author: FONES, Chief Justice.

text:
    STATE of Tennessee, Petitioner, v. Marvin BEASLEY, Jr., Respondent.
    Supreme Court of Tennessee.
    April 19, 1976.
    R. A. Ashley, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Nashville, for petitioner.
    James S. Patrick, Jr., Hendersonville, for respondent.
   OPINION

FONES, Chief Justice.

The sole question presented for determination is whether it is error for the prosecuting attorney to state in his closing argument, over defense counsel’s objection, that the defendant’s alibi witness gave false testimony when the evidence supports such an inference.

Respondent was convicted of robbery and sentenced to five to ten years in the State penitentiary. He appealed to the Court of Criminal Appeals which reversed his conviction on the ground that the District Attorney General exceeded the bounds of advocacy in arguing to the jury in his closing argument that the defendant’s alibi witness had “lied.” We reverse the Court of Criminal Appeals and reinstate the conviction.

At the trial, Mrs. Puckett Cothran, the victim, positively identified respondent as one of two individuals who robbed her in her home in Williamson County at approximately 7:30 p. m. on February 22, 1974. She testified that she had known respondent all of her life, that she could see through the thin ladies’ hose that he was wearing as a mask, and that she recognized his body structure and voice at the time of the robbery.

Respondent relied solely on an alibi defense. He presented two witnesses who testified that he had been with them in Nashville during the time of the robbery on February 22, 1974.

In rebuttal the State elicited the testimony of Sheriff Williams of Williamson County as follows:

“Q. Sheriff, I believe that just before the Jury had left you had testified that you had had an opportunity to question Mr. Beasley after he was returned by the Rutherford County authorities?
A. I did.
Q. And the date was what?
A. March 18, 1974, Sir.
Q. March 18, 1974. Then at that time about — at that time did you ask him about the occurrence at Mrs. Coth-ran’s residence on February 22nd?
A. I did, on one of the discussions of the armed robbery at Mrs. Coth-ran’s I was asking him questions and at this time he stated that he didn’t know anything about it and he did state to me at this time, that on this date he was out of the state.
Q. He said he was out of the state?
A. Yes, sir.
Q. All right did he state what state he was in?
A. Alabama.
Q. In the State of Alabama?
A. He said he could prove it.
Q. He said he could prove that he was in Alabama?
A. Yes, sir.”

During final arguments the District Attorney General made the following statements which the Court of Criminal Appeals found to be reversible error:

“Dist. Atty. Gen. Davies: So they determined to have this woman that he was familiar with come up with — to concoct this excuse as to where he was and that it was the concocted defense that he was going to give when the Sheriff saw him, he decided it would be easier to have somebody come up and lie about him being—
Mr. Woodard: Your Honor, I object to this, every witness in this trial is presumed to tell the truth. The District Attorney General has just called the witness a liar, its for the Jury, not the District Attorney.
The Court: You have the right to answer that and raise your question to the Jury.
Dist. Attorney General Davies: He decided it would be easier to have this woman come up and lie about him being in Madison than it would be to get somebody to lie about being in Alabama and that was just the choice that he made on that occasion.”

Although there has been no criminal case directly in point in Tennessee, this Court has developed general rules which aid our analysis and resolution of the instant case.

The District Attorney General is warranted in making an argument to the jury when his argument is supported by evidence introduced at trial. Smith v. State, 205 Tenn. 502, 543-544, 327 S.W.2d 308, 326-327 (1959). He may not, however, indicate that his argument is based upon evidence not appearing in the record. Wooten v. State, 203 Tenn. 473, 314 S.W.2d 1, 5 (1958). Our Code of Professional Responsibility, DR 7-106(C)(4), states that when appearing before a tribunal, a lawyer shall not “[a]ssert his personal opinion ... as to the credibility of a witness but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the [credibility of a witness].”

The record contains ample support to provide a basis for the District Attorney General’s argument that the defense witnesses had committed perjury. The victim positively identified respondent by his facial features, his voice, and his body build and structure. She had been acquainted with respondent since his birth; a more positive identification is difficult to imagine. Additionally, the Sheriff testified that respondent had told him that he was not even in the State of Tennessee on the date in question. Respondent said that he had been in Alabama and could prove it.

The testimony of these two witnesses certainly establishes an inference that the defense witnesses had perjured themselves about respondent’s whereabouts on the night in question. The District Attorney General did not go outside of the evidence in his statement and was justified in relying on the inference established by the testimony of these two witnesses in making his argument.

Nor did the District Attorney General violate DR 7-106(C)(4) of the Code of Professional Responsibility. Upon an analysis of the evidence, his argument was presented as an ultimate conclusion which would necessarily follow if the testimony of the prosecution witnesses were believed by the jury. His personal opinion, per se, was not interjected in the argument.

While the only Tennessee case in point is a civil one, Stone v. O’Neal, 19 Tenn.App. 512, 90 S.W.2d 548 (1935) (accusation of perjury held no error), the majority of other jurisdictions considering the question have ruled that the remarks of counsel making reference to “lying” defendants or defense witnesses are allowed if based upon evidence in the record. People v. Reyes, 12 Cal.3d 486, 116 Cal.Rptr. 217, 526 P.2d 225 (1974); People v. Weaver, 18 Ill.2d 108, 163 N.E.2d 483 (1959); People v. Charles, 58 Mich.App. 371, 227 N.W.2d 348, 357 (1975); State v. Franklin, 526 S.W.2d 86 (Mo.App.1975); State v. Nelson, 103 N.H. 478, 175 A.2d 814 (1961); State v. Plowden, 126 N.J.Super. 228, 313 A.2d 802 (1974); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974).

We hold that the remarks made by the District Attorney General were amply supported by the record and did not constitute error.

The judgment of the Court of Criminal Appeals is reversed and that of the trial court affirmed.

COOPER, HENRY, BROCK and HARBI-SON, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THIRD NATIONAL BANK IN NASHVILLE, etc., Appellant-Appellee, v. Harvey T. COTTEN et al., Appellee-Appellant.
    Supreme Court of Tennessee.
    April 19, 1976.

      Thomas P. Kanaday, Jr., Farris, Evans & Warfield, Stephen W. Ramp, Farris, Evans & Warfield, Nashville, for appellant-appel-lee.
    J. C. Dale, Jr., Dale, Thompson & Miles, Nashville, for appellee-appellant.
   OPINION

FONES, Chief Justice.

This case presents the question of how federal estate and state inheritance taxes are to be apportioned when the widow elects to take against the will of her late husband.

Appellees, who are the nieces and nephews of the testator, Allen G. Grizzard, and beneficiaries under his will, brought this lawsuit against appellant, executor of the testator’s estate, alleging, inter alia, that appellant had wrongfully failed to charge the dissenting widow’s statutory share of her late husband’s estate with a portion of the federal estate and state inheritance taxes. Appellees also maintained that they were entitled to interest on the amounts they claimed were due them, and that they should be awarded attorneys’ fees.

The Chancellor held that all of the federal estate and Tennessee inheritance taxes should be deducted prior to computing the dissenting widow’s share, with the result that the widow was charged with one-third of the total tax burden. The Chancellor denied the claim for interest and attorneys’ fees.

Appellant first argues that the widow should not pay any portion of the federal estate and state inheritance taxes imposed upon the estate because the testator specifically directed that those taxes be paid from his “general Estate.” Appellant, relying on Nashville Trust Co. v. Grimes, 179 Tenn. 567, 167 S.W.2d 994 (1943), maintains that a direction to pay taxes out of the general estate is synonymous with an instruction to pay taxes out of the residuary estate. Because the testator has directed taxes to be paid out of a specific fund, appellant argues that the widow, even though she dissents from the will, should be allowed to take advantage of this provision under the authority of Commerce Union Bank v. Albert, 201 Tenn. 631, 301 S.W.2d 352 (1957). Thus, under this theory the widow would not be liable for state inheritance or federal estate taxes to the extent that sufficient funds were available in the residuary estate to pay those taxes.

Assuming without deciding that the term “general Estate” as used in this will is synonymous with the term “residuary estate,” appellant’s argument must fail because of another provision in the will.

In Item IX the testator provided, inter alia, that if his wife should dissent and take against the will, any provision in the will in her favor would become void. Under this provision the widow, because of her dissent, is precluded from claiming the benefits of the provision assessing taxes against the residuary estate. See Tate v. Camp, 147 Tenn. 137, 245 S.W. 839 (1923); In Re Houston’s Estate, 371 Pa. 396, 89 A.2d 525 (1952). As to her, the effect is the same as if the will contained no instruction on the payment of taxes.

If the widow is not completely absolved from the payment of state inheritance and federal estate taxes, what portion is she to pay?

T.C.A. § 30-1117 provides that:

“Whenever the personal representative of an estate has paid an estate or death tax to the government of the United States under any federal tax law now in effect or hereafter enacted by congress, upon, or with respect to, any property required to be included in the gross estate of a decedent under the provisions of any such law, the amount of the tax so paid, except in a case where a testator otherwise directs in his will, shall be equitably prorated among the persons interested in the estate to whom such property is or may be transferred or to whom any benefit accrues. Such proration shall be made by the personal representative in the proportion, as near as may be, that the value of the property, interests and benefits received by all such persons interested in the estate, except that in making such proration allowances shall be made for any exemptions granted by the law imposing the tax and for any deductions allowed by such law for the purpose of arriving at the value of the net estate

This section operates to charge an individual only for that portion of the federal estate tax which the property he received actually generated.

Up to one-half of the adjusted gross estate passing to the widow is available for the marital deduction upon which there is no federal estate tax; therefore, the widow is not subject to the payment of any prorated share of the federal estate tax under T.C.A. § 30-1117 on property she received from the estate which qualifies for the marital deduction.

While the allocation of state inheritance taxes is not controlled by T.C.A. § 30-1117, the widow is only liable for that portion of the inheritance tax that was attributable to the property she received as a Class A beneficiary. See First National Bank v. McCanless, 184 Tenn. 114, 195 S.W.2d 756 (1946). Any other result would require that she pay a portion of the taxes incurred by the Class B beneficiaries.

Appellees assign two (2) errors. They maintain that interest should have been awarded by the Chancellor on the funds wrongfully distributed to the widow. The law is clear in this state that interest as a matter of right is purely statutory, and its allowance is limited to those situations specifically enumerated by statute unless the chancellor in the exercise of his discretion awards interest. When there is no abuse of discretion this Court will not interfere with the Chancellor’s decision. Southern Const. Co. v. Halliburton, 149 Tenn. 319, 258 S.W. 409 (1924); Tennessee Fertilizer Co. v. International Agr. Corp., 146 Tenn. 451, 243 S.W. 81 (1922). There is no evidence that the Chancellor abused his discretion in not awarding interest, and his decision on this point is affirmed.

Secondly, appellees argue that attorneys’ fees should have been awarded because their services inured to the benefit of the entire estate. Under our disposition their services did not inure to the benefit of the estate, and attorneys’ fees are accordingly denied.

This cause is remanded to the Chancery Court of Davidson County for further proceedings consistent with this opinion.

BROCK and HARBISON, JJ., and LEECH, Special Justice, concur.

HENRY, J., not participating.

      . This assumes, of course, that the portion passing to the widow qualifies for the marital deduction.

      . Int.Rev.Code § 2016.


author: WILLIAM M. LEECH, Special Justice.

text:
    Jane Ann WOODS, Commissioner of Revenue of the State of Tennessee and Glenn Ferguson, Trustee for the Metropolitan Government of Nashville and Davidson County, Tennessee, Appellant, v. EQUITY SERVICES, INC., Appellee.
    Supreme Court of Tennessee.
    April 19, 1976.

      Donald L. Corlew, Metropolitan Atty., Nashville, for appellant.
    Robert W. Sturdivant, Trabue, Sturdi-vant & Dewitt, Nashville, for appellee.
   OPINION

WILLIAM M. LEECH, Special Justice.

This action comes directly to this Court from an interlocutory decree overruling a motion to dismiss. The sole question is: must a taxpayer who pays municipal taxes under protest file suit for recovery of such taxes within thirty (30) days, or does he have six (6) months in which to file suit? The Chancellor held that the statute of limitations of six (6) months applied, and allowed the defendant, the Trustee of the Metropolitan Government of Nashville and Davidson County, a discretionary appeal.

Chapter 324, Public Acts of 1959, Section 1, which is codified as Section 67-2313, Tennessee Code Annotated, reads as follows:

“67-2313. Recovery of taxes paid municipalities. — The provisions of §§ 67-2303 — 67-2308, inclusive, and of §§ 67-2310 — 67-2312, inclusive, shall apply to the recovery of all taxes collected by any of the municipalities of this state. In order to carry out the legislative intent that all of said sections, which now apply to the recovery of state taxes erroneously paid, be conformed to apply also to the recovery of taxes erroneously paid to municipalities, the following provisions are added:
The municipal officer collecting any municipal taxes paid under protest shall pay such revenue into the municipal treasury and at' the time of payment, shall give notice to the mayor and board of commissioners or other governing body of such municipality that the same were paid under protest. If it be finally determined by any court having jurisdiction of any suit brought within thirty (30) days after such payment under protest against said municipality to recover such taxes that the same were wrongfully collected as not being due from the said party to the municipality, the municipality, shall refund such taxes with such interest as the court may determine to be proper, not exceeding the legal rate, and shall pay the costs of the cause. The city attorney or other legal officer of such municipality shall conduct the defense of such suit. [Acts 1959, ch. 324, § 1.]”

Appellee, Equity Services, Inc., was for the year 1974, assessed for personal property tax by the Metropolitan Government of Nashville and Davidson County, Tennessee, and on February 28,1975, appellee paid said tax under protest. Thereafter, on June 23, 1975, suit was brought by appellee for the recovery of the tax so paid under protest. The Metropolitan Government insists that under Section 67-2313 Tennessee Code Annotated, that suit must be instituted within thirty (30) days, and Equity Services, Inc., insists that suit may be brought at any time within six (6) months from the date of payment of the tax under protest.

There is, in our opinion, no conflict in the provisions of Section 67-2313, Tennessee Code Annotated, as to the time limit for instituting suit for the recovery of taxes paid to a municipality under protest. The first paragraph of Section 67-2313, Tennessee Code Annotated incorporates all provisions of Code Section 67-2303 through 67-2308, inclusive. Prior to 1959, and the enactment of Chapter 324, Public Acts of 1959, these sections applied only to the payment of taxes due the State of Tennessee. By the 1959 Act all of the provisions of the above sections of the Code were made to apply to taxes paid to a municipality. Thus by expressed language, Section 67-2305, which provides six (6) months in which to sue the officer collecting the tax paid under protest, is made a part of Section 67-2313 and establishes the time limit for filing suit, whether for taxes paid under protest to the state government or a local government. This legislative intent is clearly expressed in paragraph one of Section 67-2313, wherein it is stated, “In order to carry out the legislative intent that all of said sections [67-2303 — 67-2308, inclusive] which now apply to the recovery of state taxes erroneously paid be conformed to apply also to the recovery of taxes erroneously paid to municipalities . . .

Appellant argues that since the second paragraph provides for a refund to the taxpayer in the event suit is brought within thirty (30) days after payment, and the court having jurisdiction finds that the tax was wrongfully collected, and since the 1968 amendment did not specifically mention Section 67-2313, that it was the intention of the Legislature to make a distinction between recovery of wrongfully collected taxes by a local government and the state government. Under this theory there would be a conflict in the provisions of Section 67-2313 as the first paragraph would contain the language of said code section allowing the taxpayer six (6) months in which to file suit, and the second paragraph thirty (30) days. Even if this situation existed and there was no clear legislative intent expressed in the statute, appellant’s argument would fail, because where there is a doubt or conflict in a taxing statute, the doubt or conflict must be resolved in favor of the taxpayer. See, Commercial Standard Insurance Company v. Hixson et al., 175 Tenn. 239, 133 S.W.2d 493 (1939); Hake v. Warren, 184 Tenn. 372, 199 S.W.2d 102 (1947); Memphis Peabody Corporation v. MacFarland, 211 Tenn. 384, 365 S.W.2d 40 (1963).

In construing this statute it is unnecessary to resort to the above rule, because the Legislative intent is clearly expressed in the statute; and any amendment to any of the code sections incorporated into the provisions of Tennessee Code Annotated, Section 67-2313 would amend that section, unless such amendment expressly excluded local governments.

The decree of the Chancellor is affirmed and the cause is remanded to the Chancery Court for Davidson County, Tennessee.

The appellant will pay the cost of this appeal.

FONES, C. J., and HENRY and BROCK, JJ., concur.

HARBISON, J., not participating.

      . Prior to 1968, Code Section 67-2305 read:
      “The person paying said revenue may, at any time within thirty (30) days after making said payment, and not longer thereafter, sue the said officer having collected said sum, for the recovery thereof.”
      By Chapter 588, Public Acts 1968, said Code Section was amended by deleting the words and figure “thirty (30) days” and substituting in lieu thereof: “six (6) months.”


author: HENRY, Justice.

text:
    NASHVILLE MOBILPHONE COMPANY, INC., Appellant, v. Z. D. ATKINS et al., Appellees.
    Supreme Court of Tennessee.
    April 19, 1976.

      James Clarence Evans, Farris, Evans & Warfield, John R. Reynolds, Nashville, for appellant.
    Roland M. Lowell, Robert L. Baker, Nashville, for Mobilphone Systems, Inc.
    Eugene W. Ward, Gen. Counsel, Nashville, for Public Service Commission.
   OPINION

HENRY, Justice.

This action involves an interpretation of the State Radio Common Carrier Act as set forth in § 65-3011, et seq., T.C.A. More particularly we are concerned with the construction of § 65-3004(f).

I.

Nashville Mobilphone Company, Inc. is a radio common carrier providing mobile telephone service in Davidson and certain adjoining counties in Tennessee. It operates under a certificate of convenience and necessity issued in 1964 and various supplemental certificates issued thereafter.

On April 5, 1973, Mobilphone Systems, Inc. filed its application with the Public Service Commission seeking a certificate of convenience and necessity authorizing it to operate within the service area of a proposed base station in Nashville. Nashville Mobilphone was served with notice and protested; a hearing was held on May 29,1973; and the Commission granted the authority.

Nashville Mobilphone filed its petition for certiorari in the Chancery Court at Nashville. The Chancellor upheld the Public Service Commission and this appeal ensued.

II.

Appellant charges the Chancellor with error in his interpretation of § 65-3004(f) T.C.A., and his holding that the notice requirement of this section was satisfied by the notice given to Nashville Mobilphone pursuant to § 65-30Q4(c). The Chancellor is further charged with error in failing to hold that the Commission was required under § 65-3004(f), as a condition precedent to the issuance of the license, to find that Nashville Mobilphone, after notice to provide reasonably adequate service, and after hearing pursuant to such notice, had failed or refused or neglected to do so.

We first look to the pertinent findings actually made by the Public Service Commission:

(1) that the service of the presently certificated radio common carrier is inadequate to meet the reasonable needs of the public in Nashville, Tennessee;
(2) that the testimony of witnesses at the hearing conducted on reasonable notice affirmatively shows that the present certificated radio common carrier in Nashville, Tennessee is unable to or refuses or neglects to provide reasonably adequate service.

It will be noted that these findings track § 65-3004(f)

The Chancellor held that there was ample material evidence to support the findings of the Commission and dismissed the petition for certiorari. In a Memorandum Opinion he noted petitioner’s insistence that “the statute requires notice to provide the service”, and, in response thereto, held:

The Court finds that the notice of the May 29th, 1973, hearing coupled with the application was sufficient to notify the plaintiff that ‘adequacy of its service’ would be an issue at the hearing and therefore met the notice requirement of the statute.

III.

We now proceed to an analysis of the State Radio Common Carrier Act.

Section 65-3002 contains a declaration of public policy, in pertinent part, as follows:

. it is hereby declared to be the policy of this state to provide fair regulation of such carriers in the interest of the public, to promote adequate, economical and efficient radio common carrier service . . .; to provide just and reasonable rates and charges for radio common carrier services without unjust discrimination, undue preferences or advantages, or unfair or destructive competitive practices .

Section 65-3004 governs application for certificates of convenience and necessity. Subsection (c) provides in pertinent part that upon the filing of the application the commission “shall cause notice thereof to be given to holder of an existing certificate in the affected territory.”

Subsection (f) provides:

The commission shall not grant a certificate for a proposed radio common carrier operation or extension thereof into the established service area which will be in competition with or duplication of any other certificated radio common carrier unless it shall first determine that the existing service is inadequate to meet the reasonable needs of the public and that the person, firm or corporation operating the same is unable to or refuses or neglects after hearing on reasonable notice to provide reasonably adequate service, (emphasis supplied).

This unduly long sentence is badly worded and is completely devoid of sorely needed punctuation. A portion of the sentence is clear; a portion ambiguous.

It is clear that the Legislature intended to guard against “unfair or destructive competitive practices” in accordance with the declared public policy. It is clear that an established service area served by an existing carrier is to be accorded a measure of protection against competition and duplication of services in accordance with the declared public policy. Certificates for a new carrier are not to be granted where the result would be a duplication of services, unless certain conditions are found to exist.

It is clear that this section was designed to prevent ruinous competition, duplication of services and waste, thereby insuring that the consuming public would be the beneficiary of adequate and efficient service. In order to accomplish these praiseworthy public purposes, this section provides that as a condition precedent to the issuance of the certificate, the Commission must first “determine that the existing service is inadequate to meet the reasonable needs of the public.”

Absent such a finding the certificate may not issue. Phrasing the matter another way this section guarantees to the existing certificate holder the exclusive right to operate in the established service area so long as the existing service is adequate to meet the reasonable needs of the public. Upon such a finding the applicant is foreclosed.

It is at this point that the ambiguity begins. The sentence is phrased in the conjunctive at this juncture. There must be a finding that the existing service is inadequate to meet the reasonable needs of the public and:

that the [existing carrier] is unable to or refuses or neglects after hearing on reasonable notice to provide reasonably adequate service.

It is this phraseology that creates the ambiguity.

Nashville Mobilphone insists:

The Commission must give an existing radio common carrier notice to provide reasonably adequate service and find thereafter that it was unable to, or refused, or neglected so to do, before a duplicating certificate can be granted in its established service area.

Counsel argues in brief and at the bar of this Court that the statute contemplates two notices, i. e., (1) under subsection (c), that an application has been filed and (2) notice, under subsection (f), to the existing facility to provide reasonably adequate service.

Mobilphone Systems and the Public Service Commission assert that “[t]he Commission has interpreted the statute to require one notice that an application has been filed alleging that existing service is inadequate.”

We have examined the State Radio Common Carrier Act in the light of its language, the declared legislative objectives and the respective insistences of the parties to this action.

We think the overall purpose of the act is to protect the public interest by insuring adequate, efficient and economical radio common carrier service. To this end the act is designed to prevent destructive competitive practices. It is implicit in the context of the statute that the operators of an existing facility must have some reasonable assurance that they may expend money, time and effort in the installation, maintenance, improvement and extension of their facilities in order to provide economical and efficient service without the intrusion into their service area of competing carriers. In short, the statute creates a regulated monopoly. This is particularly evident from the wording of subsection (f) wherein the Legislature declared in the most precise and exacting manner that no certificate would be granted for operation “into the established service area which will be in competition with or duplication of any other certificated radio common carrier” unless certain criteria are met. (emphasis supplied).

We think the statute contemplates the following sequence of events when a prospective competing carrier applies for a certificate.

First, the Commission fixes the time and place of hearing and gives notice to the holder of the existing certificate.

Second, a hearing is conducted at which the sole issue is the adequacy of the existing service. This, of course, is an adversary proceeding.

If, as a result of this hearing, the Commission determines the existing service to be adequate, this concludes the matter and the application will be denied.

If the Commission determines that the service is inadequate to meet the reasonable needs of the public then it must give notice to the existing carrier, under subsection (f), to provide reasonably adequate service. A reasonable time limit should be fixed, appropriate investigations should be made by the Commission, and a date certain should be fixed for a hearing at which the sole issue is compliance with the Commission’s order. If the Commission determines that there has been compliance and the service being rendered is reasonably adequate, the application of the prospective carrier will be denied.

If, after this second hearing the Commission determines that there has not been compliance with its directive, it should reevaluate the entitlement of the existing carrier to continue to operate, and should proceed at a third hearing to determine “the suitability of the applicant, the financial responsibility of the applicant, the ability of the applicant to perform efficiently the service for which authority is requested”, in accordance with subsection (e) of Section 65-3004.

In appropriate cases the Commission may, at a single hearing, determine the adequacy of the existing service and the suitability of the applicant, but it is essential that the Commission determine that the existing service is inadequate, prior to making any finding as to the suitability of the applicant.

IV.

We deal with a relatively new act. We are not cited to a similar enactment in any other state; however, our investigation reveals that Georgia and Louisiana have substantially the same statutes.

Georgia’s Radio Utility Act is contained in § 93-901, et seq., Georgia Code Annotated. The Georgia law, however, contains no declaration of public policy. Section 93-911 is virtually identical with § 65-3004(f), T.C.A. We find no case construing the Georgia Act.

Louisiana’s statutory scheme for the regulation of Radio Common Carriers is contained in § 45-1500, et seq. LSA. § 45-1503 is virtually a carbon copy of § 65-3004(f) T.C.A.

The Louisiana statute was construed in Communications Ind., Inc. v. Louisiana Pub. Serv. Comm’n., 260 La. 1, 254 So.2d 613 (1971). The issues and insistences parallel those presented in the instant case. In holding that the Louisiana statute required only one hearing, the Court said:

Manifestly, the statutory purposes are to provide efficient service in radio-telephone communications and to preserve procedural fairness in the administration of the certificates.
The one-hearing construction advances both of these objectives, while the two-hearing construction does not.
It is unlikely that a Certificate applicant would expend the money necessary to set up an operation and marshal the legal and technical assistance to show that the existing service is inadequate if the outcome would always be only a second chance for the established operator. Such a procedure would defeat rather than regulate competition.
It seems clear that the delays inherent in a two-hearing procedure would frustrate legitimate consumer interest in the swift correction of inadequate service.
Procedural fairness, a compelling consideration, lends no support to the two-hearing theory. So long as reasonable notice is coupled with a reasonable opportunity to be heard, such fairness is assured.
We construe the statute to require one hearing upon reasonable notice. . 254 So.2d at 615.

We do not agree with the reasoning of the Louisiana Court with respect to the likelihood of an applicant expending “the money necessary to set up an operation and marshal the legal and technical assistance to show that the existing service is inadequate if the outcome would always be only a second chance for the established operator.” This is just a hazard of the game when one man seeks to play on the field of another.

This argument goes to the merits and desirability of the statute, a matter with which this Court officially has no legitimate concern. We do not second guess the Legislature. It is privileged to pass good laws, mediocre laws or poor laws. Our scrutiny is solely directed to their constitutionality. We take them as we find them and have neither the duty, nor the disposition, nor the inclination, nor the power to modify or mold them so as to meet our view of their merit.

V.

The Public Service Commission and Mo-bilphone make two other insistences that we think deserve comment.

First they insist that the Public Service Commission has interpreted subsection (f) and, citing authorities, they urge upon us the general rule that weight and importance are given by the Tennessee courts to the interpretation of the agency charged with the enforcement or administration of a particular act. We agree that such an interpretation is entitled to consideration and respect and should be awarded appropriate weight, and this is particularly true in the interpretation of doubtful or ambiguous statutes. But administrative interpretation is not controlling and the ultimate determination addresses itself to the courts. Where the court determines that “such construction is erroneous” it will be “impelled to depart from it.” Collins v. McCanless, 179 Tenn. 656, 665, 169 S.W.2d 850, 853 (1943). Moreover, this is a relatively new statute and we do not deal with a long established administrative construction.

Appellees make the further insistence that § 65-3002 T.C.A. prohibits “an undue preference.” So it does, but the act in its entirety must be construed to create a preference in favor of the existing facility so long as it renders adequate service. But, they insist that such an interpretation would create a monopoly in violation of Title 15, Section 2, United States Code, and Article 1, Section 22 of the Tennessee Constitution.

These insistences are not briefed but appear only as a conclusory statement in ap-pellee’s reply brief. We, therefore, do not consider it necessary or desirable to prolong this opinion with a dissertation on these unbriefed insistences. Suffice it to say that by their very nature and because of the character of their operations, most public utilities are regulated monopolies. None enjoy continuing exclusivity and all are regulated in the public interest and enjoined to meet the public need. All operate with the certain knowledge that their continuation demands the rendition of adequate service under a continuing contingency of loss of operating authority.

In Checker Cab Co. v. Johnson City, 187 Tenn. 622, 216 S.W.2d 335 (1948) this Court declared:

It is settled law that the antimonopoly clause of our constitution does not prohibit the legislature from granting a monopoly, in so far as such monopoly has a reasonable tendency to aid in the promotion of the health, safety, morals and well being of the people. 187 Tenn. at 627, 216 S.W.2d at 337.

We hold that the Tennessee State Radio Common Carrier Act, as incorporated in § 65-3001 et seq., T.C.A., does not violate the anti-monopoly clause of the Constitution of Tennessee as contained in Article 1, Sec, 22 of that document, nor is it offensive to title 15, Section 2, United States Code.

VI.

The Public Service Commission’s Hearing Examiner, the Commission itself and the Chancellor have found as a fact that Nashville Mobilphone’s service is inadequate to meet the reasonable needs of the public in Nashville, Tennessee. We will not disturb that finding; let it become the law of the case.

The Commission having made the determination of inadequacy, must now give Nashville Mobilphone notice to provide reasonably adequate service and pursue the procedure hereinabove outlined.

We reverse the Chancellor and remand to the Public Service Commission.

FONES, C. J., and COOPER, BROCK and HARBISON, JJ., concur.


author: COOPER, Justice.

text:
    EMPLOYERS INSURANCE COMPANY OF ALABAMA and the Treasurer of the State of Tennessee, Appellants, v. Vernon C. HEATH, Appellee.
    Supreme Court of Tennessee.
    April 26, 1976.

      John S. Tanner, Elam, Glasgow, Tanner & Aeree, Union City, for appellants.
    William B. Black, Tiptonville, for appel-lee.
   COOPER, Justice.

OPINION

This is a workmen’s compensation action in which the employer’s insurance carrier appeals from an adverse judgment rendered in the Chancery Court of Obion County. The employee, Vernon C. Heath, was employed as a furniture route salesman and collector and, as such, was required to deliver and repossess furniture. In December, 1973, Mr. Heath injured his back while loading a sofa in the course and scope of his employment. Treatment of the injury required surgery to remove the disc in the L-5 interspace. The chancellor found that Mr. Heath had sustained a sixty percent permanent partial disability of the body as a whole and awarded benefits accordingly. Appellant insists there is no material evidence to support the decree of the chancellor.

On the issue of disability Dr. Joseph Miller, who performed the operation, testified that the surgery left Mr. Heath with a permanent partial disability of fifteen percent to the body as a whole. He further testified that the disability prevented Mr. Heath from doing work which required repeated stooping or bending or lifting of objects weighing more than forty pounds.

Dr. Harold Butler, a treating physician, testified that Mr. Heath had an anatomical disability of twenty percent to the body as a whole as the result of the back injury and consequent surgery. When asked if there was another method of fixing disability “based on a man’s industrial work,” Dr. Butler testified there was and that when this method was used it would run Mr. Heath’s disability up to thirty or thirty-five percent.” Dr. Butler was then asked:

“Q. And I ask you again, doctor, is that your best opinion based on your knowledge of his history, and of the medical knowledge that you have concerning him?
“MR. TANNER: We would like to renew our objection to this whole line.
“DR. BUTLER: No sir, this is not my opinion. You asked me about another way of doing it, and I just explained this. My opinion would be the twenty percent (20%) disability.
“Q. As being the strict anatomical disability.
“A. Yes sir.”

Dr. Butler also testified that appellee’s disability would prevent him from doing work that required repeated bending or the lifting of more than forty pounds.

Mr. Heath testified that he quit school in the ninth grade and has had no specialized training that would permit him to do other than manual labor. He further testified that after his operation he attempted to work as a “termite and pest control man” and was unable to do the work because of the limitations resulting from the back operation.

Other lay witnesses testified as to the inability of Mr. Heath to do work around the house as he had in the past.

Appellant insists the chancellor erred in permitting Dr. Butler to testify concerning the second way to determine disability of a workman, and further insists that if the evidence was admissible, the benefits awarded Mr. Heath must be limited to the thirty to thirty-five percent testified to by Dr. Butler. We see no merit in either insistence.

Medical causation and the permanency of an injury must be established by expert medical testimony. Floyd v. Tennessee Dickel Company, 225 Tenn. 65, 463 S.W.2d 684 (1971). But once they are established the chancellor is not required to accept the doctors’ opinions of the extent of the workman’s disability, but is entitled to determine the extent of disability from all the evidence, both expert and nonexpert. A. C. Lawrence Leather Company v. Loveday, 224 Tenn. 317, 455 S.W.2d 141 (1971). In doing so, the chancellor considers many pertinent factors, including job skills, education, training, duration of disability, and job opportunities for the disabled, in addition to the anatomical disability testified to by medical experts. See Federated Mutual Implement & Hardware Ins. Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427 (1967).

On considering the medical evidence and other factors having a bearing on the issue of disability, the chancellor concluded that the evidence showed that appellee had a permanent partial disability of thirty-five percent to the body as a whole. This finding in our opinion is supported by material evidence.

Counsel for appellee has moved this court to enter judgment against appellant for damages allegedly incurred by appellee as the result of the appeal, citing T.C.A. 27-124 which provides that this court may enter such a judgment “when it appears . that the appeal from a court of record was frivolous or taken solely for delay.” On considering the appeal and the affidavit filed in support of the motion, which incidentally contains charges not properly attributable to the appeal, we find no merit in the motion and decline to enter a judgment against appellant for charges and expenses incurred by appellee in defending the appeal.

The decree of the chancellor is affirmed, with costs to be paid by appellant.

The death of the appellee has been suggested and the action has been revived in the name of the administratrix of the ap-pellee’s estate. The action therefore is remanded to the trial court for further proceedings consistent with the decree of the chancellor, as affirmed, and with the issues arising out of the death of appellee.

FONES, C. J., and HENRY, BROCK and HARBISON, JJ., concur.


text:
    EMERSON ELECTRIC COMPANY, Appellant, v. Johnny Clayton FORREST, Appellee.
    Supreme Court of Tennessee.
    April 26, 1976.

      Richard L. Dunlap, III, Dunlap, Dunlap, & Hessing, Paris, for appellant.
    Fred Collins, Flippin, Collins & Huey, Milan, for appellee.
   OPINION

COOPER, Justice.

Emerson Electric Company has appealed from a decree of the Chancery Court of Henry County awarding Johnny Clayton Forrest benefits called for under the Workmen’s Compensation Act where the employee sustains one hundred percent permanent disability to the right arm. Appellant insists that appellee should be denied benefits due to his refusal to undergo further medical treatment. Appellant also insists it is not liable for payment of medical bills incurred by appellee in seeking medical help from physicians other than those selected by appellant.

There is no dispute as to material facts. Appellee was injured on February 15, 1973, when a piece of metal became imbedded in his right arm. The injury was reported to appellant and appellee was given first aid treatment on-the-job. The next day appellant sent appellee to the Henry County General Hospital where he was treated by Dr. Joe Mobley and was given antibiotics to prevent infection.

On February 21, 1973, appellee was admitted to the hospital suffering from acute gas gangrene in his right arm and underwent surgery to drain the infection.

Appellee returned to work on April 4, 1973, but was unable to perform tasks assigned to him due to severe swelling in his right arm, and quit after working only two or three days. Since leaving appellant’s employment, appellee has worked for several firms, but has been constantly plagued by severe swelling in his right arm, which prevents him from satisfactorily performing manual labor.

In May, 1974, appellee was examined and treated by Dr. Robert J. Barnett, an orthopedic surgeon. Dr. Barnett was of the opinion that appellee had a ten percent permanent partial disability to the right arm due to “limitation of motion; the extensive scarring; the dormant infection which probably exists due to the repeated drainage [of the arm]; the atrophy of the forearm; [and] the general weakness of his arm.”

In January, 1975, appellee was also examined by Dr. Leland M. Johnston, a specialist in internal medicine, who testified that ap-pellee had edema in the right forearm and that it was due to a blockage of the lymphatics by scar tissue from the operation and drainage necessitated by the gas gangrene. The condition was described as “lymphede-ma” which, according to Dr. Johnston, “is blockage of lymphatics and fluid accumulates because of blockage distal to blockage. It is similar tó milk-leg except most milk-leg is caused by a blockage of veins whereas this is blockage of lympatics.” Dr. Johnston expressed the opinion that since the scar tissue has been present for three years there was no effective medical procedure to correct the condition, and that appellee has “a 70% to 100%” permanent disability to the right arm.

After receipt of this testimony, and on motion of appellant, appellee was examined by Dr. Joe Mobley, the treating physician furnished by the appellant. Dr. Mobley testified he saw no evidence of lymphedema whatever; that there was evidence of gas accumulation in the tissues but not fluid accumulation; and that in his opinion the gas was due either to some type of “real low grade, simmering, anaerbic infection that produces gas or . that it was put in there with a needle.” He also stated that he would not be the least surprised if appellee was a malingerer. He went on to say that if the gas was due to an infection, it was possible that the source of the infection could be identified and that it could be combated by antibiotics.

On filing Dr. Mobley’s deposition, appellant moved to have the chancellor order plaintiff to submit to further medical treatment, or in the alternative, to dismiss appel-lee’s action. The chancellor granted the motion to have appellee submit to further medical treatment “on the condition that defendant agree to pay [appellee] temporary total [disability] benefits from May of 1973, through the present time and if defendant agreed to pay immediately all past medical bills and future medical bills.” The chancellor also found that appellee had a permanent disability of 100 percent to the right arm as the result of the on-the-job injury which occurred on February 15,1973.

T.C.A. 50-1004 provides that:

“If the injured employee refuses to comply with any reasonable request for examination or to accept the medical or specialized medical services which the employer is required to furnish under the provisions of this law, his right to compensation shall be suspended and no compensation shall be due and payable while he continues such refusal.”

The statutory requirement that the employee undergo medical treatment for an on-the-job injury is predicated upon the employee’s need of treatment and the probability that it will be of material assistance in reducing the disability without serious suffering by or danger to the employee. See Hughes v. All Weather Insulation Co., 216 Tenn. 722, 394 S.W.2d 638 (1965); Sullivan v. Green, 206 Tenn. 42, 331 S.W.2d 686 (1959); Russell v. Virginia Bridge Co., 172 Tenn. 268, 111 S.W.2d 1027 (1938). And, where under the statute the employee is required to undergo medical treatment, the order that he do so is not to be conditioned upon any act of the employer except that the employer provide competent medical services at its expense.

The chancellor then was in error in ordering the appellee to submit to further medical treatment only on condition that the appellant pay temporary total disability benefits to appellee for a described period of time and agree to pay all past and future medical expenses. However, this error does not materially affect the outcome of the action in view of conflicting evidence of medical causation of appellee’s disability and the finding by the chancellor that ap-pellee has a permanent partial disability of 100 percent of the right arm. The chancellor’s finding of disability indicates that he accepted Dr. Johnston’s testimony that ap-pellee’s disability was due to lymphedema. It is undisputed in the record that at this late date, there is no effective medical procedure to correct this condition. Consequently, there is no reasonable basis in the record for the chancellor to order appellee to undergo further medical treatment and no penalty can devolve on appellee for failure to undergo further medical treatment. See Kingsport Silk Mills v. Cox, 161 Tenn. 470, 33 S.W.2d 90 (1930).

Appellant also questions the chancellor’s order that it pay medical bills of the Chese-more Clinic, Dr. Barnett, and the Jackson Clinic (Dr. Johnston) for examination and treatment of appellee. T.C.A. 50-1004 provides that the employer shall furnish within certain limitations

“such medical and surgical treatment, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus, such nursing services as ordered by the attending physician and hospitalization, including such dental work made reasonably necessary by accident as herein defined, as may be reasonably required; . . . The injured employee shall accept the medical benefits afforded hereunder; provided, that the employer shall designate a group of three (3) or more reputable physicians or surgeons not associated together in practice if available in that community from which the injured employee shall have the privilege of selecting the operating surgeon or the attending physician; . . . ”

In Proctor & Gamble Defense Corp. v. West, 203 Tenn. 138, 310 S.W.2d 175 (1958), it was pointed out that “the intent of the statute was for the employee to certainly do not less than consult his employer before incurring the expenses called for by that statute if the employee expects the employer to pay for it.” And where the employee incurs medical expenses on his own, the employer is not liable for payment of the expenses absent a showing by the employee that he had a reasonable excuse for not consulting with his employer before incurring the expenses. Rice Bottling Company v. Humphreys, 213 Tenn. 8, 372 S.W.2d 170 (1963). It is undisputed in the record that appellee incurred the controverted medical expenses without ever having expressed dissatisfaction with the medical treatment furnished by appellant and without prior consultation with or authorization by appellant. Further, the record is silent as to the reason why appel-lee did not consult with appellant. Absent such a showing, the chancellor erred in ordering appellant to pay the controverted medical expenses.

The decree of the chancellor ordering appellant to pay the controverted medical expenses is reversed; otherwise, the decree is affirmed. Costs will be paid by appellant.

FONES, C. J., and HENRY, BROCK and HARBISON, JJ., concur.


author: FONES, Justice.

text:
    Gilbert WHITE, Director of Finance, City of Knoxville and Jayne Ann Woods, Commissioner of Revenue, State of Tennessee, Appellants, v. RODEN ELECTRICAL SUPPLY COMPANY, INC., Appellee.
    Supreme Court of Tennessee.
    April 26, 1976.

      R. A. Ashley, Jr., Atty. Gen., William J. Haynes, Jr., Asst. Atty. Gen., Nashville, for appellants.
    W. L. Ambrose, Jr., Ambrose, Wilson, Lockridge & Grimm, Knoxville, for appel-lee.
   OPINION

FONES, Justice.

The issue presented here is whether ap-pellee taxpayer forfeits an otherwise valid tax credit under T.C.A. § 67-5814 because of a delinquent filing of its business tax return.

We affirm the Chancellor’s decision that the tax credit is not forfeited and was improperly denied by the taxing authority.

On February 14, 1975, appellee filed its business tax return for the taxable year ending November 30, 1974. Appellee claimed a personal property tax credit pursuant to T.C.A. § 67-5814 which authorized the credit to be taken through November 30, 1974, by taxpayers in appellee’s classification. The State disallowed this tax credit on the ground that appellee’s business tax return for that year was due by February 1, 1975, and the delinquent filing of its tax return operated to forfeit the tax credit to which it would otherwise have been entitled.

Appellee then paid under protest the additional tax incurred as a result of the disallowance of the tax credit and brought suit in Chancery Court to recover the tax paid under protest.

The Chancellor granted summary judgment for appellee, and appellants appealed to this Court pursuant to T.C.A. § 16-408.

Appellants argue that the cut-off date of November 30,1974, for the allowance of the personal property tax credit, coupled with the deadline for filing a non-delinquent tax return, operate to preclude appellee from claiming the tax credit for that year; and that any other construction would result in a virtually unlimited carryover period. We disagree.

Appellants’ argument that appel-lee has lost its tax credit derives no support from any provision of the Business Tax Act nor from any decision of this Court. The statute clearly states that any unused credit may be carried forward and taken as a credit through November 30, 1974. T.C.A. § 67-5808 provides that February 1 is the delinquent date for the filing of a tax return by a taxpayer whose taxable year ends on November 30 of the preceding year, and the specific provision of T.C.A. § 67-5826 provides the sole penalty for a delinquent filing.

Nor do we agree with appellants’ conclusion that the allowance of a tax credit on a delinquent return would result in a virtually unlimited carryover period. The tax credit is allowed only through November 30, 1974. That is the end of the carryover period; and a delinquent filing, no matter how delinquent, will not extend the carryover period beyond that date.

Our decision today is in accordance with the well established rule of this Court that the tax statutes are to be liberally construed in favor of the taxpayer and strictly, construed against the taxing authority. Memphis Peabody Corp. v. MacFarland, 211 Tenn. 384, 365 S.W.2d 40 (1963).

The decree of the Chancellor is affirmed with appellant to pay the costs.

HENRY, BROCK and HARBISON, JJ., and HYDER, Special Justice, concur.

      . T.C.A. § 67-5805 (classification 1).

      . T.C.A. § 67-5808(c)(1).

      . That section provides for a penalty of 15% with interest at 6% per annum for delinquent filing.


author: O’BRIEN, Judge. RUSSELL, Judge.

text:
    Larry P. BINGHAM, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Jan. 9, 1976.
    Certiorari Denied by Supreme Court March 22, 1976.
    Samuel E. Wallace, Nashville, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., William J. Haynes, Jr., Asst. Atty. Gen., Edward M. Yarbrough, Asst. Dist. Atty. Gen., Nashville, for defendant-in-error.
   OPINION

O’BRIEN, Judge.

This defendant was charged, tried, and convicted of escape in violation of T.C.A. Sec. 39-3802. He was sentenced to not less than one nor more than two years in the State Penitentiary.

The only assignment of error relied on here is the trial judge failed to instruct the jury that the defendant could be sentenced to a term in the Davidson County Workhouse for any period not to exceed eleven months and twenty-nine days under the provisions of T.C.A. Sec. 40-2703, which reads as follows:

“Place of confinement for terms of less than one year. — In no case shall any person convicted of a felony be confined in the penitentiary for less than twelve (12) months. Whenever the minimum punishment is imprisonment in the penitentiary for one (1) year, but in the opinion of the jury the offense merits a less punishment, the jury may punish by confinement in the county jail or workhouse for any period less than twelve (12) months except as otherwise provided.”

In this case, the jury was instructed in reference to their sentencing authority in these words:

“If you find the defendant guilty of the offense of escape from the Nashville Community Release Center while confined for a term less than life, the law provides that the defendant shall be imprisoned in the penitentiary for a term of not less than one (1) year nor more than five (5) years, and you, the Jury, are to fix the minimum and the maximum sentence which you think the defendant should serve.
If you find the defendant guilty, beyond a reasonable doubt, you will report your verdict as follows: ‘We, the Jury, find the defendant guilty of escape from the Nashville Community Release Center and fix the punishment at imprisonment in the Penitentiary for not less than 1 years minimum nor more than 2 years maximum. However, in the event you convict the defendant, the minimum sentence must not be less than one (1) year and not more than two (2) years, and the maximum sentence may not exceed five (5) years.”

In Jenkins v. State, 168 Tenn. 635, 45 S.W.2d 531, our Supreme Court had this to say:

“Error is also assigned on the failure of the trial court to instruct the jury that they had the right to commute the punishment to the county jail or workhouse for some period of time less than twelve months, if they deemed confinement in the penitentiary too severe punishment.
In State v. Chadwick, 131 Tenn. 354, 359, 174 S.W. 1144, 1146, this court said:
‘Notwithstanding the passage of chapter 8 of the Acts of 1913, section 7206 of Shannon’s Code is still in force, and should be given in charge to the jury in all cases where the punishment prescribed by law is as low as 12 months in the penitentiary.
‘It was the duty of the trial judge to give section 7206 of Shannon’s Code in charge without any request. Shannon’s Code, 7188.’ ”

In State v. Hughes, Tenn.S.Ct., 512 S.W.2d 552 (1974), in dealing with a somewhat different facet of the question, our Supreme Court concurred, with approval, in this court’s citation of Jenkins, supra, as authority for the proposition in issue here. We hold that the trial judge erred in failing to instruct the jury in accordance with the provisions of T.C.A. Sec. 40-2703. In view of the positive language of the jury instructions, “the minimum sentence must not be less than one (1) year and not more than two (2) years”, we are of the opinion the jury could easily have been mislead, and therefore, our Supreme Court decision in State v. Melvin James Dixon, Tenn., 530 S.W.2d 73, does not apply.

It does not result, however, that defendant is entitled to a new trial on the issue of his guilt of escape which is not questioned. In Lay v. State, Tenn.Cr.App., 501 S.W.2d 820, we said:

“ . When a defendant has had a fair trial by an impartial jury and his guilt established, his right to a trial by jury has been guaranteed, and there is no denial of any constitutional protection if a separate jury fixes his punishment. The precedent has been clearly established in this State. See Huffman v. State [200 Tenn. 487, 292 S.W.2d 738], supra; State v. Davis, 3 Tenn.Cr.App. 625, 466 S.W.2d 237.”

There is adequate precedent in Tennessee for bifurcated trials by a second jury after guilt has been legally found by a first. See Beaver v. State, Tenn.Cr.App., 475 S.W.2d 557. The case is remanded to the trial court for the fixing of punishment by a jury after introduction of such evidence as may be necessary, and proper jury instructions on the sentence for the offense.

GALBREATH, J., concurs.

RUSSELL, J., dissents.

RUSSELL, Judge.

The majority remand for a new trial as to punishment, because the trial judge erred in not charging the provisions of T.C.A. § 40-2703.

By the express terms of that statute, it is applicable only “when in the opinion of the jury the offense merits a less punishment” than a minimum of one year in the penitentiary. The jury in the case at bar set the punishment at one to two years, which is obviously more than the possible minimum of one to one. I therefore conclude that the error is harmless, since of necessity the jury must be said not to have found that the crime merited less than one year, since it actually set more than that penitentiary minimum.

A case precisely on point, as I read it, is State v. Melvin James Dixon, an opinion of our Supreme Court written by Mr. Justice Cooper and filed at Knoxville on November 17, 1975. Dixon was convicted of first degree murder in two cases and sentenced to sixty years in each case. The correct minimum punishment for the crime was, at that time, twenty years; but the trial judge erroneously charged the jury that twenty-five years was the applicable minimum. So, just as in the case at bar, an incorrectly inflated minimum punishment was charged, but the jury set punishment above the inflated incorrect minimum. The Supreme Court said:

“ * * * It is thus obvious that the jury, regardless of which provision of the law was in effect, had no intention of giving the defendant the minimum term and that consequently the minimum term for the offense of murder in the first degree was not a material factor in their determination of the sentences. Error in charging the minimum sentence to be inflicted is harmless error where it is obvious that the error could not have affected the sentence determined by the jury, (citing cases)”

I respectfully dissent.


author: GALBREATH, Judge.

text:
    Eugene HOWARD, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    Jan. 16, 1976.
    Certiorari Denied by Supreme Court April 12, 1976.

      Jerry H. Summers, Chattanooga, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, David H. Rotroff, Asst. Dist. Atty. Gen., Chattanooga, for defendant in error.
   OPINION

GALBREATH, Judge.

Basically at issue in this appeal is whether the evidence adduced on behalf of the State sufficiently linked the defendant, Eugene Howard, a Chattanooga policeman, with the sale of more than three pounds of marijuana to an undercover agent. The evidence has been accurately, with one glaring exception, summarized in the State’s brief as follows:

“At approximately 3:00 p. m. on November 4, 1973, Donald McKeel, an undercover narcotics agent of the Chattanooga Police Department, met the defendant, another police officer, and his friend Donnie Burns, a city fireman, in the parking lot of Wileys’ Draft Inn on Old Harrison Pike. As McKeel was getting into his car, the defendant drove up in his car and called to him “I got fifteen pounds in . would you like to buy some of it?” McKeel told the defendant that he would have to go to the bank because he did not have any money with him; to which the defendant replied: “Come on and get in the car, and we’ll go over there and get it now”. The agent responded that it was too late to go to the bank and that he would get in touch with the defendant later.
Agent McKeel contacted his supervisor Agent Joe Prank McCullough and Captain Pat Rowe about this incident. Subsequently, on November 7, 1973, Agent Rowe made a series of three telephone calls to the defendant at the county jail where he worked. The calls were made from Agent McCullough’s home in the presence of McCullough and Rowe and were also tape recorded. The first call took place at approximately 11:20 a. m. contained the following conversation, in part:
‘MR. HOWARD: City jail, Howard.
MR. McKEEL: Is this Officer Howard?
⅝ ⅜ ⅝ ⅜: ⅜ ⅝
MR. HOWARD; What do you need, Donnie McKeel?
MR. McKEEL: I need Smiley Burns.
MR. HOWARD: Well, he’s over at Raymond Rogers’ house, and I don’t have Raymond’s number, but he might be still over there, but if he ain’t, call the Ramada Inn.
MR. McKEEL: Well, you ain’t worth a shit, Gene.
MR. HOWARD: He’s supposed to call me at 2:30. How quick do you have to get ahold of him?
MR. McKEEL: Well, that would be fine this evening. Do you know what I’m talking about?
MR. HOWARD: Yeah.
MR. McKEEL: I want to get them this evening.
MR. HOWARD: Well, he probably wants you to get them too.
MR. McKEEL: Will he?
MR. HOWARD: Yeah. Let me— where you at?
MR. HOWARD: If not — well, look here, call me back in about, oh, an hour, that way I can tell you if I got ahold of him.
MR. McKEEL: Okay, and tell him what I need, hear?
MR. HOWARD: Okay.’
Agent McKeel made the second call as arranged, but failed to reach the defendant so he placed a third call at approximately 12:14 p. m. The following conversation ensued:
‘MR. HOWARD: City jail, Howard.
MR. McKEEL: Geno.
MR. HOWARD: Okay, hold on a minute.
MR. McKEEL: All right.
⅜ ⅜ * ⅜ ⅜ *
MR. McKEEL: Did you get in touch with him?
MR. HOWARD: Yeah, he’s — call him at home, 622, you know, 1302, ain’t that his number?
* * * * * *
MR. McKEEL: Yeah, you told him what I needed, though.
MR. HOWARD: Yeah.
MR. McKEEL: Okay, he’ll take care of it?
MR. HOWARD: Yeah.’
Following these telephone conversations, Agent McKeel received five marked one hundred dollar bills from Agent McCullough who had already recorded their serial numbers. At approximately 4:30 p. m. McKeel left the Mark Inn and drove alone to Kay’s Ice Cream. Agents McCullough and Rowe followed McKeel and parked across the street so that they could observe the transaction. McKeel met Smiley Burns’ wife in the parking lot of Kay’s Ice Cream. He parked next to Mrs. Burns’ car, got out of his car, and got into the passenger side of her car. There he saw a large green trash bag containing approximately four pounds of marijuana. The agent gave Mrs. Burns the five one hundred dollar bills he had received from Agent McCullough. He then got out of the car and Mrs. Burns drove off up Stuart Street.
As she drove away, McCullough and Rowe drove into the parking lot and took the bag from McKeel. After obtaining this evidence, Rowe and McCullough chased Mrs. Burns down Stuart Street and caught her three or four blocks from the scene of the transfer. She still had the five hundred dollar bills clutched in her right hand. Later, McKeel met Rowe and McCullough in the parking lot of the Red Food Store and filled out a report of the incident. Smiley Burns was arrested approximately four hours later at the defendant’s home. The defendant was arrested and charged at a later date.
The defendant took the stand in his own defense. He did not dispute any of the statements made in the taped telephone conversations and admitted that he knew that McKeel was trying to purchase marijuana. He claimed that he was working with another officer, George Walden, who was investigating McKeel, and that he had no intention of ever arranging for a purchase of marijuana. He also denied meeting Officer McKeel in the parking lot of Wiley’s Draft Inn on November 4, 1973. Officer Walden indicated that he was investigating the defendant and Smiley Burns. He testified that he knew that the defendant and Smiley Burns were friends and that he was aware that Burns had been dealing in drugs.”

We must call the State’s attention to omitted undisputed evidence in the record that tends to support the defendant’s contentions that he did not make the arrangements culminating in the sale of the drug to the undercover agent he claimed to be investigating himself. Agent McKeel testified on both direct and cross-examination that he, not the defendant, made the arrangements by telephone to purchase the marijuana from Mrs. Linda Burns, not Smiley Burns who his conversations with the defendant indicated would be the seller.

While it is altogether possible that the defendant had communicated McKeel’s desire to purchase the drug from Burns who, in turn, enlisted his wife as agent in completing the transaction, it is just as possible that Mrs. Burns was acting on her own without her husband’s knowledge. The natural although completely rebuttable assumption that may give rise to a strong suspicion that husband and wife act with the knowledge and approval of one another does not exclude the defendant’s theory that they may not have been, on this occasion, or that he had no contact with either.

The wife may have been acting as her husband’s agent but no proof of such agency is found in the record. Even in such an apparent principai-agent relationship as that existing between druggist and a clerk making unlawful sales of drugs from the store’s stock it has been held that proof was material to establish the authorization. People v. Zito, 237 Ill. 434, 86 N.E. 1041. In Tennessee a wife is not considered as such to be her husband’s agent unless it is made to appear that he has expressly or impliedly sanctioned what she has done. Catron v. Warren, 41 Tenn. 358. Surely this rule which protects those against whom civil liability is sought as a result of a wife’s transaction will protect those against whom criminal liability is charged.

The defendant’s criminal responsibility rests on even more tenuous grounds than would the seller’s husband since it would be derivative from an unproved authorization from one spouse to the other. It is not within our province to instruct those engaged in police work how to conduct their business, but it would seem that with very little additional effort or forbearance the defendant, if he did play a role in having Mrs. Burns sell the drug, could have been more directly linked with the crime. As matters appear from the record the circumstantial evidence relied on does not establish guilt.

“This is a circumstantial evidence case and the rule is well settled that the evidence must be consistent with the guilt of the defendants and inconsistent with their innocence, and sufficiently strong to overcome every other reasonable hypothesis except that of guilt.” Marie v. State, 204 Tenn. 197, 319 S.W.2d 86.

Error is assigned to the action of the trial judge in restricting testimony of witnesses relative to investigations allegedly being conducted by the defendant and other police personnel of suspected crimes committed by the principal state witness McKeel. In the event of retrial the defendant should be permitted to develop this proof to shed more light on his contention that he was deliberately attempting to mislead the undercover agent in his telephone conversations relative to assisting in the purchase of drugs as part of his efforts to obtain incriminating evidence of the agent’s participation in criminal activity. The restricted evidence to this effect was not offered on the collateral issue of credibility of the undercover agent, but on the principle issue of intent. The excluded evidence on this point would have bolstered the only defense advanced.

Other assignments urged on us have been considered and found unmeritorious.

Reversed and remanded.

WALKER, P. J., and DUNCAN, J., concur.


text:
    James Sanford BURNETTE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 10, 1976.
    Certiorari Denied by Supreme Court April 26, 1976.

      James S. Patrick, Hendersonville, Leslie Barham, Jackson, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Etrula R. Trotter, Asst. Atty. Gen., Nashville, George W. Hymers, Dist. Atty. Gen., Jackson, for defendant-in-error.
   OPINION

GALBREATH, Judge.

Plaintiff in error or Appellant has timely filed this appeal from the denial by the Criminal Court of Madison County of his petition for habeas corpus.

Petitioner was tried and convicted of a crime in Alabama. While that conviction was being appealed in Alabama, petitioner, on bond, came to Tennessee where he was subsequently arrested, tried and convicted upon a federal charge. He was then sent to Terra Haute, Indiana to serve the sentence imposed upon the federal conviction. While petitioner was imprisoned in Indiana his Alabama conviction was affirmed. Authorities in Alabama learned where petitioner was and lodged a detainer against him, as did their counterparts in Tennessee. Upon release from the Indiana institution on parole petitioner elected to return to Tennessee. The Alabama authorities then caused to be issued a Governor’s Warrant seeking extradition of petitioner to Alabama for the serving of his sentence. Governor Blanton, in turn, signed a Governor’s Warrant honoring that sent from Alabama and authorizing petitioner’s detention and deliverance to authorities from Alabama. A hearing, as provided under T.C.A. 40-1020 to test the legality of the warrant held on May 2, 1975 in the Madison County Criminal Court was attended by petitioner, an attorney appointed the day before to assist him, the Madison County District Attorney General, and a District Attorney from Alabama who had instigated the attempt to return petitioner to Alabama. The hearing was continued following testimony of the Alabama District Attorney to allow petitioner time to confer with attorneys and to prepare and file a Petition for the Writ of Habeas Corpus as also provided under the provisions of T.C.A. 40-1020. At the continuation hearing petitioner testified and counsel for petitioner and the State argued. The trial judge stated:

“All right, Gentlemen, what we have here is the State of Alabama has submitted that this man is wanted in the State of Alabama on a felony charge. The Governor of Alabama and the Governor of Tennessee have signed extradition papers.”
“This Court has the responsibility of determining whether the Defendant present here is the man wanted in the State of Alabama, and he is.”
“I realize his concern about some of these matters, and he may have a good defense in the State of Alabama, but the Court, this Court, is of the opinion that he should be released to the Alabama authorities, and I am so holding and it is so ordered. Prepare an order to that effect.”

The basis of the principal assignment of error is that petitioner was not a fugitive since the authorities in the State of Alabama knew where he was. After release from the federal institution in Indiana petitioner, by refusing to return to the demanding State, became a fugitive from it. A case which arose under the law of the State prior to the passage of the Uniform Extradition Act now in effect considered a remarkably similar set of circumstances. See State ex rel. Lea v. Brown, 166 Tenn. 669, 64 S.W.2d 841. It was there held that in a habeas corpus proceeding such as in that and this case, the only questions open for consideration are whether petitioner is charged with crime in the demanding state and is a fugitive from justice. It then went on to generally define “fugitive from justice” as “one who, being charged with crime in the demanding state, has fled therefrom.” The Supreme Court held further in Lea that one who voluntarily appeared in the foreign state to answer criminal charges, was tried and convicted, released on bond pending appeal, left the foreign state and failed to appear upon affirmance of the conviction was indeed a fugitive from justice.

The identity of the petitioner as the person whose activities were adjudged a crime in the demanding state is admitted. Further arguments advanced on behalf of the petitioner to the effect that Alabama has waived its right to his custody and that the authorities of that State have violated his right to an opportunity to have the sentence imposed in Alabama served concurrent to the subsequently imposed federal sentence are not supported by the record or any authorities cited.

The judgment of the trial court is affirmed. A pending contested motion to review bond is denied and petitioner will be held in custody by the Sheriff of Madison County until surrendered to the Alabama authorities; provided, however, if application is timely made to the Supreme Court for review by certiorari the defendant may be at liberty under $10,000.00 bail pending the disposition of such application.

WALKER, P. J., and DAUGHTREY, J., concur.


author: MORRISON, Judge.

text:
    Mark Steven LOVORN, Appellant, v. The STATE of Texas, Appellee.
    No. 51610.
    Court of Criminal Appeals of Texas.
    March 17, 1976.
    Rehearing Denied May 27, 1976.
    Jim W. Nettles, Beaumont, for appellant.
    Tom Hanna, Dist. Atty., and Jimmie R. Stanton, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal from an order revoking probation.

On November 21, 1973, appellant pled guilty to the offense of forgery of a prescription. Punishment was assessed at four years, sentence was suspended and appellant was placed on probation for a period of four years. On January 4, 1974, the State filed a motion to revoke alleging appellant had violated the terms of probation in that appellant possessed a controlled substance, preludin. This motion to revoke was dismissed upon motion by appellant. On January 20, 1975, the State filed another motion to revoke alleging (1) appellant possessed a controlled substance on or about the 23rd day of December 1974 in Alexandria, Louisiana and (2) that he engaged in an injurious and vicious habit; namely, “subcutanous [sic] injection of a controlled substance, to-wit: Preludin, a drug in tablet form intended and prescribed for oral consumption.” On March 21, 1975, a hearing was held and the trial court found the first allegation in the motion to revoke to be untrue and the second allegation true. Appellant’s probation was revoked for violation of the condition of probation “avoid injurious and vicious habits”, and appellant was sentenced to four years.

Appellant challenges the sufficiency of the evidence to support the trial court’s order revoking his probation. The evidence supports the finding that appellant was injecting preludin, a drug for which appellant had a lawful prescription from a doctor in Mississippi. However, there is no showing that the prescription drug preludin is or contains a controlled substance as alleged in the motion to revoke probation.

The witness Baker, a probation officer, testified that preludin was not an amphetamine and did not react in the body the same as amphetamines or stimulants. Baker was unable to state whether the drug preludin had an effect on the digestive system and gland system, but stated it would probably slow down the circulation. Baker also stated he did not know the generic name for preludin and that preludin was the only name he knew.

Preludin is not listed as a controlled substance in the Controlled Substances Act. The State made no offer of proof of the chemical composition of the drug preludin. The record reveals only that preludin is prescribed in the control of diet and as a mood changing drug to alter emotions.

The evidence does not prove by a preponderance of the evidence the State’s allegation that appellant injected a controlled substance. See Kubat v. State, Tex.Cr.App., 503 S.W.2d 258. The trial court abused its discretion in entering the order revoking appellant’s probation.

The judgment is reversed and the cause remanded.

      . The witness Baker stated he knew appellant had a drug problem and he was able to get appellant into a federal drug program in Arizona. Thus, statements made by appellant to Baker might have been inadmissible under Article 38.101, V.A.C.C.P. However, failure to object on this basis waived the privilege.