author: HENRY, Justice.

text:
    The METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY and Earl Hawkins, Criminal Court Clerk for Davidson County, Tennessee, Appellants, v. Percy L. ALLEN, Clerk of the Metropolitan Court, et al., Appellees.
    Supreme Court of Tennessee.
    Nov. 3, 1975.

      Larry H. Snedeker, Nashville, for Metropolitan Government.
    Seth W. Norman, Nashville, for Hawkins.

      Tyree B. Harris, Hooker, Keeble, Dodson & Harris, Nashville, for Rooker.
    Charles Patrick Flynn, Nashville, for Allen.
    Robert H. Schwartz, Nashville, for Robinson.
   OPINION

HENRY, Justice.

This action for a declaratory judgment seeks a determination as to the rights and responsibilities of the respective parties for administering what is known in this record as the “Metropolitan Division” of the Metropolitan General Sessions Court. Actually, the case and controversy as presented to the Chancellor and as briefed and argued on appeal distills itself into a single question, viz.:

Who serves as the Clerk of the General Sessions Court of Metropolitan Nashville and Davidson County?

The Chancellor, in a thorough and instructive opinion, held that the term “Chief Deputy Clerk now serving said Court” as used in § 14.20 of the charter “refers to the defendant Percy L. Allen.” He further held that should a vacancy occur in this office or in the clerical personnel handling metropolitan warrants, it would be filled by the appointment of the Presiding Judge of the Metropolitan General Sessions Court. In more direct phraseology he held that the Presiding Judge had the power to appoint the clerk handling metropolitan warrants in the Metropolitan General Sessions Court, subject to the rules and regulations of the Metropolitan Civil Service Commission.

I.

A proper determination of this controversy involves a consideration of the history of the general sessions court of Davidson County and the municipal courts of the old City of Nashville from the time of the creation of the general sessions court in 1937 until this court and the municipal court were merged in 1971.

The General Sessions Court of Davidson County was created by Chapter 12 of the Private Acts of 1937. It was divided into three parts, designated as Part I, Part II and Part III, each clothed with the same jurisdiction. By § 15 of the creating act it was provided that the

Clerk of the Circuit Court of Davidson County shall act as Clerk of said Court of General Sessions, and when acting as Clerk of said Court shall be designated “Clerk of Court of General Sessions of Davidson County.” (Emphasis supplied)

Two years later, by Chapter 219 of the Private Acts of 1939, the Legislature amended the 1937 act so as to provide

That the Clerk of the Criminal Court of Davidson County shall act as clerk of said Court of General Sessions in all criminal cases and when acting in such capacity shall be designated “Clerk of Court of General Sessions of Davidson County, Criminal Division." (Emphasis supplied)

As a result of these two enactments, for the next eight years the Davidson County General Sessions Court had two clerks.

We have examined the Nashville City Charter as set forth in Chapter 47 of the Private Acts of 1943. Article 19 relates to courts. By Section 192 a city court was created, with one judge provided. The mayor and city council were authorized to appoint clerks of the Court. Appeals were to the Circuit Court of Davidson County. (See § 198) This same charter provided for a Traffic Court Judge (Sec. 365), to be clerked by the clerk of the Violations Bureau (Sec. 367) with appeals to the Circuit Court of Davidson County (Sec. 370).

The two-clerk era came to an end in 1947 when the Legislature enacted Chapter 859 of the Private Acts of 1947, which provided in pertinent part:

That the Clerk of the Circuit Court of Davidson County shall act as Clerk of said Court of General Sessions, and when acting as Clerk of said Court shall be designated “Clerk of Court of General Sessions of Davidson County.” Said Clerk is hereby authorized to perform the duties of the respective parts of said Court. (Emphasis supplied)

It should be noted that the Nashville Charter of 1947 (Ch. 246, Private Acts of 1947) was approved by the Governor on 20 February 1947, some three weeks before Chapter 859 of the Private Acts of 1947. In this charter, the Clerk of the City Court is appointed by the City Judge, pursuant to Civil Service provision, and appeals from the City Court and Traffic Court are to the Circuit Court. (Articles 46 & 50).

By Chapter 462 of the Private Acts of 1951, the “Night Courts” (Parts IV & V of the General Sessions Court system) were created.

The appropriate charter provisions of the City of Nashville, through the 1951 legislative session, remained substantially the same. See Charter of City of Nashville, 1951.

By Chapter 124 of the Private Acts of 1959, an additional “night judge” was added (designated as Part VI).

In 1959 the Legislature created a comprehensive and statewide system of General Sessions Courts. See Chapter 109, Public Acts of 1959; Section 16-1101 et seq. T.C.A. Section 16-1116 provides, in part:

The clerk of the circuit court of the county shall act as clerk of general sessions, and when acting as clerk of said court shall be designated as the clerk of the court of general sessions of said county.

Section 1 of the Act, now codified as § 16-1101 T.C.A., excepted certain counties, by population brackets, (Davidson County was not so excepted), and, after so doing recites:

It is the intent of this chapter to hereby create a general sessions court in every county not expressly excepted from this section. (Emphasis supplied).

In Biggs v. Memphis Loan & Thrift Co., 215 Tenn. 294, 385 S.W.2d 118 (1964) this Court made it clear that the 1959 act superseded inconsistent private acts. The Court said:

While Courts of General Sessions had been created by private acts in many counties prior to the enactment of Chapter 109, Acts 1959, it was the purpose of that statute to create a statewide system of Courts of General Sessions except in the counties expressly excepted from the application of that statute. The purpose of the Legislature is expressed in the caption of the Act as follows:

“AN ACT to create and establish a Court of General Sessions in and for the various counties of Tennessee, and to define and prescribe its powers and jurisdiction and to provide for appeals from said Court” etc., 385 S.W.2d at 121.

From the effective date of this general law forward, the Circuit Court Clerk has been the Clerk of the Sessions Court, pursuant to this the controlling statutory scheme. Section 16-1116 T.C.A. contains an exception, not here applicable, continuing in office any separate clerk serving under a private act.

We have not overlooked the provisions of § 16-1124 T.C.A. relating to the effect of Chapter 109, Acts of 1959 on existing general sessions courts created by private act, and relating to jurisdiction. We do not feel that this section has any bearing on this controversy. Moreover, as a maximum, this section would continue the authority of the Circuit Court Clerk of Davidson County under the creating act and amendments thereto.

Metro was not in existence at this time and since the enactment of Chapter 859 of the Private Acts of 1947, the Clerk of the Circuit Court of Davidson County had been the Clerk of Court of General Sessions. There was, therefore, complete harmony between the general law and the private act (as amended) creating the Davidson County General Sessions Court system.

In summary, during the twenty-two year period from 1937 to 1959, the Davidson County Circuit Court Clerk was the Clerk of the General Sessions Court, except for an eight-year period during which a two-clerk system was employed. During the same period the City Court and the Traffic Court of the City of Nashville had been served by clerks designated by the respective judges, subject to the rules and regulations of the Civil Service System of the City of Nashville.

Then came Metro.

II.

Article 11, Section 9 of the Constitution of Tennessee, commonly known as the “home rule” amendment, was adopted by the Limited Constitutional Convention of 1953. It was subsequently approved by referendum, and was proclaimed by the Governor on 19 November 1953.

The last paragraph (amendment No. 8, as submitted to the electorate) provides, in pertinent part:

The General Assembly may provide for the consolidation of any or all of the governmental and corporate functions now or hereafter vested in municipal corporations with the governmental and corporate functions now or hereafter vested in the counties in which such municipal corporations are located; .

Responsive to this new and innovative constitutional provision, the General Assembly, by Chapter 120, Public Acts of 1957, provided procedures for the creation of metropolitan governments. These procedures are codified as § 6-3701 et seq., T.C.A.

Section 6-3719, T.C.A. as originally adopted, provided, in part:

Municipal courts created by the charters of the principal city and smaller cities may be provided for, consolidated or abolished by the charter for metropolitan government as courts thereof; . General sessions courts . . . established for the county shall be provided for and continued in the charter for metropolitan government as courts thereof.

Section 6-3704, T.C.A. provided a procedure for the creation of a “Charter Commission.” As an alternative it provided that the Commission might be created by private act of the general assembly. This alternative was followed and the general assembly enacted Chapter 408 of the Private Acts of 1961 creating a Charter Commission.

On 28 June 1962 the charter, as proposed by the commission, was approved by the voters of Nashville and Davidson County, in referendum.

Thus the Metropolitan Government of Nashville and Davidson County came into existence, effective, in the main, as of the first Monday in April 1963.

III.

Article 14 of the Charter relates to Metropolitan Courts.

Two wholly separate systems of courts were obviously contemplated, viz. (1) a Metropolitan Court and (2) a General Sessions Court.

The Metropolitan Court consisted of two judges, one (Division I) to hear and determine cases involving breach of ordinance, except traffic violations and the other (Division II) to hear and determine traffic cases. Each was given exclusive jurisdiction in its particular area. (See Sec. 14.01).

Section 14.08, relating to the Clerk, provided in part:

There shall be a Clerk of the Metropolitan Court, appointed by the Judges thereof. . . . The office of Clerk shall be a civil service position . . . There shall be provided by ordinance such deputy clerks and other assistants as may be necessary to the proper functioning of the Metropolitan Court. The positions thus created shall be under civil service.

Appeals from the Metropolitan Court were to the Circuit Court of Davidson County. (Sec. 14.06).

Section 14.12 relating to General Sessions Courts, provided as follows:

Courts of General Sessions for Davidson County created by Chapter 12 of the Private Acts of 1937 are hereby recognized as Courts of the Metropolitan Government of Nashville and Davidson County. Pursuant to Tennessee Code Annotated, Section 6-3719, said Courts are hereby provided for and continued, with all rights, duties, powers, obligations, privileges and responsibilities as set forth in said Chapter 12 of the Private Acts of 1937 and all Acts amendatory thereof. In addition to the above enumerated powers, the General Sessions Judges shall have power to issue warrants for the breach of Metropolitan ordinances in furtherance of the authority granted in Section 14.05 of this Article. (Emphasis supplied)

As of April 1, 1963, the effective date of the new Metro-Charter, we reiterate the Metropolitan Court, was wholly separate from the General Sessions Court. The former was served by its own clerk and the latter by the Circuit Court Clerk of Davidson County.

The merger of these two courts was yet to come.

IV.

In 1969 the general assembly, by Chapter 298 of the Public Acts, declared that, “for all purposes contained within the charter for a metropolitan government, judges of the general sessions court shall likewise be judges of the metropolitan court . . .” (Sec. 6-3719 T.C.A.)

Two years later by Chapter 9, Public Acts of 1971, the legislature amended Sec. 6-3719 by adding the following:

In counties where a general sessions court system exists prior to consolidation, the charter may consolidate municipal and general sessions courts by providing that judges of the municipal court of the principal city may become judges of the general sessions court, and that the general sessions court, in addition to jurisdiction and powers theretofore vested therein, shall also be vested with all the jurisdiction and powers vested in the municipal court of the principal city of the county prior to the creation of metropolitan government, and jurisdiction to hear, try and dispose of all cases arising under the laws, ordinances and resolutions of the metropolitan government.
The stage was now set.

This amendment, effective March 17, 1971, paved the way for a consolidation or merger of the general sessions and metropolitan courts in Nashville and Davidson County.

The Metro Council acted promptly. On 1 June 1971, it adopted Substitute Resolution No. 71-1222, proposing an amendment to the Metropolitan Charter, by abolishing and repealing all of Article 14 (except 14.10 relating to the office of public defender, and 14.11 relating to his compensation). This proposal was ratified by referendum election on 5 August 1971.

It creates a metropolitan general sessions court, divided into nine parts. (Sec. 14.01). Stated broadly it has all the jurisdiction formerly exercised by the Metropolitan Court and all exercised by General Sessions Courts under the laws of Tennessee. A complete merger is accomplished. (Secs. 14.02, 14.03).

The charter provision obviously contemplates that judges of Parts I through VI will be the conventional sessions judges and those of Parts VII, VIII and IX, will serve as successors to the old Metropolitan Court. (See §§ 14.04, 14.05); however, the Metropolitan Court loses its identity and no longer exists as such. From this point forward Metropolitan Nashville and Davidson County have only one court, a court of general sessions, sitting in nine divisions.

The office of Presiding Judge is created and his duties, powers, and responsibilities are defined. (See Sec. 14.09A). Separate dockets are to be kept for civil, criminal and traffic cases. (See. 14.09B). Appeals are to the Circuit Court of Davidson County where violations of ordinances are involved. (Sec. 14.26).

This action arises by virtue of a dispute as to the meaning of Sec. 14.20, which reads as follows:

One clerk’s office shall serve the metropolitan general sessions court, and the necessary clerks for the operation of ..the same shall be furnished by the criminal court clerk, Davidson County, Tennessee, for the operation of the criminal court part of the metropolitan general sessions court, and the said criminal court clerk shall designate one deputy clerk as chief deputy; and all necessary deputy clerks for handling the civil cases of the metropolitan general sessions court will be furnished by the circuit court clerk, Davidson County, Tennessee, who shall name one as chief deputy clerk; and the clerks now serving the three divisions of the metropolitan court are hereby transferred to the clerk’s office to handle the metropolitan warrants and procedures for the metropolitan general sessions court, and the chief deputy clerk, now serving said court, shall continue as chief deputy clerk, when all are transferred at their salaries now being paid. The salary of all personnel selected and serving the metropolitan general sessions court, as herein-above provided shall be established by the clerk appointing them, subject to the approval of the presiding judge, except those clerks involved in handling the municipal warrants, whose salary shall be approved by the presiding judge in accordance with the metropolitan pay schedule plan for the metropolitan government, Nashville, Davidson County, Tennessee. The deputy clerks shall be required to give bond upon the assignment of their duties of office, which shall be in the manner and amounts set by general law.

Essentially the dispute arises from the language of the first sentence. We use the phrase “first sentence” loosely, and only to indicate that portion of this section which precedes the first period. We are dealing with a “sentence” containing one hundred and fifty-one words. Actually it is a series of sentences — at least six in number — constituting a hodgepodge, disdainful of all known rules of grammar and defying definitive treatment.

As we read and construe § 14.20, it was the intention of the Metro Council to create a three-clerk system, with all operating out of a single clerical office. First there would be a “deputy clerk” handling the “criminal court part”, to be appointed by the Criminal Court Clerk. Secondly there would be a “chief deputy clerk” handling the “civil cases”, appointed by the Circuit Court Clerk. Finally, there would be a “chief deputy clerk” to handle “metropolitan warrants and procedures”.

V.

We are urged by Metro to hold that it was the intention of the council to create a new clerk’s office to handle municipal cases in the “Metropolitan Division” of the Metropolitan General Sessions Court, with the clerk to be appointed pursuant to Civil Service Rules.

Notwithstanding the use of the designation “Metropolitan Division” in the complaint, in the briefs and elsewhere in the record, this is merely an unfounded designation and apparently a hold-over from the days when Nashville had a Metropolitan Court. Divisions VII, VIII and IX, of the Metropolitan General Sessions Court, are the successors of the old Metropolitan Courts. But they continue to be General Sessions Courts clothed with all the jurisdiction, power and authority given such courts under laws of the State of Tennessee, and identical in all jurisdictional respects to the remaining divisions of the court.

Article 6, Section 13 of the Constitution of Tennessee provides, in part, as follows:

Judges of the Supreme Court shall appoint their clerks who shall hold their offices for six years. Chancellors shall appoint their clerks and masters who shall hold their offices for six years. Clerks of the Inferior Courts holden in the respective Counties or Districts, shall be elected by the qualified voters thereof for the term of four years. (Emphasis supplied).

We hold that the Metropolitan General Sessions Court of Nashville and Davidson County, Tennessee, in its entirety, is one of the “the Inferior Courts holden in the respective Counties”, within the contemplation of Article 6, Section 13 of the Constitution of the State of Tennessee. Its clerk must be an elected official.

We, therefore, hold that so much of this charter provision as apparently contemplates the appointment of a clerk (designated as chief deputy clerk) to handle metropolitan warrants and procedures, is unconstitutional and void.

This brings us back to the initial question, “who serves as the clerk of the General Sessions Court of Nashville and Davidson County?”

Our answer:

The clerk of the Criminal Court of Davidson County handles the “criminal court part” and the Circuit Court Clerk of Davidson County handles the “civil cases”. This charter provision operates to restore the two-clerk system.

But this does not fully answer the question. There remains for consideration a determination of the nature of the cases represented by “metropolitan warrants and procedures”.

We hold that these are civil.

In Metropolitan Gov’t of Nashville & Davidson County v. Miles, 524 S.W.2d 656 (Tenn.1975), this Court dealt with the violation of a city ordinance in the context of double jeopardy, as prohibited by Article 1, Section 10 of the Constitution of Tennessee and the Fifth Amendment to the Constitution of the United States. In that context we held that “a proceeding in a municipal court for the imposition of a fine upon a person for allegedly violating a city ordinance is criminal rather than civil in substance, in that it seeks punishment to vindicate public justice and, therefore, constitutes jeopardy under the double jeopardy clauses of the Tennessee and Federal Constitutions, and, consequently, the alleged offender, whether acquitted or convicted, cannot again be tried for the same offense in a state trial court of general jurisdiction over the timely objection of the defendant”. (Emphasis supplied).

Some of the language we used in Miles may have been overbroad — particularly our treatment of O’Haver v. Montgomery, 120 Tenn. 448, 111 S.W. 449 (1908) and O’Dell v. City of Knoxville, 214 Tenn. 237, 379 S.W.2d 756 (1963) in which we said:

(T)hose cases have been, at least impliedly overruled by the decision of this Court in State v. Jackson, 503 S.W.2d 185 (Tenn.1973).

More precise language — and language more in keeping with the thrust of our principal holding in Miles, which we reiterate — would have been:

These cases are not authority for the proposition that an appeal may follow an acquittal, after a trial on the merits in a case involving violation of a city ordinance.

This is what we actually held. We cited State v. Jackson, supra, which was bottomed upon United States of America v. Dickerson, 168 F.Supp. 899 (D.C.1958), which was a double jeopardy case holding that the constitutional protection against double jeopardy is applicable to all proceedings “whether they are denominated criminal or civil, if the outcome may be deprivation of liberty of the person”, and that “the test must be the nature and the essence of the proceeding rather than its title.”

When examined in the light of the foregoing, there is no conflict between the Miles-Jackson holding and that of O’Haver and O’Dell.

Proeedurally, cases involving violation of city ordinances continue to be civil in nature. Bristol v. Burrow, 73 Tenn. 128 (1880) and Deitch v. Chattanooga, 195 Tenn. 245, 258 S.W.2d 776 (1953).

They are in the nature of an action for debt. Memphis v. Smythe, 104 Tenn. 702, 58 S.W. 215 (1900). They are not criminal prosecutions, but are merely penal actions having as their object the vindication of domestic regulations. Guidi v. Memphis, 196 Tenn. 13, 263 S.W.2d 532 (1953). They are governed by rules in civil cases including the right to retrial on appeal to the circuit court where the matter will be heard de novo. O’Dell v. City of Knoxville, supra.

An appeal for the violation of a municipal ordinance is a civil action, triable de novo in the circuit court in precisely the same manner and under the same procedural rules as those governing tort actions instituted in the General Sessions Courts, to include the right to a jury trial. But, as held in Miles, the rules of double jeopardy apply to preclude an appeal from a judgment of acquittal. This seemingly incongruous result is mandated by the holding of the Supreme Court of the United States in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), and is supported by other cases cited in Miles.

VI.

We, therefore hold:

1. That the Criminal Court Clerk of Davidson County serves, ex officio, as clerk of so much of the docket of Metropolitan General Sessions Court as arises from cases originated in that court by state warrants. He has no duty or responsibility in connection with any case originated by metropolitan warrants.

2. That the Circuit Court Clerk of Davidson County serves, ex officio, as clerk of so much of the docket of the Metropolitan General Sessions Courts as arises from cases originated in that court by civil process, and of all cases involving metropolitan warrants and procedures, normally originating in Parts VII, VIII, and IX.

3. That defendant, Percy L. Allen, who is stipulated to be “the person in charge of the Traffic Violations Bureau” has no ex officio connection with the General Sessions Court.

4. That the Presiding Judge of the General Sessions Court has no appointive powers in relation to the Clerk of the Court or his assistants, and none may be given to him under the Constitution and laws of the State of Tennessee.

We view this as an undesirable result, realizing as we do, the manifest advantage, from a standpoint of effective judicial administration, of having a single clerk, and clerical personnel, appointed by and answerable to the Court. This desirable objective must, however, await the action of a future constitutional convention.

The decree of the Chancellor is reversed. The costs of this appeal are taxed against Metropolitan Nashville and Davidson County.

FONES, C. J., and BROCK and COOPER, JJ., concurring.

HARBISON, J., not participating.

      . Article 6, Sec. 13 of the Constitution of Tennessee, relating to clerks of courts, has no application to clerks of municipal courts and there is no requirement that these officials be elected by the qualified voters.

      . In 1943 Davidson County had a criminal court and had had one since the passage of Chapter 427 of the Public Acts of 1899.

      . It is stipulated that the defendant Allen is “the person in charge of the Traffic Violations Bureau.”

      . There was a four year period from 1943 until 1947 during which the city court clerk was appointed by the mayor and council.


source: Caselaw Access Project

author: BROCK, Justice.

license: Public Domain

text:
    Larry GARDNER and East Tennessee Baptist Hospital, Intervenor, Appellant, v. Jacqueline FLOWERS and Bridgett Flowers, Minor, b/n/f Polly Flowers, Appellee.
    Supreme Court of Tennessee.
    Nov. 10, 1975.

      Wade M. Boswell, Knoxville, for appellant.
    Ronald L. Billmyer and Charles Dungan, Maryville, for appellee.
   OPINION

BROCK, Justice.

Jacqueline Flowers, a child now ten years of age, received severe injuries in an automobile accident on June 7, 1969. She lives with her mother, who receives a welfare grant to meet the family’s needs. Jacqueline’s father does not support her. At the time of the automobile accident, Jacqueline received medical treatment of her injuries from the East Tennessee Baptist Hospital for which it has rendered a bill in the sum of $7,353.69. A partial payment in the sum of $2,082.40 has been made on this bill by the Tennessee Department of Public Welfare. The balance of $5,271.29 remains unpaid. Jacqueline, by next friend, brought an action for damages against the person alleged to have negligently caused the automobile accident and her injuries which has resulted in a net settlement of $7,125.00 for her. These funds remain in the hands of the Circuit Court Clerk as trustee for Jacqueline. The East Tennessee Baptist Hospital has intervened in the damage suit in an effort to subject Jacqueline’s funds in the hands of the clerk to the payment of the remainder of the hospital bill. The trial court heard the case upon a stipulation of the facts and determined the issue against the hospital and in favor of the minor. The hospital has appealed.

In general, an infant can avoid his contracts. Western Union Telegraph Co. v. Ausbrooks, 148 Tenn. 615, 257 S.W. 858, 33 A.L.R. 330 (1924). An exception is made if the contract is for “necessaries”; the infant is bound to pay the reasonable value of goods and services required for his own maintenance, McMinn v. Richmonds, 14 Tenn. 9 (1834), including medical care. Foster v. Adcock, 161 Tenn. 217, 30 S.W.2d 239 (1930). But, what do courts mean by “necessaries”? It is likely impossible to frame a definition to cover all cases; flexibility is both desirable and necessary. To be bound upon a contract for necessaries, the overriding requirement is that the infant must be in actual need of the goods or services in question. Whether such actual need exists depends upon (1) the nature of the goods or services, (2) the need of the infant for such goods or services at the time and (3) whether the infant has sources, other than his own credit, for supplying the needed goods or services. Only the last factor is questioned in this case, it being conceded that the medical services were of an essential nature and were needed by the infant at the time they were rendered.

Language in some of the cases which have considered this matter may lead one to the conclusion that an infant can never make a binding contract, even for essential goods or services, if he is living with a parent or guardian obligated to provide support. In the instant case we are of opinion that the law does not preclude the hospital from receiving payment out of the infant’s funds merely because the infant lives with her mother.

The argument against granting the hospital’s petition is based upon the decision of this Court in Foster v. Adcock, supra, wherein it was held that:

“. . . if the infant lives with his parent and is in his charge, custody, and control . . . and the care and protection of the parent is duly exercised in his behalf, he cannot bind himself for necessaries.” 30 S.W.2d at 240.

In Hoyt v. Casey, 114 Mass. 397, 19 Am.R. 371, cited with approval in Foster, the Court refused to make an exception to this rule on account of the fact that the infant’s father was a poor person who appeared to be unable to pay for medical services furnished to the child. The Court thought that “the poverty of the father would not be sufficient to render the son liable for necessaries furnished to him, but that the plaintiff must go further and show a refusal or neglect of the father to furnish them. . ” Id. at 399. Similarly, in the instant case it is argued that the only reason the mother of the minor has not paid the hospital bill is that she is an indigenf person who is receiving Aid to Families with Dependent Children, indicating, presumably, that inability of the parent to provide necessaries to the child is not relevant and that nothing short of willful refusal on the part of the parent to support the child will subject the latter’s property to the payment of debts for necessaries.

This line of argument mistakes the true relevance of the fact that a child is living in the home of a parent and is receiving support from him. In order to render the minor liable, proving that what was supplied is essential to life is only the first step; it must also be shown that the infant had actual need of the articles furnished. In re Johnstone’s Estate, 64 Ill.App.2d 447, 212 N.E.2d 143 (1965). If he is being supported by a parent or guardian, there is a presumption that the guardian provides all the necessities of life. Thus, when an infant who lives with a supporting parent makes a contract it is presumed that the infant’s contract was not for necessaries and, consequently, not valid against him, Nichol v. Steger, 74 Tenn. 393 (1880), or that the supplier’s contract (usually an implied contract) is actually with the parent, to whom he must look for payment. Foster v. Adcock, supra; Hoyt v. Casey, supra. In either case, the infant’s estate is protected.

But both Hoyt and Foster treat the supposed rule as a presumption or legal inference. In Hoyt it might have been proven that the infant defendant had contracted for necessaries, but, in the absence of proof, it was not assumed that he had. The Court observed that:

“. . . the father was keeping a family together, and was receiving the wages of this minor. While it was proved that he was unable to pay the debts he had incurred, he was, so far as it appeared, doing his best with the means at his command to provide for his family. . Ordinarily when one renders to another a valuable service, the law will imply a promise to pay . . . but no such implication can arise against a minor residing with his father, delivering over to him his wages, and entitled to look to him for support.” Id., 114 Mass, at 400.

In Foster, the father had already paid a substantial portion of the bill. On that basis, the debt was held to be the father’s obligation, and not that of the child. 161 Tenn. at 220, 30 S.W.2d at 240. The Court declined to presume that he would not be able to pay the balance in the future; there was an insufficient showing that the parent was unable to provide the services.

To the extent that cases like Foster and Hoyt may be deemed to lay down a rule of law rather than a mere evidentiary presumption, the proper application of the rule is to cases wherein the infant attempts to pledge his credit for food, clothing, or lodging, of his own choosing even though the parents maintain a home for him and furnish such necessaries in accordance with their means and their ideas of what the infant should have. This is how Tennessee cases have understood and applied it in the past. Elrod v. Myers, 39 Tenn. 33 (1858); Nichol v. Steger, supra.

In this case, according to the stipulated facts, the infant receives her support from a merciful government not from the mother’s efforts. Even if the mother had her own means of providing the ordinary needs of the family, it is conceded in the appellee’s argument that she has been financially unable to provide the needed hospital care. Thus, we hold that the infant’s situation is that contemplated by the exception to the general rule that an infant has no capacity to make a contract, viz., “the infant was destitute of the articles, and had no way of procuring them except by his own contract.” Ballinger v. Craig, 95 Ohio App. 545, 121 N.E.2d 66, at 67 (1953). See also Elrod v. Myers, supra, 39 Tenn. at 35, and Nichol v. Steger, supra. The cases from other jurisdictions are almost unanimous in saying, either expressly or by necessary implication, that the parents’ inability to provide necessaries to the infant is enough to bind the infant. Goodman v. Alexander, 165 N.Y. 239, 59 N.E. 145, 55 L.R.A. 781 (1901); Siegel v. Hodges, 15 A.D.2d 571, 222 N.Y.S.2d 989 (1961); Application of Stackpole, 9 Misc.2d 922, 168 N.Y.S.2d 495 (1957); Cole v. Wagner, 197 N.C. 692, 150 S.E. 339, 71 A.L.R. 220 (1929); Ballinger v. Craig, supra; Werner’s Appeal, 91 Pa. 222 (1879); Sohio Petroleum Co. v. Jurek, 248 S.W.2d 294 (Tex.Civ.App.1952); Contra, Hoyt v. Casey, supra. We agree with what appears to be the majority rule and hold that the inability of parents to pay for essential medical treatment for an infant renders such treatment a necessary for which the infant is liable.

There is authority to the effect that a party cannot be compensated unless the items were furnished on the infant’s own credit. Mackey v. Shreckengaust, 27 S.W.2d 752 (Mo.App.1930). In this state, however, the rule is that no express promise need be made by anyone and that a promise will be implied to enable persons entitled to compensation for necessaries to have it, even if the infant is so young that a meaningful express promise could not have been made. See Magnolia Courts, Inc. v. Webb, 63 Tenn.App. 209, 470 S.W.2d 16 (1971).

Neither party raises the issue of whether the hospital charges in this case exceed the reasonable value of the services rendered. But the infant is not held to any contract he might make, even for necessaries. Only a fair and reasonable price is to be charged. McMinn v. Richmonds, supra; Roberts v. Vaughn, 142 Tenn. 361, 219 S.W. 1034, 9 A.L.R. 1528 (1920); Magnolia Courts, Inc. v. Webb, supra. Thus, the question of reasonableness of the hospital’s charges will be determined upon remand.

The judgment of the trial court is reversed and this cause is remanded for further proceedings consistent with this opinion. Appellee will pay the costs of this appeal.

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


text:
    STATE of Tennessee, Petitioner, v. Franklin L. STEPHENS, Respondent.
    Supreme Court of Tennessee.
    Nov. 10, 1975.
    R. A. Ashley, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., Stephen Bevil, Asst. Dist. Atty. Gen., for petitioner.
    Robert H. Crawford, Chattanooga, for respondent.
   OPINION

HENRY, Justice.

We granted the State’s petition for cer-tiorari in this marijuana case and set it for argument along with State v. Gaddis and Davis, because they involved essentially the same questions.

The defendant was indicted on 24 October 1973. On 9 April 1974, some five and one-half months after indictment, he moved the court for an order “requiring the State to furnish the defendant or his attorney a specimen sample of the alleged marijuana or drug in order that an independent examination be made and that the defendant will have the benefit of such analysis in preparation of his defense in this cause.” This motion was overruled. He was put to trial on 23 May 1974, forty-four days after he had made his motion.

The Court of Criminal Appeals held that the sample should have been made available, and remanded the case under the guidelines of McKeldin v. State, 516 S.W.2d 82 (Tenn.1974), and with instructions to the trial court to permit reasonable inspection under such conditions as the trial judge may consider appropriate.

This ease is controlled by our decision in State v. Gaddis and Davis, announced today.

We, therefore, hold that the motion should have been granted. The fact that it was filed five and one-half months after indictment is indicative of dilatory practice but is of no legal significance. § 40-2044 T.C.A. specifically provides that the motion may be made “at any time after the finding of an indictment or presentment.” As we pointed out in Gaddis it “must be made in ample time so as not to result in a postponement or continuance of the final hearing.”

These motions meet the test.

The State insists that State v. Dougherty, 483 S.W.2d 90 (Tenn.1972) limits the right of discovery and operates to preclude the sample being made for testimony. In Dougherty the Court was dealing with an effort by the defendant to obtain statements of witnesses and other work products. Inter alia, the Court said:

We do not have broad discovery in criminal cases in Tennessee. Discovery in criminal cases is limited by T.C.A. Sections 40-2044 and 40-2441. 483 S.W.2d at 92.

We construed and implemented § 40-2044 in Gaddis and, as the latest pronouncement of this Court, it is controlling.

In Gaddis we said inter alia:

It is no answer to say that the State toxicologist, or other official, will make a competent and accurate analysis and make the result available to the defendant. This imputes to these examiners an aura of official infallibility inconsistent with the processes of the adversary system of the administration of criminal justice. We reject this approach.

This case is a classic — but we hope rare— example of why such an approach must be rejected out of hand.

The record shows that this defendant, in a companion case, was indicted for possession of a controlled substance or legend drug, to-wit methapyrilene. This is a medication used in the treatment of a common cold — an antihistamine.

The following excerpt from the cross-examination of the Director of the State Regional Toxicology Laboratory is frightening in its implications:

Q. All right. And when you run across a cold tablet, or vitamin B-12, would you not direct, gentlemen, this is not a controlled substance, it is not narcotic?
A. If asked I definitely tell them, that’s correct.
Q. Well, would you not, Mr. Smith, since this is a very important issue, freedom of a person involved, would you not advise specifically what you found?
A. Let me say this, at one time I would say within probably prior to this, we used to state on our report whether or not it was a legend drug. This was changed at a higher authority than me and so we no longer place it on our reports. When asked if things are legend drugs or not, I definitely answer the questions, and whether or not I was on this, I don’t know. Bill of Exceptions, Vol. II, pages 99-100.

It does not lie within our power to correct this slip-shod and irresponsible practice that resulted in an indictment of a citizen for possessing a cold tablet, but we can and do put it within the power of an accused citizen to obtain a test result that speaks the full truth.

The judgment of the Court of Criminal Appeals is

Affirmed.

FONES, C. J., COOPER and HARBI-SON, JJ., and INMAN, Special Justice, concur.


author: FONES, Chief Justice.

text:
    STATE of Tennessee, Petitioner, v. G. W. WILLIAMS, Respondent.
    Supreme .Court of Tennessee.
    Nov. 10, 1975.
    R. A. Ashley, Jr., Atty. Gen., Robert H. Roberts, Advocate Gen., Nashville, for petitioner.
    Hughie Ragan, Jackson, for respondent.
   OPINION

FONES, Chief Justice.

Williams’ post-conviction petition alleges that a violation of his constitutional rights occurred when his court appointed attorney (1) failed to petition the Supreme Court for certiorari when his conviction of a felony and twenty (20) year and a day sentence was affirmed by the Court of Criminal Appeals on November 6, 1973, and (2) failed to advise him of his “right of appeal” and of counsel’s intention not to pursue further review.

The State’s answer to the post conviction petition denied all material allegations, but, without an evidentiary hearing the trial judge entered a decree dismissing the petition as lacking merit.

While no factual determination was made in the trial court on the issue of whether or not Williams was advised of the last avenue of review or of counsel’s intention, said issues are not material unless we modify Hutchins v. State, 504 S.W.2d 758 (Tenn.1974). The record clearly reflects that no certiorari petition was filed in Williams’ case, lawyer assisted or pro se.

The Court of Criminal Appeals rejected the State’s contention that the United States Supreme Court has in effect overruled Hutchins by its decision in Ross v. Moffit, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). We granted the State’s petition for the writ of certiorari to consider the same issue.

I.

In Hutchins court appointed counsel abandoned his indigent client after the intermediate appellate court sustained his conviction without notice or advice of any kind.

“Under the facts in this case, the defendant’s rights were violated at that stage of the proceedings at which his court-appointed attorney should have advised him of his additional avenues of appeal, and of the action the lawyer planned to take in the case. Under these facts, the defendant was completely cut off from further appeal. Because of his attorney’s action he was even denied the opportunity to file a pro se petition for certiorari before the statutory ninety days expired for filing the petition. His deprivation was just as complete as if he were required to pay for that which he could not afford, such as a filing fee or a transcript.” (citations omitted). 504 S.W.2d at 762.

Under the factual situation presented in Hutchins the deprivation of a constitutional right was clear and it was unnecessary to hold that in every case the State is compelled to provide indigent counsel to petition for certiorari. Nevertheless, it is also clear that the opinion in Hutchins mandates a lawyer prepared petition for certiorari to this Court.

Ross v. Moffit, supra, does not involve the factual situation of an indigent abandoned under circumstances that deny the opportunity to file a pro se petition in the court of last resort. In fact, one of the reasons for not mandating lawyer prepared petitions is the finding that a pro se request for review provides an adequate basis of meaningful access to the North Carolina Supreme Court.

The essence of Ross v. Moffit, supra, is found in the two quotes that follow:

“The facts show that respondent, in connection with his Mecklenburg County conviction, received the benefit of counsel in examining the record of his trial and in preparing an appellate brief on his behalf for the state Court of Appeals. Thus, prior to his seeking discretionary review in the State Supreme Court, his claims ‘[had] once been presented by a lawyer and passed upon by an appellate court.’ Douglas v. California, supra, 372 U.S., at 356, 83 S.Ct., at 816. We do not believe that it can be said, therefore, that a defendant in respondent’s circumstances is denied meaningful access to the' North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking review in that court. At that stage he will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing of his case. These materials, supplemented by whatever submission respondent may make pro se, would appear to provide the Supreme Court of North Carolina with an adequate basis on which to base its decision to grant or deny review.” 94 S.Ct. at 2446.
******
“The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process. We think respondent was given that opportunity under the existing North Carolina system.” 94 S.Ct. at 2447.

The opinion also considers in detail the standards established by the North Carolina Legislature for review by the Supreme Court of that state upon petition for certio-rari. No legislative standard governs our certiorari review. But, we do not regard the distinctions between North Carolina and Tennessee’s scope of review on certiora-ri as having any significance in the consideration of the question before us. The significant similarity is that an indigent’s pro se petition in Tennessee presents to this Court a transcript of trial proceedings, a lawyer prepared brief in the Court of Criminal Appeals, and in all cases, an opinion of the Court of Criminal Appeals. Review at that stage, by this Court, is a meaningful search for errors prejudicial to a defendant.

Ross v. Moffit, supra, clearly establishes that the Federal Constitution does not mandate that a state provide counsel for an indigent defendant to pursue second tier discretionary appeals.

The rationale of Hutchins rests on (1) the policy in the Federal System as expressed in the Criminal Justice Act and Doherty v. United States, 404 U.S. 28, 92 S.Ct. 175, 30 L.Ed.2d 149 (1971); (2) the similarity of key expressions of T.C.A. § 40-2018 and 18 U.S.C. § 3006A(c); and (3) the implicit expectation that the United States Supreme Court would require that the states track the federal system by mandating lawyer prepared certiorari petitions for indigent defendants at the second tier discretionary level.

Since this Court’s decision in Hutchins there has been a significant increase in appeals that are in the ultimate category of useless advocacy, the completely frivolous appeal.

It is unethical for a lawyer to take a frivolous legal position in the courts of this State. Code of Professional Responsibility, Canon 7, Paragraph EC 7-4 and 7-5.

We take judicial notice that some indigent defendants have pursued six (6) or more post-conviction petitions, initiated pro se but thereafter mandatorily pursued to this Court, with state paid lawyer assistance because of the requirements of the post-conviction statutes and T.C.A. § 40-2018.

We abhor any law that forces a member of the bar to involuntarily commit a breach of ethics. Neither the Constitutions of our State or Nation nor the pursuit of equal justice under the law requires that taxpayers bear the expense of lawyer prepared frivolous appeals, under the guise of matching the rich man’s legal arsenal. The frivolous appeal of the wealthy defendant is as useless and meaningless as the frivolous appeal of the indigent.

Nevertheless, the policy considerations involved are for the Legislature. We cannot, in good conscience, reject the interpretation placed upon the Tennessee statute by the Court in Hutchins. We cannot reject its statement that the phrase “any appeal” includes appeal by certiorari petition to the Supreme Court. We cannot reject a statutory interpretation that is legally correct, on the ground that it was unnecessary to the decision in Hutchins and therefore dictum.

If this regrettable situation is to be corrected, it must be done by a legislative amendment to T.C.A. § 40-2018. The threat of United States Supreme Court mandate having been removed by Ross v. Moffit, supra, all that remains is the mandate of the Tennessee statute. If that mandate is removed the rights of indigent defendants can be fully protected by this Court’s traditionally established procedures of certiorari review, without lawyer assistance in every case.

Lawyer assistance at this level should be state supported only when the lawyer who has appealed an indigent defendant’s case to the Court of Criminal Appeals unsuccessfully, believes that there is sufficient merit in one or more assignments of error to justify a lawyer assisted certiorari petition, or upon a pro se certiorari petition, this Court finds that the issues are such that lawyer assistance in this Court will be meaningful.

The judgment of the Court of Criminal Appeals is affirmed. This case is remanded to that Court for the entry of a judgment vacating the order heretofore entered and reinstating that order so as to start anew the statutory period for filing a petition for certiorari, lawyer assisted.

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

      . In the Federal Act, “at every stage of the proceedings from his initial appearance before the United States magistrate or the court through appeal.” The Tennessee statute, “at all stages of the proceedings before the court which appointed him, and also upon any appeal.”

      . Our research into the definition and use of the word “appeal” leads us to the inescapable conclusion that, as used in the context of this statute, it is unquestionably broad enough to include certiorari review. 4 C.J.S. Appeal and Error § 17, p. 90; Black’s Law Dictionary, Tennessee Central Railroad Company v. Campbell, 109 Tenn. 640, 75 S.W. 1012, 1013 (1903).


text:
    STATE of Tennessee, Petitioner, v. Thomas CHRISTMAS, Respondent. STATE of Tennessee, Petitioner, v. Yon McLEMORE, Respondent (two cases). STATE of Tennessee, Petitioner, v. Tommy PETERS, Respondent. STATE of Tennessee, Petitioner, Von McLEMORE and Tommy Peters, Respondents.
    Supreme Court of Tennessee.
    Nov. 10, 1975.

      R. A. Ashley, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., H. Kenneth Death-erage, Dist. Atty. Gen., for petitioners.
    Edward Michael Ellis, Charles H. Child, Knoxville, for respondents.
   OPINION

HENRY, Justice.

We granted the State’s petition in these consolidated drug cases and set them for oral argument along with State v. Gaddis and Davis because they raised essentially the same questions.

In each of these cases the defendant moved the court for an order directing the district attorney general to furnish a sample of the controlled substance “to enable the defendant to have this substance analyzed in order to properly put forth a defense”. As a part of the same motion, the defendant in each case moved the court to grant a continuance “in order to allow an analysis of the controlled substance allegedly found in the defendant’s possession.”

The trial judge disallowed the motion. The Court of Criminal Appeals vacated the judgment and remanded to the trial court under the guidelines of McKeldin v. State, 516 S.W.2d 82 (Tenn.1974) for a determination of whether the denial of the samples was harmless error.

The following tabulation is pertinent to the inquiry:

CASE DATE OF NUMBER INDICTMENT DATE OF DATE OF MOTIONS TRIAL
44 11-7-73 2-2-74 2-22-74
45 " 2-13-74
46 " 2-13-74
47 " 2-19-74
48 " 2-12-74

While there is authority to the contrary, we attach no significance to the fact that the motions for a sample were made eighty-seven days after indictment. The overriding consideration is that the motions were made 20, 11, 11, 17 and 10 days, respectively, before trial. The motions show facially that a grant of the motions for samples would necessitate a continuance.

This Court, in the case of State v. Gaddis and Davis, decided this date, announced guidelines governing drug samples. As a part of these guidelines we said:

A motion for such inspection and analysis may be made at any time after arrest but must be made in ample time so as not to result in a postponement or continuance of the final hearing. A motion not so made may be treated as filed untimely, in the discretion of the trial judge.

In Gaddis, we stressed that reciprocity is involved in pre-trial discovery. It would be manifestly unfair to the State for the defense to come into court on the day of trial with a test result therefore unseen by the district attorney and which he had had no opportunity to check out with the State’s toxicologist. We reiterate pre-trial discovery, in criminal cases, is a shield and not a sword. The rights must be reciprocal and neither party will be permitted to “bush-wack” the other.

The judgment of the Court of Criminal Appeals is

Reversed.

FONES, C. J., COOPER and HARBI-SON, JJ., and INMAN, Special Justice, concur.


author: COOPER, Justice.

text:
    SECURITY INSURANCE COMPANY, INCORPORATED, Appellant, v. George HUGHES, Appellee.
    Supreme Court of Tennessee.
    Nov. 17, 1975.
    Jeffrey L. Cleary, Luther, Anderson, Ruth & Cleary, Chattanooga, for appellant.
    Gene Sinor, Chattanooga, for appellee.
   OPINION

COOPER, Justice.

This is a workmen’s compensation case. The employee, George Hughes, was found to have a thirty-five per cent permanent partial disability to the body as a whole as the result of “strains and sprains of his neck and lower back and other injuries” sustained in the course and scope of his employment by Hi-Lo Industries. The appellant, Security Insurance Company, Inc., the workmen’s compensation insurance carrier for Hi-Lo Industries, insists there is no competent evidence that appellee’s disability is permanent. No issue is made by either party as to the award of temporary total disability benefits, or of medical expenses.

Appellee has a third grade education and his training and labor has been limited to that of an upholsterer of furniture and a truck driver. On November 8, 1973, he was working as a truck driver for Hi-Lo Industries, delivering furniture in Hutchinson, Kansas. In unloading the furniture, appel-lee stepped upon the wheel-box of the truck to get a chair that was caught and the chair fell on his head. Appellee grabbed onto other furniture in the truck in an effort to keep his balance, with the result that a stack of chairs fell on him. Appellee was given emergency treatment in a hospital in Sikeston, Missouri. Thereafter, he drove the truck back to Cleveland, Tennessee, where he was hospitalized and treated by Dr. Garry McAllister, an orthopedic surgeon. In late January, 1974, Dr. McAllister referred appellee to Dr. Richard Donaldson for treatment of the cervical injury. Both Dr. McAllister and Dr. Donaldson testified by deposition. Both doctors stated that ap-pellee suffered strains and sprains of the cervical and lumbar area in the accident of November 8, 1973. The symptoms of injury and their longevity led both physicians to conclude there was a good possibility of protruded or ruptured disc, with a nerve root involvement. The possibility was so strong that Dr. Donaldson indicated that if the symptoms continued for another month or so, he would suggest an exploratory lumbar surgery. Dr. Donaldson also testified that appellee could not work as a truck driver. However, when asked whether ap-pellee’s disability to work was permanent, Dr. Donaldson testified that he was not able to say “at this time” that appellee has permanent physical disability.

Dr. McAllister expressed the opinion that if appellee’s symptoms continued to persist, appellee could be expected to have some permanent disability from the injury of November 8, 1973. When pinned down on the issue of permanency of disability, Dr. McAl-lister stated:

“Q. Okay. So at this point in time, Doctor, you would not have an opinion or would not know whether he has any disability?
“A. Right
“Q. But you would have to forego that opinion [that is, that plaintiff had permanent disability] until it was determined whether or not he did have any cervical injury or nerve root injury.
“A. Right.
“Q. Okay. So you do not have an opinion at this time as to his disability.
“A. Right.”

In a case of this nature, permanent disability must be shown by expert medical testimony. Floyd v. Tennessee Dickel Distilling Company, 225 Tenn. 65, 463 S.W.2d 684 (1971). While the evidence in this case shows a good possibility that appellee’s disability from the November 8, 1973, accident is permanent, the treating physicians refused to testify “at this time” that appellee’s disability was permanent. Absent such testimony, we have no alternative but to reverse the chancellor’s award of benefits for permanent partial disability. In like cases, in the interest of doing complete justice to the parties, this court has remanded the case for the taking of proof on the issue of permanency of disability and its companion issue, the extent of the permanent disability if any is found to exist. Floyd v. Tennessee Dickel Distilling Company, supra; Minton v. Leonard, 219 Tenn. 642, 412 S.W.2d 886 (1967).

Accordingly, that part of the decree of the chancellor awarding benefits for permanent partial disability is reversed and the cause is remanded for a trial upon the issues of permanence and the extent of the disability, if any, of George Hughes as the result of his on-the-job injury of November 8, 1973. Costs of the appeal will be divided equally between the parties.

FONES, C. J., HENRY and HARBISON, JJ., and INMAN, Special Justice, concur.


author: CARNEY, Presiding Judge.

text:
    Louis Francis MONTESI, Plaintiff-Appellant, v. Shirley Sanders Riddle MONTESI, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section.
    Nov. 19, 1973.
    Certiorari Denied March 18, 1974.

      Charles G. Black, Memphis, for appellant.
    Sam F. Cole, Jr., Memphis, for appellee.
   CARNEY, Presiding Judge.

The plaintiff below, Louis Francis Mon-tesi, has appealed from a decree of the Circuit Court of Shelby County dismissing his original bill for divorce. The Trial Judge also refused to grant separate support and maintenance to the defendant, Mrs. Montesi, on her cross bill. The plaintiff, Louis Montesi, is 54 years of age and has been married three times. The defendant is 29 years of age and has been married twice. The parties were married May 12, 1972, in Coral Gables, Florida, and separated on or about July 7, 1972, a period of only 56 days. There were no children born to this marriage.

The plaintiff, Louis Montesi, has children born to his first marriage but no children born to his second marriage. The defendant has a son born to her first marriage.

Mr. Montesi’s first wife, the mother of his children, was murdered about three years before the trial in the present case. Mr. Montesi was indicted, tried, and convicted of second degree murder. He obtained a reversal from the appellate court and was ultimately exonerated from all guilt in the death of his first wife. He married a second time. This marriage did not last very long and ended in divorce.

The plaintiff, Louis Montesi, is a member of a prominent grocery family in the City of Memphis. His mother is still living and exercises some control over the family fortune. At any rate, it appears without dispute that the plaintiff, Louis Montesi, is accustomed to spending considerable amounts of money on himself and on his family. He has had a very severe drinking problem for a number of years. It seems that he periodically has had to leave Memphis and go to a sanitarium in northern Mississippi to “dry out.” The defendant was well aware of the drinking problem at the time she married the plaintiff. Plaintiff promised defendant to quit drinking.

After a brief marriage of 56 days, defendant, Mrs. Montesi, left Mr. Montesi taking with her a brand new Cadillac worth $8,000 and two new fur coats. Mr. Montesi hired a private detective to locate Mrs. Montesi and brought suit for divorce also contending that she had taken the 1972 Cadillac without his permission and contending that it did not belong’ to her. Mrs. Montesi gave as her reason for leaving Mr. Montesi that he drank to an excess and oftentimes soiled himself and the bedclothes in his drunken stupor; that on at least one occasion he threatened to choke her.

Mr. Montesi averred that Mrs. Montesi was extravagant; that he spent $5,000 on their honeymoon in Florida and the West Indies which included a $2,000 diamond ring and her wardrobe; that immediately upon the return from the honeymoon she insisted that he buy her a $9,000 Cadillac; that the defendant insisted on the plaintiff renting for her a very expensive apartment; that she spent $5,000 on furnishings; that she demanded that he deposit $20,000 in her name in the bank for her to spend as she pleased; that she was insisting that he build a $100,000 home on a $36,000 lot complete with riding stable, horses, etc.; that the plaintiff was supposed to observe a very rigid diet and the defendant refused to cooperate with him and to provide him regular meals; that the defendant had spent a considerable time during their married life with a former husband openly and notoriously, and that the defendant had called plaintiff’s second wife and asked for information as to how she might divorce the plaintiff and that she had physically assaulted him when he refused some of her demands for money.

His Honor the Trial Judge submitted to the jury some twenty issues of fact in four different questionnaires.

The jury found that Mr. Montesi did not make an attempt or threaten the life of Mrs. Montesi; that Mr. Montesi did drink alcoholic beverages to an excess and embarrassed his wife while he was intoxicated; that he did make a gift of the 1972 Cadillac and certain furs to his wife; that he was guilty of such cruel and inhuman treatment or conduct toward Mrs. Montesi as renders cohabitation unsafe and improper. The jury found that Mrs. Montesi did live with her ex-husband, spending nights in his residence during the period of the marriage and that Mrs. Montesi was guilty of cruel and inhuman treatment of the plaintiff, Louis Montesi, while they were living as husband and wife.

We copy the following pertinent portions of the final decree:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that plaintiff, Louis Francis Montesi is guilty of such cruel and inhuman treatment or conduct toward his wife as renders cohabitation unsafe and improper to be under the dominion and control of her husband. But, that Louis Montesi did not abandon defendant and cross-plaintiff Shirley Montesi, or turn her out of doors, and refuse or neglect to provide for her; that plaintiff, Louis Francis Montesi did not offer such indignities to his wife’s person as to render her condition intolerable, and thereby force her to withdraw.
The original bill is dismissed.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that defendant and cross-complainant is guilty of such cruel and inhuman treatment or conduct toward her husband as renders cohabitation unsafe and improper for him to longer cohabit with her, and that, therefore, she is not entitled to separate support and maintenance as prayed in her cross-complaint, but the jury having found on a fact that plaintiff, Louis Francis Montesi, did give his wife, Mrs. Shirley Riddle Montesi, the 1972 Cadillac automobile and two (2) mink stoles, the cross-bill or cross-complaint is sustained only so far as she is entitled to the 1972 Cadillac automobile and two mink stoles, but not otherwise or further.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that heretofore the defendant, Mrs. Shirley Riddle Montesi, was found guilty of contempt of Court and fined therefor, and the Court sustains and reaffirms the fine adjudged against her.
AND, IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that divorce and separate support and maintenance are remedies for the innocent against the guilty, and both parties hereto having been found guilty or at fault, neither party is entitled to any other or further relief than herein above adjudged.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that each of the parties pay one-half of the cost of the cause.
Wallace J. Smith
JUDGE DESIGNATE
3/23/73”

The appellant insists that the jury was an advisory jury only and that this Court should review the action of the Trial Court de novo as was done in McDade v. McDade, 45 Tenn.App. 487, 325 S.W.2d 575. This was not an advisory jury because the jury was demanded by Mrs. Montesi as she had a legal right so to do. The material evidence rule does apply and we hold that there was material evidence to support the findings of fact by the jury. Gibson’s Suits in Chancery, 5th Edition, Section 591, “How Appellate Courts Review Jury Trials.”

Solicitor for the appellant who did not try the case below very earnestly insists to this Court that we should apply the doctrine of comparative rectitude. This doctrine, generally stated, is that in divorce cases where both parties are guilty of misconduct for which a divorce may be granted, the Court will grant a divorce to the one who is less at fault. Appellant cites 24 Am.Jur.2d, Divorce and Separations, Section 228, page 380; and Akins v. Akins, 1969, 61 Tenn.App. 506, 456 S.W.2d 354.

Appellant insists that the jury found' Mrs. Montesi guilty of adultery which is a much more serious offense than the plaintiff’s cruel and inhuman treatment and that, therefore, the plaintiff should be granted a divorce because the marriage is obviously unsalvageable. Respectfully, we observe that the jury did not find Mrs. Montesi guilty of adultery and that plaintiff did not charge her with adultery. He merely charged her with cruel and inhuman treatment. The jury found only that Mrs. Mon-tesi had spent some nights in the home of her ex-husband who also had custody of their minor child. There was no mention of adultery anywhere in the case except in appellant’s brief.

This Court has decided that the case must be reversed and remanded for a new trial for the reason hereinafter set out and we deem it improper to make a ruling on the question of comparative rectitude.

Appellant’s assignment of error No. I insists that His Honor the Trial Judge was in error in failing and refusing to grant a new trial because one of the jurors upon the trial below sat as a member of the jury which convicted the plaintiff of murder in the second degree of his first wife. The juror did not reveal this fact upon the voir dire examination. The juror, Mr. J. T. Le-gette, was asked, “Now, do any of you know either myself (Mr. Cole, solicitor for appellee) or Mr. Scruggs or any of the parties, do you recognize any of us, have you ever seen us before?” The juror, Mr. Legette, remained silent. Some of the jurors admitted knowing one or more of the lawyers engaged in the trial of the case. The juror, Legette, was asked specifically if he had heard anything in the news media that would cause him to be prejudiced toward Mr. Montesi to which he replied in the negative.

Mr. Legette was under an affirmative duty to the Court and to the parties to state in his voir dire examination that he did know Mr. Montesi and that he had sat on the jury which convicted him of second degree murder.

We copy Section 208 of 47 Am.Jur.2d, page 796, as follows:

“Sec. 208. Duty of juror to make true and full disclosures.
Full knowledge of all relevant and material matters that might bear on possible disqualification of a juror is essential to a fair and intelligent exercise of the right of counsel to challenge either for-cause or peremptorily. Accordingly, it is the duty of a juror to make full and truthful answers to such questions as are asked, neither falsely stating any fact nor concealing any material matter. The voir dire oath administered to jurors prior to their examination enjoins them to tell the complete and entire truth. Moreover, it has been held that where a prospective juror has been asked a question on voir dire which if answered in the affirmative would tend to disqualify him, the question is answered in the negative by the said prospective juror’s silence. When a juror is asked on voir dire examination if he knows of any reason why he cannot sit as a juror, it is his duty to state any relationship that he may have to a party, and if he fails to do so, a litigant has a right to rely upon his answer that there is none.”

Mr. Legette’s failure to reveal his participation in the criminal trial of Mr. Montesi misled Mr. Montesi’s attorney to his prejudice. Mr. Montesi’s attorney was entitled to challenge Mr. Legette for cause “propter affectum” and if the challenge “propter affectum” had been denied, then he would have been entitled to challenge peremptorily. He did not use any of his challenges on the trial below.

On the authority of Toombs v. State, 197 Tenn. 229, 270 S.W.2d 649, we hold that the defendant was denied his constitutional right to a fair and impartial jury. Assignment of error No. I is sustained. The decree will be reversed and the cause remanded for a new trial.

Appellee’s assignment of error that the Trial Judge erred in failing to set aside a judgment of contempt against her is overruled.

The costs in this Court will be taxed to the appellee. The costs in the lower Court will abide the decree of the lower Court upon remand.

MATHERNE and NEARN, JJ., concur.


author: OLIVER, Judge. GALBREATH, Judge

text:
    Louis Allen McCRACKEN, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 11, 1975.
    Certiorari Denied by Supreme Court June 30, 1975.

      E. G. Moody, Kingsport (appointed), for plaintiff in error.
    Milton P. Rice, Atty. Gen., John B. Ha-gler, Jr., Asst. Atty. Gen., Nashville, Carl K. Kirkpatrick, Dist. Atty. Gen., Blountville, for defendant in error.
   OPINION

OLIVER, Judge.

Louis Allen McCracken, an inmate of the State Penitentiary where he is serving three consecutive felonious assault sentences of not less than three nor more than 18 years adjudged in the Criminal Court of Sullivan County on January 28, 1972 while represented by appointed counsel, as he is in this proceeding, has appealed to this Court from the judgment of that court dismissing his post-conviction petition after an evidentiary hearing. His felonious assault convictions and sentences were affirmed on direct appeal to this Court. McCracken v. State (Tenn.Cr.App.1972), 489 S.W.2d 48.

We may take judicial notice of the record of the petitioner’s direct appeal to this Court. State ex rel. Leighton v. Henderson, 1 Tenn.Cr.App. 598, 615, 448 S.W.2d 82; Canupp v. State, 3 Tenn.Cr.App. 249, 250, 460 S.W.2d 382; State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667. Accordingly, we have carefully reviewed McCracken’s entire trial record.

It is well to mention at the outset that relief under our Post-Conviction Procedure Act is granted “. . . when the conviction or sentence is void or voidable because of the abridgement in any way of any right guaranteed by the constitution of this state or the Constitution of the United States, including a right that was not recognized as existing at the time of the trial if either constitution requires retrospective application of that right.” TCA § 40-3805.

In his present petition McCracken charged that he was denied his right to a preliminary hearing, that he was never advised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 nor allowed to call an attorney, that he was denied his right to an attorney at his arraignment, that his appointed trial attorneys inadequately and ineffectively represented him because they did not call his available subpoenaed witnesses and tricked him into keeping his witnesses off of the witness stand by assuring him that in the event of conviction he would be granted a new trial in 30 days, and that the verdicts of the jury were improperly rendered in the assault cases because the trial judge required the jury to state its verdict separately in each case. In his petition he also included a motion for a copy of the transcript of his original trial. In his Assignments of Error here he complains that the trial judge ruled against him on each point.

In the evidentiary hearing upon this petition, McCracken testified he was arrested June 21, 1971 and was indicted on June 29, 1971 and arraigned later the same day; that the same day, June 29th, when he was taken to Bristol for a preliminary hearing which he had requested, the officers escorting him were told by Deputy Sheriff Team-er that the grand jury had already returned eight indictments against him and instructed them to return him to jail. (The original trial record brought before this Court on the defendant’s direct appeal shows that the three felonious assault presentments and also five kidnapping presentments were returned against the defendant by the grand jury on June 29, 1971, each charging the offense was committed on June 21, 1971, and James Teamer was named as the prosecutor in each presentment). He said he was denied a preliminary hearing and that no attorney had been appointed for him at that time and he had not been advised that he was entitled to counsel. He conceded that the presentments against him were returned before he requested a preliminary hearing, and also stated he knew of no way he was prejudiced by not having a preliminary hearing.

McCracken also testified that on Thursday, June 24, 1971, three days after he was arrested, he was taken to a room in the jail and there questioned by Deputy Teamer; that he was never advised of any of his rights at that time and was not allowed to make a telephone call to a lawyer although he asked permission to do so; that he does not know what he told Officer Teamer, if anything, which would incriminate him and does not know what the officer did with the information he obtained in the interview; and that he did not subpoena Teamer for the evidentiary hearing.

With reference to his trial counsel, the petitioner testified that counsel was first appointed for him on July 7,, 1971;. that that attorney withdrew and some three weeks later another was appointed; that the latter also withdrew, purportedly because of their inability to get along; that the two attorneys who finally represented him at his trial were appointed about the first of September and his trial began on October 5, 1971; and that, until he was found guilty, he had no complaints against his trial counsel. He said “They tried.”

With respect to his charge that his attorneys assured him he would be granted a new trial if convicted, the petitioner testified that while the last prosecution witness was testifying, his appointed Attorney Edwards told him that he should not testify or present any witnesses, because they had reached an agreement with the judge and the Attorney General that he would get a new trial within 30 days, and his other trial counsel (Attorney Tate) was present when Edwards told him of the agreement; that neither the District Attorney General nor the trial judge ever said anything to him about any such agreement.

Concerning his charge that his trial attorneys did not call his witnesses, he testified they did not call three named witnesses he had them subpoena, and that he asked them to subpoena four other named witnesses and they failed to do so. But he also conceded that he did not know what any of those persons would have testified if they had been called as witnesses.

According to the petitioner, the gist of his complaint about the manner in which the jury announced the verdicts was that the trial judge asked the jury to specify in each of the assault cases the name of the person assaulted. Where by consent several indictments against an accused are tried together, a separate verdict must be rendered on each and the jury should distinguish between the indictments in their verdicts. 23A C.J.S. Criminal Law § 1404; Fontaine v. State, 65 Tenn. 514.

Attorney Wythe Edwards, one of the petitioner’s appointed trial attorneys, testified that he never guaranteed the petitioner a new trial; that he talked several times with the petitioner about the case and that it was the petitioner himself who decided, during a trial recess, not to put on a defense; that the petitioner and the two trial attorneys had a complete discussion concerning the options available to him and he then decided not to testify or put on any witnesses; that he interviewed all the witnesses the petitioner mentioned to him; and that he appealed the conviction all the way to the Tennessee Supreme Court and was able to get five of the eight convictions reversed on appeal. The other appointed trial attorney for the petitioner testified that he never heard Edwards guarantee the defendant a new trial, nor did he ever do so himself, and that it was the defendant who made the decision not to put on any defense.

The record of the petitioner’s trial shows that an attorney was appointed to represent him on 2 July 1971 and was released upon his own motion on July 6th and two other attorneys were appointed to represent the petitioner on the same day; that the latter two were relieved upon their motion on July 30, 1971 and Attorneys Edwards and Tate were appointed on that date; and that the trial began October 5, 1971 and was concluded the following day.

The law is settled in this State that a preliminary hearing is not constitutionally required. Shadden v. State (Tenn. Cr.App.), 488 S.W.2d 54, cert. den. 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199; Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1; McKeldin v. State (Tenn.S.Ct.1974), 516 S.W.2d 82. And when, as in this case, after an indictment or presentment has been returned against an accused by the county grand jury, representing its finding of probable cause to believe that he committed the offense charged therein, clearly a preliminary hearing to re-determine the same question is not required. TCA § 40-1131; Shadden v. State, supra.

The petitioner’s claim that he was arraigned without an attorney is refuted by the trial court’s Minutes, which show that when he was called to plead to the presentments on July 2, 1971 the trial judge found him to be indigent and appointed Attorney Frank Slaughter to represent him and that no pleas were made at that time nor until the trial began on October 5, 1971.

It is a settled principle of law that the duly authenticated Minutes of a court import absolute verity and may not be contradicted or impeached by collateral attack in post-conviction proceedings. State ex rel. Newsom v. Henderson, 221 Tenn. 24, 424 S.W.2d 186; State ex rel. Folds v. Hunt, 216 Tenn. 195, 391 S.W.2d 629. “So far as they are records of judicial proceedings, they import absolute verity, and are conclusive unless attacked for fraud.” Howard v. State, 217 Tenn. 556, 399 S.W.2d 738.

The authenticated trial transcript filed here by the petitioner as his Bill of Exceptions shows affirmatively, contrary to his contention now, that he was permitted to make a telephone call at the jail. There is nothing whatever in that record to indicate whether or not he was subjected to custodial interrogation, but the record contains no reference by any witness to any custodial statement by the petitioner.

Testifying in his evidentiary hearing about his request for a copy of his trial record, the petitioner said he earns only about $14.00 a month in prison and is indigent. He said he wanted a copy of his trial transcript because he could not remember everything that happened or was said in the trial and he wanted to look for something. He conceded that he wanted it just to go on a fishing expedition through it to see what he could find. TCA § 40-3813 does not obligate the State to furnish at its own expense a complete record of his trial to a petitioner until and unless he demonstrates to the satisfaction of the trial court, after filing his post-conviction petition, that the record or requested portions of it will be of reasonable assistance to him in establishing his right to the relief sought. Dotson v. State (Tenn.Cr.App.1971), 477 S.W.2d 763. See also: Jones v. State, 3 Tenn.Cr.App. 76, 457 S.W.2d 869; Elliott v. State, 222 Tenn. 294, 435 S.W.2d 812; Hardy v. U. S., 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331. The trial court committed no error in declining to furnish the petitioner with a free transcript of his original trial record.

At the conclusion of the evidentiary hearing, in a somewhat detailed finding of facts the trial judge rejected each of the petitioner’s claims.

In considering Assignments of Error challenging the correctness of the trial judge’s findings and dismissal of the petitioner’s petition, we are bound to adhere to the settled rule that the findings of the trial court, upon questions of fact, are conclusive unless this Court finds that the evidence preponderates against the lower court’s judgment. Such findings of a trial judge in an oral hearing, who sees and hears the witnesses testify, and hears and considers conflicting testimony, will be given the weight of a jury verdict. Miller v. State (Tenn.Cr.App.), 508 S.W.2d 804; Bratton v. State (Tenn.Cr.App.), 477 S.W.2d 754. In this case we cannot say that the evidence preponderates against the trial court’s findings.

In a habeas corpus or post-conviction proceeding, the burden is on the petitioner to prove his allegations attacking the validity of his conviction. Miller v. State, supra, and cases therein cited. This petitioner has failed to carry that burden.

But over and beyond all we have said with reference to the petitioner’s allegations and his Assignments of Error here, it should be noted that he is also precluded from raising all of those questions and waived them by his failure to raise them in his motion for a new trial in the trial court and in his direct appeal to this Court. Arthur v. State (Tenn.S.Ct.1972), 483 S.W.2d 95; Pruett v. State (Tenn.S.Ct.1973), 501 S.W.2d 807.

Affirmed.

DWYER, J., concurs.

GALBREATH, Judge

(concurring).

I find it inappropriate and inaccurate to state that “it is a well settled principle of law that the duly authenticated Minutes of a court import absolute verity and may not be contradicted or impeached by collateral attack in post-conviction proceedings.” As noted in the next sentence by the majority, the minutes of a court may be attacked for fraud. Mistake is another grounds for challenging the authenticity of a minute entry. Surely a petitioner who could successfully prove by the trial judge and others in a position to know that the minute entry fixing his punishment at ten years in the penitentiary was inaccurate in that a zero had been inadvertently added by the clerk and signed by the judge so as to seemingly add nine years to a one year sentence. The reason and logic making such error curable in post-conviction proceedings is embodied in the American Bar Association Standards Relating to Post Conviction Procedure:

A duly authenticated record or transcript, or portion thereof, may be used in evidence of facts and occurrences during prior proceedings. Such record or transcript should be subject to impeachment by either party. Standard 4.6(c)(i)

With this observation, I concur in Judge Oliver’s opinion.


author: OLIVER, Judge.

text:
    Jessie Orion PRINCE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 18, 1975.
    Certiorari Denied by Supreme Court Sept. 2, 1975.

      Marvin E. Gordon, Shelbyville, for plaintiff in error.
    Milton P. Rice, Atty. Gen., William B. Hubbard, Asst. Atty. Gen., Nashville, James S. Kidd, Dist. Atty. Gen., Fayetteville, for defendant in error.
   OLIVER, Judge.

OPINION

The defendant below, Jessie Orion Prince, is in this Court by his appeal in the nature of a writ of error contesting the validity of his conviction of concealing stolen property valued in excess of $100, for which he was sentenced to imprisonment in the State Penitentiary for not less than three nor more than six years. He has been represented throughout by retained counsel, releasing his trial attorney and employing another after his case reached this Court.

As is usually the case, the defendant assails his conviction upon the ground that the evidence preponderates against the verdict of the jury and in favor of his innocence, basing that insistence in part upon his contention that the verdict rests solely upon the uncorroborated testimony of accomplices. He elected not to testify or present any evidence.

In summary, the evidence shows that during the night of August 19, 1971 the Ashby Hardware Store in Fayetteville, Lincoln County, was burglarized and 41 assorted guns were stolen; that 36 of the guns, of the aggregate wholesale value of $3700, which the store owner identified by his purchase invoices and serial numbers, were returned to him by the Lincoln County Sheriff at the county jail on 23 September 1971; that in the latter part of August of 1971, the defendant contacted Kenneth Nichols and asked him if he was interested in buying some guns, and as a result of their conversations Nichols went to the defendant’s home in Bedford County and examined 37 guns the defendant had in a storage room of his house; that Nichols discussed the matter with Coy Landers and they decided to buy the guns together and Landers gave him $1400 as his share of the purchase price; that Nichols borrowed Clay Martin’s car and he and his son went to the defendant’s house where Nichols and his son and the defendant loaded the guns into the car and he ¡¡aid the defendant for them a day or two later; that when Nichols returned Martin’s car to his place of business Martin was interested in buying the guns but didn’t have the money and they were left in the trunk of Martin’s car overnight; that the next day Nichols took the guns to Landers’ apartment and they stored them in the basement; and that about six weeks later Bedford County Sheriff Sanders, Lincoln County Deputy Sheriff Askins and Tennessee Bureau of Identification Agent Winningham talked with Nichols at his place of employment about the guns and he and Landers went to the latter’s apartment and got the guns and delivered them to the officers at a roadside park in Bedford County, and the guns were then taken to the Lincoln County Jail where the owner identified them.

Tested by the familiar rules governing appellate review of the evidence in criminal cases when its sufficiency is challenged on appeal, enunciated almost countless times by the Supreme Court of this State and by this Court and to which we must adhere, Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799; McGill v. State, 4 Tenn.Cr.App. 710, 475 S.W.2d 223, surely it cannot be said that the evidence in this case is insufficient to warrant and support the verdict of the jury.

Nor is there any merit in the defendant’s claim that the verdict is founded on the uncorroborated testimony of accomplices. An accomplice is one who knowingly, voluntarily and with common intent unites with the principal offender in the commission of the crime. Hicks v. State, 126 Tenn. 359, 149 S.W. 1055; Monts v. State, 214 Tenn. 171, 191, 379 S.W.2d 34; Moore v. State, 1 Tenn.Cr.App. 190, 432 S.W.2d 684; McAfee v. State, 3 Tenn.Cr.App. 424, 426, 463 S.W.2d 141; Pennington v. State (Tenn.Cr.App.), 478 S.W.2d 892. Unquestionably, under this legal definition of the term and the facts and circumstances shown in the proof, Kenneth Nichols was not an accomplice. The defendant’s crime of concealing stolen property occurred before Nichols bought the guns from him, and there is no evidence that Nichols collaborated in the defendant’s concealment of the guns. It may be that Nichols and Landers were guilty separately, but certainly neither of them joined or united with the defendant in his own crime of concealing the guns. For the same reasons Nichols’ son was not an accomplice of the defendant. Thus, not being accomplices, the established rule that a conviction cannot be had upon the uncorroborated testimony of an accomplice, Henley v. State (Tenn.Cr.App.), 489 S.W.2d 53; Scola v. State, 4 Tenn.Cr.App. 485, 474 S.W.2d 144; Monts v. State, supra; State v. Fowler, 213 Tenn. 239, 245, 373 S.W.2d 460, has no application to their testimony and cannot be invoked by this defendant. Their testimony stood alone and did not have to be corroborated.

In another Assignment the defendant complains of the trial court’s failure to dismiss prospective juror Stubble-field for cause during the voir dire examination. After some discussion with this prospective juror, in which the District Attorney General and defense counsel and the court participated (in which Mr. Stubble-field indicated some misgivings about whether he could decide the case fairly and impartially on the evidence because of his past experiences in acquiring and operating a restaurant, his accounts, and having a plate glass window broken out by vandals— but said he would enter into the trial with an open mind and do his best to be fair and impartial), the court ruled that he was competent. When defense counsel excepted, the court reminded him that he had a challenge left if he wanted to use it to excuse this juror. In his argument here, defense counsel admits that he had one peremptory challenge left. This Assignment must be overruled. Where the defendant in a criminal prosecution has peremptory challenges remaining and does not exercise them, he cannot complain of the court’s action in overruling his challenge of a qualified and competent juror for cause. Hale v. State, 198 Tenn. 461, 281 S.W.2d 51. We are satisfied that the trial court correctly held Mr. Stubblefield was qualified and competent as a juror.

Assignments that the court erred “in permitting the prosecutor to ask leading questions of his own witnesses throughout the trial,” and “in permitting the prosecutor to improperly present evidence by his own witnesses throughout the trial,” “in permitting the prosecutor to improperly produce evidence through witness, TBI Agent Win-ningham, whose conduct and statements were highly improper during cross-examination and by permitting the prosecutor to improperly produce evidence through Kenneth Nichols due to his condition,” and “in not striking improper arguments before the jury” must fail because they are not accompanied by any brief containing a citation of the authorities relied upon nor any citations to the record relied upon to show each proposition of fact alleged. Tennessee Supreme Court Rules 15 and 17(1), duly adopted by this Court (2 Tenn.Cr.App. 746); Roberts v. State, 4 Tenn.Cr.App. 537, 474 S.W.2d 165; Rockett v. State (Tenn.Cr.App.), 475 S.W.2d 561.

The remaining Assignments of Error, viz., that the trial court erroneously refused to quash the indictment due to insufficiency as to date and time, erroneously allowed the District Attorney General to introduce secondary evidence in the form of a list of the guns allegedly taken instead of the guns which could have been held and used as evidence, and erroneously took over the examination of a witness and asked questions “designed to insure the admissibility of certain evidence,” and erred in refusing to allow defense counsel “to clear up a question on cross-examination and to have that witness answer the question, and in ordering the attorney to proceed to the next question,” were not included in the defendant’s motion for a new trial. Thus, he is confronted by the settled rule that, having failed to raise these questions in his new trial motion, he is precluded from raising them here for the first time. The law of this State is that, absent any patent invalidating error, the trial judge will not be put in error upon matters not brought to his attention for correction in the motion for a new trial, and Assignments of Error which were not incorporated in the new trial motion will not be considered on appeal. Jenkins v. State (Tenn.Cr.App.), 509 S.W.2d 240; Pulley v. State (Tenn.Cr.App.), 506 S.W.2d 164; Rule 14(4) and (5) of the Tennessee Supreme Court Rules, adopted by this Court (2 Tenn.Cr.App. 746).

Without retreating from those fundamental principles, it is appropriate to add that the indictment in this case is not defective for omitting to state the month and day in 1971 when the alleged offense was committed.

TCA § 40 1808 provides:

“Time of offense. — The time at which the offense was committed need not be stated in the indictment, but the offense may be alleged to have been committed on any day before the finding thereof, or generally before the finding of the indictment, unless the time is a material ingredient in the offense.”

The punishment for concealing stolen property having a value of more than $100 is penitentiary imprisonment for not less than three nor more than 10 years. TCA § 39 4217(C). A prosecution for that offense shall be commenced within four years next after the commission of the offense. TCA § 40 203. The indictment in this case was returned on April 4, 1972 and alleged that the offense occurred in 1971. Thus, this prosecution was commenced long before expiration of the applicable statute of limitations, TCA § 40 203.

The rule is that the offense must be proved to have been committed prior to the finding of the indictment and within the time specified by any applicable statute of limitations; and, except where a special date is essential or time is of the essence of the offense, the time of the commission of the offense averred in the indictment is not material, and proof is not confined to the time charged. State ex rel. Tines v. Bomar, 205 Tenn. 572, 329 S.W.2d 813, cert. den. 363 U.S. 822, 80 S.Ct. 1262, 4 L.Ed.2d 1519.

This rule is explained in State v. Shaw, 113 Tenn. 536, 82 S.W. 480:

“The rule to be deduced from our cases is that, where there is no statute of limitations barring the offense, it is unnecessary to state the day, or even the year, but it is sufficient to aver generally that the offense was committed before the finding of the indictment; that it is not necessary to state in any case the day on which the offense was committed, unless the day itself is of the essence of the offense, as of offenses committed against laws passed for the preservation of the Sabbath, or unless the time is important to bring the offense within the operation of new or amended statutes or the like; but where there is a statute of limitations that bars the offense there should be a sufficiently definite averment of time in the indictment to show that the offense was committed within the statutory limit; and, finally, that where an impossible date is given, as in the present indictment, it will be disregarded if the offense is one as to which there is no statute of limitations, or as to which the date itself is not important.”

And in Green v. State, 176 Tenn. 449, 143 S.W.2d 713, the Court said:

“In State v. Shaw, 113 Tenn. 536, 82 S.W. 480, the rule is said to be that ‘where there is no statute of limitations barring the offense, it is unnecessary to state the date, or even the year, but it is sufficient to aver generally that the offense was committed before the finding of the indictment; that it is not necessary to state in any case the day on which the offense was committed, unless the day itself is of the essence of the offense,’ etc. And this is the general rule, thus well stated in Wharton’s Criminal Evidence, pages 1824 1826: ‘Within the limitations, first, that the offense must be proven to have been committed prior to the finding of the indictment, and, second, that the offense must be proven to have been committed within the time specified by the statute of limitations, and except where a special day is essential, or where time is the essence of the offense, the time of the commission of the offense as averred in the indictment is not material, and the proof is not confined to the time charged.’ ”

In accord is State v. Yates, 217 Tenn. 160, 395 S.W.2d 813.

See also: Bosley v. State, 218 Tenn. 134, 401 S.W.2d 770.

Nor is there any substance to the defendant’s complaint that the court ignored the best evidence rule in permitting introduction of the list of the guns instead of the guns themselves. The best’ evidence rule applies only to writings and documents. Brown v. State, 186 Tenn. 378, 210 S.W.2d 670; Williams v. State, 179 Tenn. 247, 165 S.W.2d 377.

Affirmed.

WALKER, P. J., and O’BRIEN, J., concur.