discretion by the judge.

We think the amendment to Section 16-1104 gave the appellant a right to appeal the revocation of his suspended sentence as in other criminal cases. That is, if he is aggrieved by the judgment revoking his suspended sentence he may appeal that judgment “to the next term of the court having criminal jurisdiction in that county”, by authority of Section 40-426.

We reverse the judgment of the Criminal Court of Knox County dismissing the appellant’s appeal and remand for further proceeding consistent herewith.

DAUGHTREY and BYERS, JJ., concur.


author: DUNCAN, Judge.

text:
    Robin Lee SCHULTZ, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 25, 1979.
    Certiorari Denied by Supreme Court May 7, 1979.

      Harry P. Ogden, Knoxville, for appellant.
    William M. Leech, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Kim A. Tollison and Randall E. Nichols, Asst. Dist. Attys. Gen., Knoxville, for appellee.
   DUNCAN, Judge.

OPINION

The appellant-defendant, Robin Lee Schultz, was indicted along with James Beeler and Jimmy Inman for the armed-robbery of Robert Ruth, an employee of a Mini-Mart store in Knoxville. The jury was unable to reach a verdict as to Beeler and Inman, but found Schultz guilty of robbery by the use of a deadly weapon. He received a penitentiary sentence of 25 years.

The defendant contests the evidence, complains about an alleged illegal search and seizure and argues that he was prejudiced by the attorney general’s argument to the jury. We find no reversible errors in this record and affirm the judgment of the trial court.

Shortly after 2:00 a. m. on January 8,1978, a man wearing blue jeans and a red and black plaid jacket entered the Mini-Mart store and robbed Mr. Ruth of the sum of $101. The robbery was accomplished by the use of a .45 automatic pistol. Mr. Ruth positively identified the defendant as the person who had robbed him. At about the time of the robbery, Mr. and Mrs. Richard Varner, who lived nearby, had seen a suspicious person behind the store. Initially, a person had gotten out of an automobile, then after the vehicle circled the block, this individual got back in the vehicle. Mrs. Varner reported this information to the police, and within a few minutes a vehicle matching the description furnished by Mrs. Varner was stopped by police officers. The defendant was a passenger in the car, and after he and the other two occupants of the car had been arrested and placed in the police cruiser, the officers found a red and black plaid jacket in the back seat of the car and located on the floorboard on the passenger’s side of the car a .45 automatic pistol. Clearly, this evidence along with Mr. Ruth’s positive identification of the defendant as the robber warranted the guilty verdict returned by the jury. In fact, aside from any other evidence in the case, the jury, if they so chose, could have returned a verdict against the defendant based solely upon the identification testimony offered by Mr. Ruth. The defendant has not carried his burden to show that the evidence preponderates against his guilt and in favor of his innocence. The assignment on the evidence is without merit. Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385 (1960).

Likewise, we find the defendant’s complaint about the search to be without merit. The trial court explored this matter at a jury-out hearing, at which the evidence showed that Mr. Ruth, immediately following the robbery, notified the police department of the details of the robbery. He furnished a general description of the robber and specifically described his clothing and the type of weapon that had been used. Mrs. Joyce Varner, at about the time of the robbery, had telephoned the police about the suspicious individual that she had seen behind the Mini-Mart store, and had furnished them with a description of the vehicle which she had seen him enter.

Police Officer Joe Fox testified that he received a radio dispatch about the robbery, along with a general description of the robber, including a description of his clothing and hair, and a description of the weapon used. Approximately one minute later, Officer Fox received another radio message which gave him the description of the suspect’s vehicle that had been furnished to the police by Mrs. Varner., Armed with the foregoing information, Officer Fox and his fellow officer, Carl McCarter, spotted a car within seven minutes which fit the description they had been furnished. They stopped the vehicle, found the defendant in it as a passenger, arrested him and the two other occupants, and then observed through the car window a red and black plaid jacket on the backseat and recognized it as fitting the description of the one worn by the robber. Thereafter, the vehicle was searched and among other things, a fully loaded .45 automatic pistol wrapped in a raincoat was found on the floorboard on the passenger’s side.

Unquestionably, the officers had positive information that a felony had been committed, and they had more than reasonable cause to believe that one or more of the occupants of the vehicle had committed it. Thus, probable cause was present to arrest the defendant and to conduct the search that was made. T.C.A. § 40-803(3); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Jones v. State, 161 Tenn. 370, 33 S.W.2d 59 (1930).

We find the search conducted in this case to have been a lawful search, and the trial court did not err in allowing the jacket and pistol to be admitted into evidence.

In connection with this assignment, the State has filed a supplemental brief insisting that the defendant lacks standing to challenge this search and cites the recent United States Supreme Court decision in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) to support its position. The defendant, in reply thereto, correctly argues that the State’s supplemental brief was filed without authority. Nevertheless, we were aware of the Rakas case from our own independent research prior to the filing of the State’s supplemental brief. We deem it appropriate to comment on this case where the Supreme Court abandoned the “legitimately on premises” rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). In Ra-kas, the petitioners were passengers in a car in which they asserted neither a proprietary nor a possessory interest; nor did they assert any interest in the property seized from the car. The court held that under those circumstances the petitioners lacked standing to challenge the search, noting that “the phrase ‘legitimately on premises’ coined in Jones creates too broad a gauge for measurement of Fourth Amendment rights.” See 439 U.S. at 142, 99 S.Ct. at 429.

In Rakas, the court reiterated the rules that “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be asserted vicariously,” and that, “a person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” See at 133, 99 S.Ct. at 425.

In the present case, the defendant Schultz made no claim of ownership or other interest in the automobile searched. Likewise, he made no assertion that he owned or had any possessory rights to the items seized, and made no showing that he had any legitimate expectation of privacy in the areas searched. Thus, even though we have found probable cause was present in this case, we must also conclude that under Rakas, the defendant lacked standing to contest the search in the first instance.

In his final assignment of error, the defendant complains of the attorney general’s closing argument.

Counsel for one of Schultz’s co-defendants, in his summation to the jury, argued that none of the proceeds of the robbery had been found in the vehicle, and insisted that if the defendants had actually been guilty, it would have been logical for them to have kept the relatively small amount of cash and hidden the gun.

In attempting to respond to this argument of defense counsel, the attorney general argued, “Why didn’t they throw the gun away? There are other Mini-Marts in Knox County.”

In our opinion, this comment by the attorney general was improper, but we hold that it does not rise to the level of reversible error. Under the facts and circumstances in this case, this isolated comment by the attorney general was harmless. T.C.A. § 27 — 117. The evidence of the defendant’s guilt is conclusive, and this comment did not affect the verdict of the jury to the defendant’s prejudice. Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758 (1965); Judge v. State, 539 S.W.2d 340 (Tenn.Cr.App.1976).

We overrule the defendant’s assignments of error.

Affirmed.

WALKER and DAUGHTREY, JJ., concur.


author: DAUGHTREY, Judge.

text:
    Claudius I. VERMILYE, Jr., Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 26, 1979.
    Certiorari Denied by Supreme Court July 2, 1979.

      Philip M. Carden, Nashville, Joe S. Bean, Joe R. Hickerson, and C. Edward Murray, Winchester, for appellant.
    William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., J. William Pope, Jr., Dist. Atty. Gen., Pikeville, Mike P. Lynch, Asst. Dist. Atty. Gen., Winchester, for appellee.
   DAUGHTREY, Judge.

OPINION

The defendant-appellant, Claudius I. Ver-milye, Jr., was convicted of three charges of crime against nature and five charges of aiding and abetting crime against nature. The jury imposed sentences of five to ten years on the first three counts, and ten to fifteen years on the remaining counts. The trial judge divided the eight sentences into three groups, ordering those in each group to be served consecutively to the others, for an effective total sentence of not less than 25 nor more than 40 years imprisonment. The defendant now appeals, raising numerous assignments of error, the most significant of which challenge (1) the trial court’s failure to suppress evidence seized from the defendant’s home, (2) the Court’s denial of the defendant’s motion for a continuance, (3) the sufficiency of the convicting evidence, (4) the propriety of the prosecutor’s closing argument, (5) the correctness of the jury instructions, and (6) the validity of the consecutive sentences imposed by the trial judge. Moreover, the defendant insists that the combination of these errors together with the highly sensational, nationally publicized events surrounding the trial produced an atmosphere which deprived him of a fair trial and violated his right to due process of law. After a careful study of the record on appeal, we must disagree. ■

There can be no doubt that the facts of the case were sensational in nature. The State proved to the jury’s satisfaction that the defendant, a seminary graduate and ordained Episcopal priest, had been running Boys Farm, Inc., supposedly a home for wayward and homeless boys, for some four or five years prior to his arrest. The home was not church-sponsored or related and seems to have been maintained largely from funds raised by Vermilye from the sale of photographs and slides of the children to some 200 or more “sponsors.” These photographs depicted the boys (most of whom were eleven to sixteen years of age when photographed) posed in the nude and engaged in various acts of simulated or actual fellatio and sodomy. This situation apparently came to light when local authorities received information that solicitations for contributions and pictures originating from Vermilye’s Boys’ Farm had appeared in various homosexual publications and pornographic magazines, and that similar evidence had been uncovered elsewhere as a result of investigations into an alleged national child pornography ring. An investigator from the local District Attorney’s Office secured a search warrant and, as a result of its execution, seized various items from the Farm, including developed and undeveloped photos of the residents, correspondence between Vermilye and his “sponsors” and between the boys and the “sponsors,” and card catalogs containing several hundred names of past and present financial contributors from across the country. T.B.I. agents and local investigators conducted out-of-state interviews with a large number of “sponsors,” several of whom ultimately testified at trial in exchange for a grant of immunity from prosecution in Tennessee.

These witnesses introduced several hundred photographs and various pieces of correspondence, some of it lurid in its content, as exhibits to their testimony. They also told of personal visits to the Farm when they would spend the night with individual residents, engaging in various homosexual acts with the youngsters. Some of these sexual encounters were photographed by the sponsors; others were photographed by the defendant in the sponsors’ presence.

Several of the ex-residents of the Farm also testified for the State. The boys described monthly photography sessions, during which the defendant would pose them in various homosexual activities and then photograph them, mailing out sets of pictures developed by Vermilye (sometimes with the boys’ assistance) in a dark room located in the attic of the Farm’s A-frame residence. These photographs would be “purchased” by the boys’ sponsors at advertised prices, which were normally collected in addition to regular monthly contributions.

From the record it appears that some of these boys were placed at Boys’ Farm by various courts and welfare agencies; others were “placed” there by their parents. In all cases, according to those who testified at trial, their homosexual activities were wholly consensual in nature. Not one of them testified to the use of force on Vermilye’s part, although one child said that it was understood that participation in the photography sessions and in the sponsors’ visits was necessary if he wanted to continue living at the Farm. Several of the boys testified to homosexual acts committed with the defendant, but none of these was ever photographed. As Vermilye explained to a patron of the Farm, such pictures “would be too hard to explain to the Bishop.”

The defendant testified at trial and denied knowledge of or any responsibility for most of the photographs and slides introduced by the State. He said that he had taken a few photographs of the individual residents, posed nude, to supply an artist who needed them for life drawings, and to use in “sublimation” counselling with his homosexual “clients,” whom he was trying to help stay “closeted” by fueling their homosexual fantasies with nude pictures of his own son, as well as residents of the Farm. He disclaimed responsibility for all other photographs, insisting that the Farm had been infiltrated by agents of a national “child porn” ring. He said that the boys themselves had developed and mailed many of the photographs at issue. Vermilye attempted to explain the rather lurid nature of correspondence found on his desk and mailed by him to various sponsors as the result of therapeutic “role-playing” with clients. He offered the testimony of one of the former residents of the Farm to corroborate his own testimony, and he presented two character witnesses.

We deal first with the defendant’s contention that the search and seizure of items from the Farm was illegal because of a void warrant. This assertion is not borne out by the record. The warrant contains a careful and detailed description of the premises to be searched and the kinds of items to be seized (“evidence of such crimes [T.C.A. § 39-707 and § 37-254] including photographs and negatives of photographs, movie films and negatives thereof, photographes [sic] and film development equipment, records and correspondence to ‘patrons’ evidencing the forwarding or mailing of pictures depicting homosexual acts between said minors including fellatio and sodomy, and all records, journals, and correspondence evidencing moni-tary [sic] charges for such films, photographs, and other unlawful ‘services’ provided to such patrons or sponsors by the said defendant. . . . ”), and there is no justification for branding it a “general warrant.” There is, of course, no prohibition against the seizure of other property not specifically mentioned in a valid warrant if it is relevant to the crime suggested by the warrant. Armstrong v. State, 548 S.W.2d 334 (Tenn.Cr.App.1976); Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976).

Nor do we conclude that the affidavit fails to establish probable cause, as the defendant alleges, or that it is deficient in any other material respect. The officer’s affidavit was based on information provided by out-of-state law enforcement officials and by a named informant who had formerly been a resident at Boys’ Farm. The details provided in the affidavit are more than ample to establish circumstances upon which to consider both the information and the informant reliable. See generally Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); State v. Little, 560 S.W.2d 403 (Tenn.1978). And the facts alleged are clearly sufficient to establish probable cause.

Contrary to the defendant’s contention, there is no evidence in the record to suggest illegal execution of this warrant. Undoubtedly this stems from the fact that the issue was not raised and fully explored in the trial court and thus an adequate record was not developed on this point.

The defendant’s assignment of error by which he alleges that his motion for continuance was improperly overruled cannot be reviewed on appeal. The defendant insists that the trial should have been continued to allow the effects of widespread pretrial publicity to dissipate. However, the voir dire of the jury is not included in the record, and we must therefore presume that the jury actually selected (and accepted by the defendant) was properly chosen and that it was composed of fair and impartial jurors.

Alternatively, the motion to continue was based on the absence of a defense witness who was “away in the military” and whom defense counsel said he had not had time to subpoena. However, the motion was not accompanied by an affidavit specifying the substance of the missing witness’s proposed testimony, as required by T.C.A. § 19 — 413, nor was there any representation concerning it. We therefore conclude that there was no abuse of discretion in the trial court’s decision to deny a continuance. Woods v. State, 552 S.W.2d 782 (Tenn.Cr.App.1977); Maxwell v. State, 501 S.W.2d 577 (Tenn.Cr.App.1973).

The defendant next complains that the only proof of individual acts charged in the indictments was supplied by the uncorroborated testimony of admitted accomplices, citing Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811 (1959). We can only conclude, after a study of the record, that each of the offenses for which the defendant was convicted was massively corroborated by both direct and circumstantial evidence. It follows that the trial court committed no error in failing to direct a verdict of acquittal and in overruling the defendant’s motion for a new trial.

The defendant complains of comments made by the prosecutor during closing argument, concerning the existence of a child “pornography ring” or “chicken game.” The record fails to disclose that an objection was made to this comment, and review on appeal is therefore foreclosed. Rye v. State, 532 S.W.2d 941 (Tenn.Cr.App.1975). But even if an appropriate objection had been entered, any error in this regard would have to be considered harmless, given the overwhelming proof of the defendant’s guilt in this case.

We have closely reviewed the jury instructions given by the trial court, especially those now assailed by the defendant concerning aiding and abetting, presence, corroboration of accomplice testimony, lesser included offenses, and the court’s definition of the specific crimes against nature involved in this case. In each instance the charge constitutes an essentially correct statement of Tennessee law. Furthermore, there were no special requests submitted by the defendant. It follows that there was no error in connection with these instructions. Taylor v. State, 544 S.W.2d 897 (Tenn.Cr.App.1976); Turner v. State, 188 Tenn. 312, 219 S.W.2d 188 (1949). The defendant’s allegation that the crime against nature statute, T.C.A. § 39-707, is unconstitutional provides no basis for an attack on the jury charge, since this question has been previously determined by the courts and the statute has been found to be valid. Young v. State, 531 S.W.2d 560 (Tenn.1975); Stephens v. State, 489 S.W.2d 542 (Tenn.Cr.App.1972); Rose v. Locke, 432 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). Finally, the trial judge committed no error in failing to charge on contributing to the delinquency of a minor, having directed a verdict on this offense prior to submission of the case to the jury.

The defendant next contends that the trial court violated the rule in Gray v. State, 538 S.W.2d 391 (Tenn.1976), by ordering some of the sentences imposed by the jury to be served consecutively. However, the record amply demonstrates, as the trial judge noted, a four or five year course of dealing by the defendant that makes him a persistent and repeated offender, who derived most (if not all) of his livelihood from the sexual exploitation of these children. The pervasiveness of the illegal behavior in this case is much broader than that in Bethany v. State, 565 S.W.2d 900 (Tenn.Cr.App.1978), and under the authority of the opinion in that case, we have no hesitation in upholding the method of sentencing employed here.

Finally, the defendant alleges that the record as a whole demonstrates that he was deprived of a fair trial. We have examined the dozen or so examples cited by defense counsel in support of this contention. In virtually every instance, there was no objection to the questioned procedure at trial and no related assignment in the motion for a new trial. We conclude that the complaints, taken individually and as a whole, fail to prove the denial of a fair trial. As noted above, there can be little doubt about the sensational nature of the subject matter of this trial; as the trial judge concluded with a grim seriousness detectable even on the written record, “We are not dealing in daisies.” Nevertheless, it appears that the trial was concluded in as fair and businesslike a fashion as could be expected, given the nature of the charges and the proof. As the trial judge also noted, the defendant’s trial could not and did not take place in a vacuum. We find that the court made every reasonable effort to see that the defendant received a fair trial, and we uphold the resulting conviction.

The judgment of the trial court is affirmed.

WALKER and CORNELIUS, JJ., concur.


text:
    Wanda SHELL, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 27, 1979.
    Certiorari Denied by Supreme Court May 29, 1979.

      James M. Crain, Knoxville, for appellant.
    William M. Leech, Jr., Atty. Gen., William W. Hunt, III, Asst. Atty. Gen., Nashville, John W. Gill, Asst. Dist. Atty. Gen., Knoxville, for appellee.
   OPINION

DAUGHTREY, Judge.

The defendant-appellant, Wanda Shell, was charged and convicted of violating T.C.A. § 39-4225, which provides that “[i]f a contract of loan for use, or of letting and hiring or other bailment or agency, be used merely as the means of procuring possession of property with an intent to make a fraudulent appropriation at the time, it is larceny.” By their verdict, the jury found the defendant guilty of larceny in an amount exceeding $100.00 and set a sentence of four to eight years imprisonment. On appeal, Shell challenges (1) the sufficiency of the convicting evidence, (2) the trial court’s failure to dismiss the indictment for lack of certainty, (3) the admissibility of certain evidence at trial, (4) the propriety of the district attorney’s conduct, and (5) the trial judge’s failure to give a requested jury instruction. We find no reversible error, and, accordingly, we affirm the conviction.

The State established at trial that during the period charged in the indictment, Wanda Shell was an employee of the Knox County Welfare Department, a short-term “emergency” agency not connected with the State Department of Welfare. The county welfare office provides temporary assistance to those in need, generally in the form of small payments for utility bills, rent, gasoline, food, clothes, etc. When the pro-speetive welfare client is found to be ineligible for county funds, the welfare worker assigned to the case can refer the client to private charitable agencies, including local churches. One such participating church was the Fountain City United Methodist Church, which made frequent donations from its Pastor’s Discretionary Fund upon request from local welfare workers.

An official of the Fountain City Church testified that whenever possible church donations were handled by check made payable and mailed directly to the utility company or landlord involved. However, Ms. Shell had told church officials that the local food stamp office would not accept checks, so they set up a procedure whereby the church would make checks payable directly to her, marking the purpose of the donation on the face of the check, e. g. “Kenneth Gordon — Food Stamps.” A list of such checks was introduced at trial; it contained the names of some 40 intended recipients, and represented a total expenditure by the Fountain City Church of over $800.00. A supervisor in the county welfare office, Vicki Swan, was permitted to testify from department files that the great majority of these 40 persons had not requested assistance in the purchase of food stamps; indeed, most of them were already food stamp recipients, many at no cost to themselves (“zero purchase”). When a welfare client needed food, the welfare worker usually issued a voucher which could be presented at a certain local grocery store. The information from relevant department records introduced at trial reflected only one request for food stamp assistance, on that occasion the welfare department wrote a check directly to the food stamp office on behalf of the client.

Several of the 40 welfare recipients whose names appeared on the Fountain City Church list testified for the State at trial. None of them had requested money to purchase food stamps, nor had they received any cash from the defendant for that or any other purpose. The total amount received by Ms. Shell from the church, purportedly for the use of these individual clients, was some $112.00. (A witness called by the defendant testified that she had received money from Shell for the purchase of food stamps, but the name and address of this witness does not match the name and address of the listed person whom she claimed to be.)

In her own defense, Shell testified that she often operated outside department procedures in attempting to help those not otherwise qualified for assistance. She claimed no memory of her dealings with the particular individuals who testified for the State.

The defendant now concedes that there was sufficient evidence to convict of petit larceny, but claims that the State failed to rebut every hypothesis except her guilt with regard to two of the individual welfare clients who testified at trial. Shell insists that the sum of $112.00 must be reduced by the amount of the checks made out to her for their benefit, resulting in a total amount of less than $100.00. We find no merit to this argument. The question was one for the jury to determine, and the evidence does not preponderate against their verdict, as would be necessary to justify a reversal on appeal. State v. Hatchett, 560 S.W.2d 627 (Tenn.1978). We therefore overrule the related assignments of error.

The defendant next challenges the sufficiency of the indictment in this case. That instrument charged that Shell

unlawfully, feloniously and fraudulently by agency and bailment did obtain a quantity of good and lawful money . exceeding the value of $100.00 . [by] merely using said agency and bailment as a means of procuring possession of the said money from the said Fountain City United Methodist Church, with the intent ... to make a fraudulent appropriation at that time and she . did take, convert and appropriate said money to her own use and benefit, as part of a continuous larcenous scheme, in violation of T.C.A. § 39-4225. .

The defendant alleges that the indictment is not sufficiently certain because it does not charge the individual transactions that were later proven by the State. However, the law of Tennessee does not require that the indictment furnish notice of individual acts of larceny “where it appears that successive takings are actuated by a single, continuing, criminal impulse or intent or are pursuant to the execution of a general larcenous scheme.” Nelson v. State, 208 Tenn. 179, 344 S.W.2d 540, 542 (1960). In such a case, according to the Nelson court, the “successive takings constitute a single larceny, regardless of the extent of the time which may have elapsed between each taking,” and the indictment need not charge the individual acts, but only the aggregate amount involved. Id., 344 S.W.2d at 542, 544. It is abundantly clear from this record that such a continuing larcenous scheme was both charged and proved to the jury’s satisfaction. Nor was there any basis upon which to grant the defendant’s motion for a bill of particulars, that procedure being unknown to Tennessee law at the time of this trial. There was no error in connection with the indictment, and the related assignments must therefore be overruled.

The defendant next raises multiple assignments of error regarding the introduction of records tending to show the existence of the 40 or more checks made payable to Shell by the church, when the State proved in only a handful of cases that the funds represented by the checks had not reached the intended recipients. The trial judge ruled that unless the intended recipients took the stand and denied receipt of the funds, the State had failed to make out a case as to those particular checks and they could not be aggregated by the jury for purposes of determining Shell’s guilt. The defendant insists that no evidence of the extraneous checks should have been permitted to reach the jury.

Without regard to the correctness oí the trial court’s ruling on this question, an issue which is not before us on appeal since any error accrued to the defendant’s benefit, we think it is clear that the evidence in question, /. e., numerous checks purportedly for the purchase of food stamps and records showing that no requests for such assistance were made by the individuals named on those checks, was relevant and admissible to prove the existence of a common scheme or design with regard to those checks which were the subject of witness testimony. We therefore find no error in connection with the introduction of the checks or with the introduction of welfare department records concerning them, and we thus overrule the related assignments of error.

Nor did the court err in permitting Ms. Swan to summarize the contents of those records following the State’s offer to introduce the individual files as exhibits to her testimony. State ex rel. Stewart v. Follis, 140 Tenn. 513, 205 S.W. 444 (1918); Evans v. Boggs, 35 Tenn.App. 354, 245 S.W.2d 641 (1952); D. Paine, Tennessee Law of Evidence § 232 (1974). Moreover, the record fails to substantiate the defendant’s claim that items were taken from these files prior to trial, making them improper reflections of true department records. These assignments must be therefore overruled.

Furthermore, the trial court did not err in limiting testimony regarding Ms. Swan’s knowledge of “political influence” dealings in the welfare department. This line of questioning was irrelevant, even as impeachment of Swan’s testimony regarding departmental files and her motive to falsify the records. The related assignment is therefore overruled.

The record fails to indicate any improper conduct by the assistant district attorney, other than his understandable persistence in attempting to press his case with regard to all the checks offered into evidence. Measured by relevant standards, his conduct did not so infect the trial as to deprive the defendant of a fair hearing. See generally Judge v. State, 539 S.W.2d 340 (Tenn.Cr.App.1976).

Finally, the defendant challenges the trial court’s denial of her special request for a jury instruction. That request covered the standard of reasonable doubt in somewhat more precise and particular details than that used by the trial judge in his charge to the jury. Nevertheless, the instruction given by the court was a correct statement of Tennessee law, and it adequately covered the subject matter contained in the special request. It follows that the trial judge committed no error in declining to give the requested charge, Edwards v. State, 540 S.W.2d 641 (Tenn.1976), and the related assignment must therefore be overruled.

The judgment of the trial court is affirmed.

O’BRIEN and CORNELIUS, JJ., concur.


author: WALKER, Judge.

text:
    STATE of Tennessee ex rel. Larry JONES, Appellant, v. Rex GANN, Sheriff of Macon County, Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 9, 1979.
    Certiorari Denied by Supreme Court June 4, 1979.

      R. K. Witcher, Jr., Lafayette, for appellant.
    William M. Leech, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Nashville, Tom P. Thompson, Jr., Dist. Atty. Gen., Hartsville, Paul Carter, Commonwealth Atty., Tompkinsville, Ky., for appellee.
   OPINION

WALKER, Judge.

By his petition for habeas corpus, Larry Jones contested extradition to the State of Kentucky as directed by a rendition warrant issued by the Governor of Tennessee in response to the formal request of December 20, 1977, from the Governor of Kentucky. The petitioner was indicted in Monroe County, Kentucky, for the burglary of a store in Ackersville on November 15, 1977. Duly authenticated copies of the indictment accompanied the request. The Criminal Court of Macon County denied the petition and Jones appeals.

At the hearing on his petition, Jones sought to challenge Tennessee Governor Ray Blanton’s order of extradition on several grounds. First, he contends that the governor should have been required to appear at the hearing after Jones had him subpoenaed for questioning about the basis of his decision. Failure to grant a continuance when the governor did not appear was error, he urges. Without this testimony, Jones insists that he cannot show whether Blanton relied upon his personal discretion and whether he considered only the single indictment attached to Kentucky Governor Julian Carroll’s request or the two additional indictments alleged but not authenticated therein. In his second assignment, he cites as error the quashing of his subpoena for Blanton.

Neither of these assignments is wellfounded. A governor’s grant of extradition is prima facie evidence that the requirements fixed by the Constitution and by statutes have been met. Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978). Once extradition is granted, judicial review of that decision by a petition for habeas corpus is limited to consideration of (1) whether the extradition documents are in order on their face; (2) whether the demanding state has charged the petitioner with a crime; (3) whether the person named in the request for extradition is the petitioner before the court; and (4) whether the petitioner is a fugitive. Id., at 289, 99 S.Ct. at 535, 58 L.Ed.2d at 527. The petitioner here failed to show any facial invalidity of the extradition documents. Without that, he is not entitled to probe more deeply into the governor’s decision. Thus, there was no error in denying the requested continuance or in quashing his subpoena for the governor.

Likewise without merit is appellant’s attack on the rendition warrant for its allegation of three Kentucky indictments with only one indictment documented in the supporting papers. This does not amount to a facial defect in the request. A single indictment is sufficient, all other conditions being met, to support extradition. See TCA 40-1010. Moreover, the Uniform Criminal Extradition Act, adopted in both Tennessee and Kentucky, expressly provides that the state which sought extradition may try an extradited person for other crimes which he may be charged with having committed (in that state), as well as that specified in the requisition for his extradition. TCA 40-1033. Thus, submission of documentation for the additional indictments would have been a superfluity and its absence was not error.

Appellant also complains that the rendition warrant of the governor of Tennessee does not comply with the requirements of TCA secs. 40-1016 and 40-1018, which direct that the warrant of arrest is to be issued to an individual who is to deliver the accused to the authorized agent of the foreign state. Instead, Jones notes, the warrant of rendition authorized the foreign state’s agent to arrest the fugitive, although directing Tennessee authorities in general to apprehend him and to deliver him to the Kentucky agent. As was the case in State ex rel Hourigan v. Robinson, 195 Tenn. 101, 257 S.W.2d 9 (1953), this defect is immaterial. In fact, Jones was arrested by a deputy sheriff of Macon County, and he has been afforded a proper hearing with counsel appointed on his petition for habeas corpus. Any error in this respect was harmless on these facts.

Since the rendition warrant was properly held valid, it is unnecessary to consider the validity of the arrest warrant which appellant has attacked in his fourth assignment of error. See State ex rel. Zahnd v. Head, 185 Tenn. 462, 206 S.W.2d 426 (1947).

The appellant next complains of an alleged failure to comply with the requirement of TCA 40-1020 that if the legality of a prisoner’s arrest is to be tested he shall be taken forthwith before a court of record. Jones announced to the General Sessions Court of Macon County on December 31, 1977, his desire to test the legality of his arrest, subsequently bringing to the court’s attention its lack of jurisdiction. He was first taken before the Criminal Court of Macon County on January 23, 1978, at which time counsel for Jones was appointed. It is the 23-day delay from December 31 to January 23 of which Jones complains.

In considering this matter, the trial court observed that Jones had been taken before a court of record on the first occasion that the court sat in Macon County after notice was given that the arrest would be contested. The appellant’s rights were not denied by this delay.

In his sixth assignment, appellant urges that the trial court erred in allowing a detective to testify over defense objection to a statement purportedly made by Larry Dale Dyer implicating Jones in a Kentucky robbery. Dyer was unavailable as a witness in the habeas corpus hearing but had already entered a guilty plea to an indictment for the same robbery for which Jones’ extradition was being sought. In allowing the testimony, the trial court relied upon McLaughlin v. State, 512 S.W.2d 657, 661 (Tenn.Cr.App.1974), where this court spoke of:

“(T)he rule that in an extradition proceeding the courts are not bound by the same rigid rules of evidence as in a criminal trial, and the evidence should be construed liberally in favor of the demanding state.”

The habeas corpus hearing was not designed to determine guilt but only whether the arrest of the petitioner for extradition was proper. The hearsay testimony was largely tangential to the issue of whether Jones had been charged with a crime in Kentucky but was certainly harmless. Moreover, the rules of evidence for extradition proceedings are sufficiently broad that allowing it was not error.

Jones next argues that the court erroneously ruled that he did not sustain his burden of proof to show that he was not in Kentucky when the robbery occurred. To prevail on this ground, absence must be shown beyond a reasonable doubt. McLaughlin, supra, at 660. While Jones and his witnesses did state at the hearing that Jones was in Tennessee during most of the period from November 14 through November 16, 1977, none of these witnesses had actually seen Jones during that period after he left his mother’s house around 9:00 p. m. on November 14 with another defendant charged in the robbery. One witness told the court that Jones had called him around 6:00 p. m., November 15, telling him that he was at Coot Gann’s residence in a rural area of Macon County and asking the witness to come get him before two other men, later charged with appellant in the robbery, could return. That witness never found Gann’s home and could not be sure of the call’s origin, but could only say that it was not a long distance call and therefore was from within Macon County. Late in the evening of November 15, officers did find that Gann’s telephone had been jerked out of the wall, but they could not tell how long the phone had been in that condition. The site of the robbery itself is less than a mile from the line between Monroe County, Kentucky, and Macon County, Tennessee. There remains room for reasonable doubt as to Jones’ whereabouts at the critical time.

Additional evidence undermining Jones’ denial that he was in Kentucky at the time of the robbery included a pistol identified as having been stolen in the robbery. This gun was found under the car seat that appellant had been occupying immediately prior to his arrest in Macon County on November 16, 1977, for possession of a controlled substance, public drunkenness and carrying a weapon.

In light of this evidence, it cannot be said that Jones has shown beyond a reasonable doubt that he was not in Kentucky at the time of the offense.

The final assignment of error questions the transfer of Jones to the custody of the agent for Kentucky immediately upon denial of the petition rather than awaiting the outcome of appellant’s appeal of the denial. In ordering the immediate transfer, the trial court acknowledged the lack of case law on the subject, but advised Jones that he could apply to the Court of Criminal Appeals for a stay if he desired to delay extradition until his appeal of the petition’s denial could be processed. The technical record contains nothing to suggest that Jones sought the supersedeas, although even before the court’s ruling the state had told the petitioner that the extradition would be effected as quickly as possible and that he would have to seek a stay to block the transfer pending appeal.

In any event, we judicially notice that the immediate transfer was not effected while this appeal was pending, for Jones was tried, convicted and sentenced to the Tennessee Penitentiary for a separate and unrelated offense in Tennessee.

Affirmed.

DAUGHTREY and CORNELIUS, JJ., concur.


author: DWYER, Judge.

text:
    Richard LOWE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 12, 1979.
    Certiorari Denied by Supreme Court June 4, 1979.

      Fredric J. Chester, Jr., Athens, for appellant.
    William M. Leech, Jr., Atty. Gen., John C. Zimmermann, Asst. Atty. Gen., Nashville, Richard A. Fisher, Dist. Atty. Gen., Cleveland, for appellee.
   DWYER, Judge.

OPINION

This is an appeal in the nature of a writ of error from a conviction for committing the offense of murder in the second degree with punishment at confinement for life. There are two assignments of error: (1) the court erred in failing to sustain defendant’s motion to suppress a statement purporting to be defendant’s confession and waiver of constitutional rights; (2) the court erred in failing to sustain defendant’s motion for a directed verdict on the charge of second degree murder, because there is no material evidence to support the verdict and the greater weight of the evidence preponderates against the verdict.

There were no eye-witnesses to this homicide which occurred on August 24, 1977, but a detailed statement was taken from the appellant after his arrest from which the following was revealed. The appellant and the decedent, George Dimler, had been shooting and gigging fish most of the day August 24,1977. They also had been drinking beer during the day. After they returned to the decedent Dimler’s home shortly before dark the decedent got into an argument with his wife at which time the appellant went outside to get some fishbait out of his truck. The decedent Dimler came out of his house and fired a shotgun into the ground. This prompted the appellant to take a .22 rifle from his truck and place it on the porch outside the front door. The appellant and Mildred Sneed, sister of Dimler’s wife, then left the house to purchase some whiskey from a nearby bootlegger. When they returned to the residence Dimler became upset about the whiskey and hid it. He again got into an argument with his wife at which time the decedent took a shotgun and pointed it at the appellant and stated that he would blow his head off, snapped the trigger and the gun failed to fire. The appellant, standing near the front door, then stated that he was not going to wait for the decedent to again try to shoot him, so that he reached out onto the porch, got his rifle, pointed it at the decedent and pulled the trigger. When it did not go off he put another round in the chamber and shot the decedent four times, twice in the chest and twice in the back. The decedent dropped the shotgun and ran into the bathroom. The appellant then got another bullet out of his pocket and again loaded the rifle. The appellant heard the decedent hollering, so he walked into the bathroom, put the end of the rifle barrel against the decedent’s forehead and shot him between the eyes, as he related, to make him stop hollering. He then called his brother and told him to call an ambulance because he had shot the decedent.

A pathologist, testifying for the State, related that the decedent had died from multiple gunshot wounds. An autopsy on decedent’s body reflected a wound in the mid-forehead, one in the left shoulder, another in the right side of the left nipple, another in the left back and another in the mid-back. The pathologist further testified that the wound in the shoulder and the wound in the mid-back region were not fatal; but the other three were fatal wounds.

The appellant, who did not testify, called his brother as a witness. He related that around 11:15 p. m. on the evening of August 24, 1977, he received a telephone call from the appellant who told him that he had just shot a man and to call the sheriff’s office. This brother further related that the appellant sounded to him like he was “real drunk” at that time.

The first assignment of error: There was a full jury-out hearing held by the trial court on the question of whether or not the detailed statement of the appellant was the product of a free mind and a rational intellect. The evidence shows that a breathalizer test given to the appellant some three hours after his arrest reflected a blood alcohol content of .18 per cent. It is therefore the appellant’s contention that the .18 per cent level, which is almost double the level required by T.C.A. § 59-1047, creates a presumption of intoxication for driving purposes, and clearly reflects that the appellant was under the influence of an intoxicant to such an extent that his confession could not have been a voluntary free act. The appellant contends that his free will and rational intellect was sufficiently impaired to prevent him from voluntarily and knowingly waiving his constitutional rights. Vandegriff v. State, 219 Tenn. 302, 409 S.W.2d 370 (1966); Morelock v. State, 3 Tenn.Cr.App. 292, 460 S.W.2d 861 (1970).

The State contends that the blood alcohol content of the appellant, even when it exceeds the statutory presumption for driving purposes, does not per se invalidate an effective waiver of constitutional rights. With this contention of the State we are in accord. We think the blood alcohol content of the appellant is a factor for .the trial court to consider in determining whether or not the intoxication prevents a free and ■voluntary waiver of rights; and whether or not a confession was the product of a free mind and a rational intellect. Pyburn v. State, 539 S.W.2d 835, 840 (Tenn.Cr.App.1976); Williams v. State, 491 S.W.2d 862, 866 (Tenn.Cr.App.1972); United States v. Martin, 434 F.2d 275 (5th Cir., 1970).

The evidence before the trial court on the motion to suppress reflects that the first officers arrived at the scene at approximately midnight, and Agent Wayne Adkins took the appellant’s confession at 1:53 a. m. Agent Adkins testified that the appellant was alert and coherent and did not slur his words. He further testified that the appellant was read and signed a waiver of his rights. Also, the officer who administered the breathalizer test to the appellant testified that the appellant talked clearly, walked straight and did not appear to be intoxicated.

The appellant testified at the hearing that he was drunk on the night of the incident and did not recall the statement. His brother testified that the appellant telephoned him on the same evening mumbling and that appellant was intoxicated.

In matters of this kind great deference is given by the appellate court to the trial court’s ruling for he sees and hears the witnesses and is in a far better position to weigh their credibility than the appellate court from a cold record. The trial court ruled after the full hearing that the appellant’s statement was admissible. We think there was sufficient evidence to support that ruling and that the appellant has not carried his burden to show that the evidence preponderates against the trial judge’s ruling. Peabody v. State, 556 S.W.2d 547, 550 (Tenn.Cr.App.1977). The assignment of error is accordingly overruled.

The second assignment of error: Since the appellant did not rest his case at the close of the State’s proof but offered evidence in his defense, the motion for a directed verdict is not well taken. State v. Thompson, 549 S.W.2d 943, 946 (Tenn.1977). The appellant further contends the evidence does not support the conviction of murder in the second degree but rather supports one of voluntary manslaughter. With this we disagree. We think where the homicide, as here, was committed with a deadly weapon and where the appellant shot the decedent five times, the last to stop the decedent from hollering, it would be beyond cavil to argue that this killing was not maliciously committed. We think these methodical acts repudiate any argument that this slaying occurred upon adequate provocation or as a result of passion. The assignment of error is accordingly overruled.

The judgment of the trial court is affirmed.

TATUM, and BYERS, JJ., concur.