author: WALKER, Presiding Judge.

text:
    Andrew MACKEY, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Jan. 28, 1975.
    Certiorari Denied by Supreme Court April 12, 1976.

      Charles 0. Ragan, Jr., Chattanooga, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., Nashville, Stephen M. Bevil and Thomas J. Evans, Asst. Dist. Attys. Gen., Chattanooga, for defendant-in-error.
   OPINION

WALKER, Presiding Judge.

In two cases heard together the jury convicted Andrew Mackey, the defendant below, of rape and fixed his punishment at 65 years and of armed robbery and fixed his punishment at 20 years in the penitentiary. The trial judge ordered consecutive sentences. Mackey appeals in error.

The state’s evidence showed that about 1:30 p. m., April 24, 1974, Mrs. Laura Cline was alone in her Chattanooga home when the defendant, wearing a hard hat, rang her doorbell. He told her he worked for the electric power board and had been sent there to cut trees. A power board truck, later found to have been stolen, was parked outside.

Mackey looked up and down the street, asked if her husband were home; and when she said he was not, he forced his way into the house, choking her with one hand and holding a screwdriver to her ribs with the other. He demanded that she take off her pants. They struggled and she tried to divert him by offering him money. After taking money from her wallet and from a small wooden bank (plus money from another little bank), he finally forced her into the bedroom where he raped her.

Mackey demanded to know if there were any rifles in the house and threatened to kill her if she lied to him. After first telling him they had none, she told him the location of the gun cabinet and he took two rifles out of it.

After raping Mrs. Cline, he tied her up, ordered her to remain quiet and proceeded through the house, returning from time to time to see that she was still tied. He learned from her the location of the telephone and ripped it from the wall. He told her that if she called the police he would come back and kill her and further that if she called the police he would go to the penitentiary.

Mrs. Cline was finally successful in freeing herself and ran into the street half clothed and told the first person she saw that she had been raped. Mackey also ran from the house, leaving the hard hat there, and fled in the truck.

Mackey’s fingerprints were found on the wooden bank he had broken into. Mrs. Cline gave his description to police and positively identified him at the trial. He was arrested in Georgia and confessed there to Chattanooga officers. His written confession of both crimes was admitted into evidence. In it he detailed his activities before, during and after the crimes.

The defendant filed a plea of not guilty and not guilty by reason of insanity. He did not testify before the jury but offered testimony from his mother and father as to his mental condition. They said that in the months before these incidents the defendant was not acting normally and seemed “off;” that he had suffered a head injury in high school and his behavior had changed. His parents said he did not appear to know the difference between right and wrong although they retreated from this to some extent on cross-examination.

In rebuttal the state called Dr. James Cheatham, a psychiatrist, who said he examined the defendant July 8, 1974, at the Hamilton County jail and found him to be without any mental disorder and competent to stand trial. In his opinion the defendant on April 24, 1974, had the mental capacity to distinguish right from wrong.

A number of assignments of error concern the defendant’s sanity, both present and at the time of the crime.

In challenging the trial court’s denial of his plea of present insanity, the defendant insists that he was entitled to a jury trial of that question, relying principally on Caruthers’ History of a Lawsuit, Eighth Edition, Sec. 735.

In Cogburn v. State, 198 Tenn. 431, 281 S.W.2d 38 (1955), our Supreme Court said:

“ ‘. . . (T)he method that shall be ordered of determining the present sanity of the accused before the beginning of the trial generally rests in the discretion of the trial judge, with or without the aid of a jury. He may inquire into the facts himself, or he may impanel a jury for the purpose if he sees fit, or he may submit the question as an issue to the trial jury.’ ”

Under this rule a defendant is not entitled to a jury trial on the issue of present insanity. The trial judge can make the determination himself which he did here. On the basis of all the relevant information before him, the trial judge found the defendant competent to stand trial. More was not required and this assignment is overruled.

Related to the first assignment are those saying (a) the court erred by denying his pretrial motion for a psychiatric examination; (b) the brief examination of defendant by Dr. Cheatham was so inadequate that it deprived him of his due process rights and (c) the court erred in denying the defendant’s pretrial motion for an eviden-tiary hearing on the motion for psychiatric examination and for a subpoena to compel the attendance of Dr. Cheatham to determine if his examination was fair and adequate.

On January 6, 1975, the defendant filed a petition for psychiatric examination which was overruled January 20, 1975. An oral motion to rehear was then made and denied that day and renewed and denied on the trial date, January 28,1975. The defendant says he was denied due process of law based on TCA 33-708 and United States Supreme Court decisions.

Both Tennessee decisions and the federal constitution prohibit the trial of a defendant whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist in preparing his defense. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). See Cogburn v. State, supra. In Drope and Pate the court determined that the state statutes of Missouri and Illinois were constitutionally adequate but declined to hold they were constitutionally mandated. The court said the state statutes there jealously guarded the rights of the defendant in this regard.

TCA 33-708 (Evaluation of an accused believed incompetent to stand trial) protects these rights and says basically that when a person charged with crime is believed to be incompetent to stand trial the court, on its own motion, that of defense counsel or others, may order the defendant evaluated. The standard is one of “belief” and the judge has discretion as is indicated by the use of “may” in ordering an evaluation. (emphasis added)

The Drope court in discussing Pate noted that Pate did not prescribe a general standard with respect to the nature or quantum of evidence necessary to require resort to an adequate procedure. Drope said that evidence of a defendant’s irrational behavior, his demeanor at trial and any prior medical opinion on competence are all relevant on the issue, but there are no fixed or immutable signs which indicate the need for further examination.

Under these standards the trial court did not err in denying the motion for a further examination. He had before him a recent report of a psychiatrist finding the defendant competent to stand trial along with a 1971 report to the same effect. Even Dr. Conroy’s 1970 report on which the defendant relies says that the defendant was competent to handle VA funds. In considering the motion, the trial judge also had before him the defendant’s contentions based on Dr. Conroy’s 1970 report that the defendant was schizophrenic, the motions and affidavits of his counsel, his service record, his 19 pending indictments and his apparent suicide attempts.

The Drope and Pate cases show extremely bizarre conduct of those defendants far surpassing that of Mackey.

Balancing all of the factors involved, the trial court correctly denied these motions.

Dr. Cheatham was firm in his view that the defendant was competent to stand trial. He did not waiver in his testimony, and we find no error in the court’s failure to call him for examination before the trial. Nothing in his examination shows a violation of the defendant’s right to due process of law.

In his testimony at the suppression hearing on the confession, the defendant clearly showed his knowledge of the offenses charged and his ability to assist his counsel in his defense. His conduct during the commission of the crime showed his knowledge of right from wrong and that he would be punished if he was caught. His flight afterwards supports the finding of the jury that he was legally sane.

The defendant complains of the denial of his motion for a continuance when Dr. Conroy could not attend because of his illness. He was a psychiatrist at the Veterans Hospital at Murfreesboro who examined Mackey in December 1970 and was under subpoena. In Mackey v. State, unreported, at Knoxville in June 1975, we considered and denied a similar contention as to this same expert. In that case Dr. Con-roy was not under subpoena. The doctor’s 1970 report did not indicate whether or not the defendant knew right from wrong and as before mentioned it found him competent to manage VA funds. In this case the defendant also sought to take Dr. Conroy’s deposition. We do not think the trial judge abused his discretion in denying the motion for a continuance and that any error in denying the motion for a deposition was harmless.

The defendant offered the testimony of Emanuel Cranford, his former schoolteacher and coach, to the effect that he received a head injury in a football game in 1967, that he became a troublemaker after-wards and at times did not know right from wrong. Mr. Cranford was vague as to when he had last seen the defendant, placing it from two to five years before the trial. The state objected to this testimony as too remote and the trial judge excluded it. We do not think the defendant was prejudiced by the exclusion of this testimony.

The defendant challenges the admissibility of his confession. He testified that Georgia officers threatened to kill him and induced an involuntary confession to them, and that Chattanooga Officer Phillip Mann threatened him with a pistol when he and another officer came to Georgia to return him to Tennessee; that Officer Mann put the pistol on the desk threatening to use it if the defendant went against him; that a Georgia officer hit him with a blackjack and he then signed the confession that Officer Mann had written; that Officer Mann did not warn him of his rights until he was back in Chattanooga; that on the return trip Officer Mann told the defendant he (Mann) should stop the car and kill him.

Officer Mann testified that he advised Mackey of his rights in Georgia; that Mackey signed the waiver form and voluntarily confessed to the crimes; that he (Mann) did not threaten, force or coerce the defendant in any way and he knew of no improper conduct by the Georgia officers. He specifically denied putting the pistol on the table or threatening Mackey with it.

No Georgia officers testified. The defendant contends that his testimony as to their misconduct is unrebutted and that the court erred in failing to suppress his confession. After hearing the defendant and Officer Mann testify, the trial judge determined their credibility and found the confession to have been taken freely and in compliance with Miranda admonitions. The evidence does not preponderate against his ruling and this assignment is overruled. White v. State, Tenn.Cr.App., 497 S.W.2d 751. Likewise without merit is the claim that the form of the waiver is insufficient under Miranda.

The defendant was indicted without having had a preliminary hearing. He complains that his attorney was appointed too late to demand a preliminary hearing. The law does not require that counsel be appointed to enable a defendant to demand a preliminary hearing. This assignment is overruled.

Edward Allen Hannah testified that Mrs. Cline ran from the house half naked, screaming she had been raped. Mr. Hannah described the defendant and his flight from the scene. He took the license number of the truck and described the defendant to police. On cross-examination the defendant inquired about a statement he made to a detective. Mr. Hannah said he did not sign a statement or see it. The court did not err in refusing further cross-examination on the statement or conversation with an unnamed detective.

The defendant complains that the court permitted hearsay testimony of Officer Mann to the effect that Mrs. Jane Clements, a neighbor of Mrs. Cline, identified the defendant from photographs.

The state did not introduce this evidence on direct examination. It was elicited by the defendant on cross-examination. In response to the defendant’s inquiry, Officer Mann testified that Mrs. Clements said the defendant had been to her home, asked if he could trim her trees and she had called the power board. By this cross-examination, the defendant sought to show that the state failed to call Mrs. Clements as a witness because her testimony would be adverse to it. The defendant asked the officer if Mrs. Clements came by the police department and looked at photographs. The trial judge did not err by permitting the state to show by the officer that she then identified Mackey from the photographs. To hold otherwise would leave the jury with the impression that she had failed to identify him and that was the reason for her absence as a witness.

No assignment challenges the weight and sufficiency of the evidence. We are satisfied that the defendant has had a fair trial and that he was sane both at the time of the crimes and at the trial.

Judgments affirmed.

DUNCAN, J., and JAMES C. BEASLEY, Special Judge, concur.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas Eugene GARVEY, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Feb. 27, 1975.

      Marvin P. Morton, Jr., Paris, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., William B. Hubbard, Asst. Atty. Gen., Nashville, W. R. Kinton, Jr., Dist. Atty. Gen., Trenton, for defendant in error.
   WALKER, Presiding Judge.

OPINION

In the general sessions court of Henry County, the defendant below, Thomas Eugene Garvey, was found guilty of disorderly conduct and disturbing the peace and sentenced to pay a fine of $20 and to serve 30 days in jail, with the jail sentence suspended. On his appeal to circuit court for a trial de novo, the trial judge, sitting without the intervention of a jury, found him guilty of disturbing the peace and fixed his punishment at a fine of $25 and 30 days in jail with all but one day suspended on his good behavior. From that judgment he appeals in error.

On May 18, 1973, the defendant stopped his car at a red light at Caldwell and Washington Streets in the city of Paris. Sergeant James Walker of the Paris Police Department had gotten out of a car and had started toward City Hall when the defendant, driving past the police station, called to the officer, “sooey.” Only Walker and the defendant were present. Walker obtained a warrant for the defendant for disorderly conduct and disturbing the peace and, with another officer, arrested the defendant the following day.

The defendant contends (1) this evidence is insufficient as a matter of law to sustain the conviction and (2) disturbing the peace can only be committed by violent conduct or by conduct calculated to immediately provoke violence or a violation of the law.

The statute involved is TCA 39-1213. Disturbance of peace — Definition—Penalty. In Baxter v. Ellington, 318 F.Supp. 1079 (1970), a three-judge federal district court held void for overbreadth that part of the statute which read: “It shall be unlawful for any person to disturb the peace of others by violent, profane, indecent, offensive or boisterous conduct or language; . . ” Not held unconstitutional was the second clause of the definition: “(B)y conduct calculated to provoke violence or a violation of the law.” Only this conduct can be punished under the statute.

The defendant argues that language (words) is not embraced in the definition of conduct, and that if conduct does include language, the statute is void for vagueness since no one would know that language is conduct. We hold that conduct encompasses language and this clause of the statute is not void for vagueness.

The language prohibited by this statute is “fighting” words, “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). In Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), considering a Georgia statute challenged as vague, the United States Supreme Court said:

“ . . . The Supreme Court of New Hampshire, however, Tong before the words for which Chaplinsky was convicted,’ sharply limited the statutory language ‘offensive, derisive or annoying word’ to ‘fighting’ words: ‘(N)o words were forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed. .
“ ‘The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . Derisive and annoying words can be taken as coming within the purview of the statute . only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. .
“ ‘The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee . . . ’ [State v. Chaplinsky) 91 N.H. 310, 313, 320-321, 18 A.2d 754, 758, 762 (1941).”

United States Supreme Court decisions since Chaplinsky have continued to recognize state power constitutionally to punish “fighting” words under carefully drawn statutes not also susceptible to application to protected expression. See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).

Under the evidence here, the defendant’s conduct (words) did not amount to “fighting” words as contemplated by the statute. There was no direct, face-to-face conduct or other exigent circumstances here. This word addressed to a police officer trained to exercise a higher degree of restraint than the average citizen would not be expected to cause a breach of the peace. See Lewis v. New Orleans, 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972).

We hold the evidence insufficient to sustain the verdict. Other assignments have been considered and are found to be without merit.

This case is reversed and dismissed.

OLIVER and GALBREATH, JJ., concur.


author: MITCHELL, Judge.

text:
    STATE of Tennessee, Petitioner, v. John Henry GANT, Respondent.
    Court of Criminal Appeals of Tennessee.
    Dec. 17, 1975.
    Certiorari Denied by Supreme Court March 8, 1976.

      R. A. Ashley, Jr., Atty. Gen., W. Henry Haile, II, Asst. Atty. Gen., Thomas H. Shri-ver, Dist. Atty. Gen., C. Douglas Thoresen, Asst. Dist. Atty. Gen., Nashville, for petitioner.
    Horace E. Johns, Jr., Eagleville, for respondent.
   MITCHELL, Judge.

OPINION

John Henry Gant was serving a sentence in the State Penitentiary at Nashville. Agents of the Tennessee Department of Corrections searched Gant’s cell without a search warrant and found in his possession an illegal controlled substance described as dope or narcotics. Gant was indicted and brought to trial.

On or about November 30, 1973, the trial judge of Division Two of the Criminal Court of Davidson County, Tennessee, on motion of Gant, suppressed the evidence on the ground that the search of Gant’s cell was without a search warrant, and in violation of the prisoner’s rights under the Fourth Amendment to the Constitution of the United States.

The District Attorney General filed a petition for writ of certiorari in which he alleged that the State was aggrieved by the trial judge’s decision in as much as the prosecution was for possession of a controlled substance for resale, and that the suppression of the evidence effectively terminated the prosecution and left the petitioner without an adequate remedy at law.

The petitioner averred that the trial court abused his judicial discretion in ruling that a search warrant was necessary to search respondent Gant’s cell.

The petitioner prayed that a writ of cer-tiorari issue directing the Trial Court to certify the entire proceedings in this case to the Court of Criminal Appeals, and that the judgment of the trial court in suppressing the evidence be reviewed, reversed and set aside.

When this case came on to be heard in this Court it was found that the record was incomplete. We ordered that the entire record in the Trial Court be brought before us and that counsel for the State and counsel for John Henry Gant be allowed ample time to file briefs.

The balance of the record and briefs were duly filed.

The purported bill of exceptions is not authenticated by the trial judge, however the technical record shows that Gant’s cell was searched without a warrant, that narcotics were found, that the evidence was suppressed on motion of Gant, and that the District Attorney filed a petition for Certio-rari.

In deciding the question whether Certiorari will lie in a case of this kind, we think we can also look to the district attorney’s petition and Gant’s failure to deny the allegations in it. All parties seem to recognize that the search was made, contraband found and seized, and the evidence suppressed on motion of Gant.

The suppression of the evidence by the Trial Court completely and effectively ended the prosecution and left the District Attorney General, who prosecutes on behalf of the people, with no other plain, speedy, or adequate remedy.

T.C.A. 27-801 provides that:

“The writ of certiorari may be granted whenever authorized by law, and also in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy. [Code 1858, § 3123, (deriv. Const.1834, art. 6, § 10); Shan., § 4853; Code 1932, § 8989.]”

In his excellent brief able counsel for the respondent Gant says the respondent does not challenge the State’s right to adopt reasonable measures at its state prisons to insure the safety of prisoners and prison personnel. That he does not question the right of the State to conduct searches of the person of prisoners, his belongings, and his cell in order to confiscate any contraband.

We think it is recognized, that for safety and security purposes, prison officials are authorized to search a prisoner’s cell without a warrant for weapons.

We think the learned veteran trial judge was without legal authority to suppress the evidence and to hold that the search of the prisoner’s cell without a search warrant violated the prisoner’s rights under the Fourth Amendment to the United States Constitution.

We can think of no greater threat to the safety and security of prisons and prison officials than the possession of heroin or other narcotics, kept by a prisoner for the purpose of selling and distributing to other prisoners. It is hardly necessary to suggest that the use of such drugs by prisoners who are serving long sentences for rape, robbery and murder could present a most difficult and dangerous problem concerning the discipline and control of prisoners and prison personnel.

In Lanza v. New York, 870 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962), the Supreme Court of the United States said:

“But to say that a public jail is the equivalent of a man’s ‘house’ or that it is a place where he can claim constitutional immunity from search or seizure of his person, his papers, or his effects, is at best a novel argument. To be sure, the Court has been far from niggardly in construing the physical scope of Fourth Amendment protection.
A business office is a protected area, and so may be a store. A hotel room, in the eyes of the Fourth Amendment, may become a person’s ‘house,’ and so, of course, may an apartment. An automobile may not be unreasonably searched. Neither may an occupied taxicab. Yet, without attempting either to define or to predict the ultimate scope of Fourth Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day. Though it may be assumed that even in a jail, or perhaps especially there, the relationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection, there is no claimed violation of any such special relationship here.
But even if we accept the premise that the room at the jail where the petitioner and his brother conversed was an area immunized by the Constitution from unreasonable search and seizure, and even though we put to one side questions as to the petitioner’s standing to complain, the petitioner’s argument would still carry far beyond any decision which this Court has yet rendered. The case before us bears no resemblance to such cases as Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948, where a State attempted to use as evidence in a criminal trial a confession which had been elicited by trickery from the defendant while he was in jail. See also Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265.” Counsel for the respondent has cited our

unreported opinion in Bartolini v. State, Davidson County Criminal Court No. A-8914, filed September 19, 1973. We think the Bartolini case can be distinguished. There was a bill of exceptions in Bartolini which showed the trial judge found the affidavit to the search warrant for stolen property was defective, and we were unable to say that the trial judge acted illegally in suppressing the evidence.

We think State v. Dougherty, Tenn., 483 S.W.2d 90, supports our holding here that the trial court acted illegally in suppressing the evidence and left the State with no other plain, speedy or adequate remedy.

In Dougherty, the trial judge, on motion of the defendant, ordered the District Attorney General to disclose to the defendant’ s attorneys written, and recorded statements and the substance of oral statements made by the accused, including reports of experts in connection with the case. This order included results of scientific tests, mental and medical examination, finger prints, blood tests, paint scrapings, hair charts, diagrams, and articles of clothing found at the scene of the crime.

The Supreme Court of Tennessee said:

“Therefore, the writ of certiorari issuing herein is referable to T.C.A. Section 27-801 which authorizes that writ in cases where an inferior tribunal ‘has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy.’ Hicks v. Hicks, 168 Tenn. 539, 79 S.W.2d 802 (1935); Moore v. Chadwick, 170 Tenn. 223, 94 S.W.2d 49 (1936).
* * * ⅝ * *
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. West v. State [3] Tenn.Cr.App. [671], 466 S.W.2d 524 (1971).”

Accordingly the Writ of Certiorari is granted and the judgment of the trial court in suppressing the evidence is reversed. The case is remanded for further proceedings consistent with this opinion.

WALKER, P. J., and RUSSELL, J., concur.


author: GALBREATH, Judge.

text:
    Liane C. ILGNER, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Dec. 17, 1975.
    Certiorari Denied by Supreme Court April 26, 1976.

      T. Arthur Jenkins, Manchester, John Mc-Cord, Tullahoma, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Charles S. Ramsey, Jr., Dist. Atty. Gen., John W. Rollins, Asst. Dist. Atty. Gten., Manchester, for defendant-in-error.
   OPINION

GALBREATH, Judge.

It is the thrust of this appeal that the denial of plaintiff in error’s application for suspension of the one to five year sentence she received on her plea of guilty to the charge of possessing marijuana for resale amounts to cruel and unusual punishment because of the deplorable conditions she alleges exist in penal institutions which would prevent her access to meaningful rehabilitation programs available outside of prison. In addition, it is contended that because the trial judge had, prior to his election, served some twenty-one years as an assistant district attorney general, he had become so prosecution oriented that the plaintiff in error was denied due process.

The granting or withholding of judicial clemency by suspending the execution of a sentence lawfully imposed on one found guilty of crime is a matter that addresses itself solely to the sound discretion of the trial judge. Its exercise will not be disturbed on review unless the record discloses that it “may be branded as arbitrary or capricious or as palpably abusive of its discretion”. Stiller v. State, 516 S.W.2d 617 (Tenn.1975).

In this case the trial judge set out in his order, after an exhaustive hearing on the application which he took under advisement, the reasons impelling him to deny probation. He noted that the defendant had on two other occasions been allowed to remain at liberty on suspended sentences for drug law violations, and at the time had pending for disposition yet another charge involving the possession of marijuana and Demerol.

The trial judge indicated his agreement with the beneficial goals sought to be accomplished by the appropriate application of probation in lieu of imprisonment and quoted with approval from the Supreme Court in Stiller v. State, supra:

“The entire theory of probation is that it is in the public interest that those who violate society’s rules of conduct should, in proper cases, be given an opportunity to rehabilitate themselves and to be restored to useful and productive citizenship. More and more our society is coming to realize that ‘warehousing’ criminals on an indiscriminate basis is financially, socially and morally unacceptable.”

He also pointed out from the same opinion:

“However, this concept contemplates that probation be restricted to those who are worthy of this largesse of the law.”

The trial judge then concluded:

“The defendant herein has had two such opportunities to rehabilitate herself and has not seen fit to do so. The Court is of the opinion that her efforts along this line at the present time come somewhat late for consideration in this case.”

Not only do we find that the action of the trial judge was not arbitrary and capricious, we are impressed with the conscientious and serious consideration he gave to the defendant’s request for a third chance to abstain from the criminal activity that had resulted in her past difficulties. We feel, as did he, that the defendant had been afforded ample chance to refrain from a course of unlawful conduct.

Both the author of this opinion, who served for a number of years as Metropolitan Public Defender in the State’s second largest city, and the trial judge, who did have a long and distinguished career as a prosecuting official for the State, view the problem confronting the defendant as one of her own making for which she must now accept the consequences. That is disposi-tive of the suggestion that the trial judge is not imbued with that due regard of the rights, privileges and immunities of those whose trials he presides over that all criminal judges must possess at the time of their coming to the bench or acquire by the-time their work products come to the attention of this and the Supreme Court. In reviewing the actions of the trial judge in this case, it appears to us that he has a full awareness of and respect for the protections and safeguards surrounding those accused of crime.

We must concede that our prisons and jails are far from the rehabilitative institutions they should be, and more akin to warehouses for criminals as they are characterized in Stiller v. State, supra. We are not prepared, however, to say that they are incapable of being used for constitutional confinement. Many a good man comes out of a jail as many a rogue comes out of a palace. We all carry within ourselves to some degree the keys to our future freedom, and there are some who are more at liberty in a dungeon than others confined by the chains they forge in their daily unrestricted pursuits.

In affirming, we note and reject the unsupported theory advanced on behalf of the plaintiff in error that she should be allowed credit for time she spent in voluntary drug therapy prior to her petition' being overruled.

DWYER and RUSSELL, JJ., concur.


text:
    Keelon BOAZ and O. C. Hampton, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Dec. 18, 1975.
    Certiorari Denied by Supreme Court on April 12, 1976.

      Edward Witt Chandler, McKenzie, for plaintiffs in error.
    R. A. Ashley, Jr., Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, A. H. Schoonover, Asst. Dist. Atty. Gen., Trenton, for defendant in error.
   WALKER, Presiding Judge.

OPINION

The Gibson County grand jury indicted Keelon Boaz for inciting, counseling and procuring David Wilson and O. C. Hampton to commit grand larceny; and it indicted Boaz, David Wilson and O. C. Hampton for grand larceny of a stock trailer, receiving stolen property, concealing stolen property and temporarily using personal property without the owner’s consent. The second case was severed as to Wilson and he testified for the state. Boaz was convicted of being an accessory before the fact and sentenced to three years in the penitentiary. The trial judge instructed the jury that the evidence would not sustain a finding of guilt of larceny against Boaz, and he submitted the second case only as to Hampton. The jury found Hampton guilty of grand larceny and fixed his punishment at three years in the penitentiary. Boaz and Hampton appeal in error, first contending that the evidence does not support the verdict as to each of them. Neither offered any evidence to the jury.

The evidence showed that Herron McCaleb owned a blue 14-foot stock trailer which he moved to a shed at his father’s farm and that Boaz had been negotiating with him for its purchase. Boaz knew the location of the trailer there. It was found missing August 16, 1974, and was later found in Paris where the paint had been sandblasted from it.

The night of the theft Wilson and Hampton were pulling the trailer with a pickup truck and got stuck in the mud. One Rodney Depriest identified Wilson and Hampton as the men who asked his help in pulling the trailer out of the mud. After his arrest Hampton confessed to his part in stealing the trailer. The confession, with all reference to Boaz eliminated, was admitted into evidence.

In the early part of the investigation, Officer Lonnie Akers went to see Boaz at his home in Carroll County and asked if he knew McCaleb and also if he knew Wilson. Boaz replied that he did know them and that he had sold Wilson a horse but he had not seen him with a trailer like that described. When the officer left him, Boaz drove in the direction of Wilson’s home in Weak-ley County and the officer followed him within a half mile of that home.

Wilson testified that in August 1974, he and Hampton came to Gibson County and took the trailer. About a week before, he said that Boaz had taken him and another person to the place the trailer was located; Boaz said it would be easy to get; that the job was a snap since no one was at home where the trailer was stored. Nothing came of the first effort but Boaz took him and Hampton there later. That night he and Hampton returned, took the trailer, then became mired in mud and had to have help to get out. By his testimony they took the trailer to Boaz’s house, then hid it in a cemetery. He went back and took it to a sandblaster. Their plan was to paint it, sell it and split the proceeds. He said Boaz told him that Officer Akers had been to see him (Boaz).

The evidence abundantly sustains the verdict as to Hampton. In his statement, found voluntary by the trial judge and not the product of an unlawful arrest, he admitted stealing the trailer. Wilson testified that he and Hampton took it and his testimony is corroborated by Depriest who identified Hampton as one of those he helped pull the trailer from the mud. Hampton’s assignments on the weight of the evidence are overruled.

Challenging the sufficiency of the evidence, Boaz particularly contends that his conviction is based solely on the uncorroborated testimony of an accomplice. The state does not respond to this claim.

The question of whether or not a thief is an accomplice of an accessory before the fact of the larceny has not been decided in this state. In Wheelock v. State, 154 Tenn. 66, 289 S.W. 515, the Supreme Court found unsatisfactory the testimony of an accomplice before the fact and reversed the case without discussing whether the accomplice testimony required corroboration.

The general rule is that an accessory before the fact (Boaz) is an accomplice of the actual perpetrator or principal in the crime. Underhill’s Criminal Evidence, 5th Ed., Sec. 175, p. 339. It follows that the perpetrator or principal is also the accomplice of the accessory before the fact. We hold that Wilson was an accomplice of Boaz and his testimony had to be corroborated.

Although only slight circumstances are needed to corroborate an accomplice’s testimony and his entire conduct may be looked to, we are unable to find the necessary corroboration here. McCaleb testified that Boaz knew the location of the trailer and Officer Akers testified that Boaz left in the direction of Wilson’s home after Akers’ inquiry about the trailer, but these circumstances are insufficient to corroborate Wilson’s testimony. The assignment must be sustained as to Boaz and the case is reversed as to him.

Although we find the case must be reversed as to Boaz, we examine his other assignments. He contends his statement to Akers violated his Miranda rights. Those warnings were not given him in that brief inquiry. He was not in custody or deprived of his freedom in any way. Under the totality of the circumstances here, no warnings were required.

He also claims the statement was inadmissible because the provisions of TCA 40-2441 were not followed in that the district attorney general did not give him the names of those who heard his statement. He filed a pretrial motion for such a statement but did not have it ruled on by the court so far as the record shows, although he did receive a letter from the assistant district attorney general indicating a compliance with his request. Any noncompliance with the statute here would be harmless.

Hampton contends his confession was the product of an illegal arrest and also a product of statements illegally obtained from Boaz. This is overruled. In any event, Akers had probable cause to arrest Hampton. Akers had already talked to De-priest who identified Hampton and Wilson as those with the trailer; he had also learned of Hampton from Wilson. We have already held Boaz’s statement properly obtained.

The defendants say it was error to admit the testimony of Depriest and Gali-more since their names were not on the indictment as required by TCA 40-2407. The statute is directory. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173.

The defense was given an opportunity to examine these witnesses but refused. From the record it appears that defense counsel had examined these witnesses at least twice before trial and was not surprised. This assignment is without merit.

Likewise meritless is the claim that the court erred in not instructing on petit larceny and in limiting argument to grand larceny.

The proof of the value of the trailer was approximately $800 on the present market. The owner said nothing had changed except the paint when he recovered it. It is clear that the value given represented the value at the time the trailer was stolen.

In an indictment for grand larceny, the court is not required to instruct on petit larceny where there is no evidence to support the lesser included offense. Reynolds v. State, 210 Tenn. 310, 358 S.W.2d 320.

In Whitwell v. State, Tenn., 520 S.W.2d 338, our Supreme Court said: (W)e do not approve the practice of charging petit larceny, where there is no evidence to support it, . .

This case is affirmed as to defendant Hampton; and reversed and remanded for a new trial as to defendant Boaz.

RUSSELL and DUNCAN, JJ., concur.


text:
    John Henry BROWN, Petitioner, v. STATE of Tennessee, Respondent.
    Court of Criminal Appeals of Tennessee.
    Dec. 19, 1975.

      Thomas 0. Helton & John B. Phillips, Jr., Chattanooga, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., Robert B. Littleton, Asst. Atty. Gen., Nashville, David H. Rotroff, Asst. Dist. Atty. Gen., Chattanooga, for respondent.
   WALKER, Presiding Judge.

OPINION

By his petition for postconviction relief, John Henry Brown attacks the constitutionality of his conviction for assault with intent to commit second degree murder and sentence to one to five years in the penitentiary. His counsel did not want an eviden-tiary hearing but submitted his claims on the pleadings, the stipulation of the facts and the record, including the transcript of two witnesses at the trial. This testimony was considered by the trial judge in making his memorandum and order dismissing the petition. In that order the trial judge carefully reviewed all of the petitioner’s contentions and found them to be without merit. We agree and affirm the dismissal.

The stipulation shows that Brown, represented by retained counsel, was convicted February 8, 1974. He was allowed time to file his motion for a new trial and was released on bond. He then fled the jurisdiction to avoid the processes of law. Because of his flight, no new trial motion was filed or appeal taken. He was apprehended July 23, 1974, and began serving his sentence.

The trial judge found that the matters of which petitioner complains were raised at trial, but that by jumping bond, failing to appear in court and failing to prosecute the new trial motion or appeal, the petitioner had waived them.

By fleeing the jurisdiction, the petitioner waived his right not only to a new trial motion and appeal but also any right to a delayed appeal or relief under postcon-viction procedure. In Bradford v. State, 184 Tenn. 694, 202 S.W.2d 647, our Supreme Court held that a defendant who is a fugitive from justice while his appeal is pending has waived his right of appeal. In unpublished opinions we have held this rule applies to postconviction procedures. Clarence Allen Trent v. State (November 1974 at Knoxville); Tommy Moore v. State (February 1973 at Knoxville); Ralph R. Cozzolino v. State (December 1972 at Knoxville). Although these opinions are unpublished, we think that the rule properly applies to postconviction cases and we here announce that rule as applying to postconviction procedures.

A petitioner must give a valid reason for his failure to'raise issues at the first opportunity. Arthur v. State, Tenn., 483 S.W.2d 95. He must give the trial court the opportunity to correct errors by filing a motion for new trial. Errors not raised there cannot be raised on appeal. Nelson v. State, Tenn., 470 S.W.2d 32.

Fleeing the jurisdiction or escaping is not a valid excuse for failure to follow these rules. It follows that a petitioner who flees the jurisdiction or escapes has effectively foreclosed any relief for himself by his own actions.

In Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975), the United States Supreme Court upheld against constitutional attack a state court’s dismissal of an appeal of an escaped defendant who was recaptured. It said that dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law and that court had long followed the practice of declining to review the convictions of escaped criminal defendants. We hold there is no constitutional objection to our rule of dismissal.

Although we hold that the petitioner waived review of his conviction by his flight from the jurisdiction, we also approve the trial judge’s finding that the questions raised in the petition were meritless.

The petitioner claims that the state’s refusal to furnish him an exculpatory statement in the state’s possession violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. The trial court held there was no Brady violation and if there were any error it was harmless.

Before trial the petitioner’s attorney moved for exculpatory material. The statement of Carolyn Heifner claimed exculpatory was not furnished.

Carolyn Heifner was subpoenaed by the state but called as a defense witness •and the petitioner elicited from her favorable testimony in the area he claims was exculpatory in the statement not furnished to him. The petitioner became aware of this favorable material and used it in his defense. In any event, he was not prejudiced by failure to learn of it earlier.

The petitioner also claims the admission into evidence of irrelevant and prejudicial parts of Carolyn Heifner’s statement denied him a fair trial. This occurred on her cross-examination. In his order dismissing the petition, the trial judge held this legitimate cross-examination because it showed inconsistencies and whether or not threats had been made by the petitioner to force her to testify for him. The record sustains his finding. Courts have broad discretion in permitting cross-examination and the judge at the conviction did not abuse his discretion. A trial court’s exercise of judicial discretion is not reviewed on postconviction unless it involves constitutional rights. Janow v. State, Tenn.Cr.App., 470 S.W.2d 19. We find no violation of petitioner’s constitutional right to a fair trial by this material.

All assignments are overruled and the judgment is affirmed.

GALBREATH and DUNCAN, JJ., concur.


text:
    John Grady MORRIS, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Jan. 19, 1976.
    Certiorari Denied by Supreme Court April 26, 1976.

      Jack R. Brown, Chattanooga, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Etrula R. Trotter, Asst. Atty. Gen., Nashville, Stanley Lanzo, Asst. Dist. Atty. Gen., Chattanooga, for defendant-in-error.
   OPINION

GALBREATH, Judge.

Plaintiff in error was convicted in the Criminal Court of Hamilton County of receiving stolen property and sentenced to 4 to 6 years in the penitentiary.

The usual attack is made on the sufficiency of the convicting evidence. The evidence showed that two paint sprayers had been stolen from A.D.T. Coating Corp. in June, 1973. On July 3, 1973, defendant was one of two persons who sold the identified sprayers to a Mr. Morgan, with the warning that the items were “hot”. The sprayers in question were identified by an agent of the corporation because of splatters of a special paint and because of a bent leg and broken rod. Defendant contends that only identification by serial number would have been adequate to sufficiently identify these objects as those stolen from the corporation. This is an untenable position since identification of purloined property can be made from any characteristic that makes an object unique. Most stolen objects have no serial numbers. The assignment is overruled. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

We sustain an assignment of error complaining of the argument of the prosecuting attorney to the jury as commenting extensively on the failure of the defendant to testify. In his opening argument, after the defense had announced that no proof would be offered, the attorney for the State included the following in his summation:

“Now, let’s look at the facts from up there, and I want you to remember now, where are the contradictions? Where is there any proof to say that this was bought at Gilman’s Paint? Where is there any proof that this was bought from a man out of town? Where is there any proof — and I’m not commenting on the fact that the defendant didn’t take the stand, because that is his God-given right, but that doesn’t mean that he can’t bring in 200 witnesses and say, ‘Yeah, I got this, I bought this thing and gave it to John Grady Morris and John Headrick. I gave it to them because they wanted to sell it, and I sold it to them because they wanted to sell it, and I sold it to them for $400.00’, or there’s nothing stopping anybody from having John Headrick come up here and take the stand, and say, ‘Yeah, we bought it, we bought it from some guy, but I don’t know what it is.’ You were not even given that right. But I put every single thing I get my hands on in this case . . .”

Later, in final argument the assistant district attorney told the jury:

“He has a constitutional right, and you’re not to take any inferences, or insinuations, or any idea, or anything in your mind, because he doesn’t take the stand, you know, you don’t want to guess why he didn’t, and that’s okay, because the law says that, but there is nothing in the law that says that he can sit there and tell you how you shouldn’t ask questions why he didn’t present some proof, if his story is what he tries to tell you through his arguments, because that’s all you hear is arguments . . .”

The portions of the argument emphasized directed in most graphic detail the jury’s attention to the refusal of the defendant to take the witness chair and explain away the inferences raised by the State’s proof.

There are ways other than by direct assertion to make a point with an audience. Sometimes it is more effective to get across a message in a negative manner. By telling the Romans over and over again that Brutus was an honorable man, Mark Anthony, in his oration at Caesar’s funeral, skillfully and thoroughly convinced them that Brutus was a dishonorable traitor and murderer and turned them into a raging mob. An effective television commercial instructed the listeners not to think about the very subject the advertisement was designed to provoke thought about. So in this case by pointedly referring to the constitutional right, or even more impactive “the God-given right”, of Morris not to be a witness the assistant district attorney general emphasized the failure of the defendant to deny his guilt in person. So, too, in the very telling the jury that he was not commenting on the fact the defendant didn’t take the stand, the prosecuting attorney most emphatically was making such comment.

It has been repeatedly held that it is not error for the prosecution to point out that no proof has been offered to rebut the evidence offered by the State. Hays v. State, 159 Tenn. 388, 19 S.W.2d 313. But in doing so no argument suggesting guilt may be based on the failure of the accused to take the stand or to assert any other constitutional right. Even in those instances where the argument does not deal directly with the failure of the accused to be a witness, unfair or suggestive implications should be avoided. As Special Judge John Templeton, speaking for this Court put it:

“We do not wish to be understood to say that an argument literally restricted to a comment on failure to produce other witnesses always will avoid comment on failure of the accused himself to testify. Such an argument may be and unfortunately sometimes is a vehicle used by the State to get over to the jury by indirection an inference that the accused is guilty because he has not testified. The argument is particularly suspect when it contains a reference to the accused’s common law presumption of innocence as his only witness. The comment never should be allowed as a part of the argument that the State’s proof is unrefuted or otherwise because it borders so perilously on the proscribed area. Even in a case such as this where the evidence of guilt is clearly made out we would not hesitate to reverse and remand if we thought an argument, however subtle and indirect, told the jury it could infer the accused was guilty because he did not take the witness stand.” McCracken v. State, 489 S.W.2d 48, 51 (Tenn.Cr.App.1972).

It is regrettable that in so many cases such as this “where the evidence of guilt is clearly made out”, overzealousness on the part of prosecutorial officials sometimes lead them into “over trying” their lawsuit so as to force reversal. But as noted one hundred years ago this month by our Supreme Court:

“Although we might be satisfied of the prisoner’s guilt, yet it is our duty to see that he has a fair and impartial trial, and this he must have though costs may accumulate and punishment be long delayed.” Stokes v. State, 64 Tenn. 619 (1875).

Error is also noted in admitting over objection proof from a witness that he had “made a case” against the defendant for the Grand Jury in connection with another paint sprayer purchased from him. Such proof of other crime is highly prejudicial and inadmissible. Mays v. State, 145 Tenn. 118, 238 S.W. 1096. This error may have been rendered harmless by later instructions to the jury to disregard it and will not be repeated in the event this case is tried again.

We have seriously considered holding the improper argument of the prosecuting attorney to have been harmless as to the issue of guilt. In that posture we could follow the action of the Supreme Court in Smith v. State, 527 S.W.2d 737 (Tenn.1975) where they recently agreed with some members of this Court that the doctrine set out in Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900 (1944) authorizes appellate courts to grant remittiturs in criminal cases without reducing the degree of the offense. However, such a holding that the evidence of defendant's guilt is overwhelming and uncontradicted would give the effect to the argument of the prosecutor which he attempted to—and did—provoke from the trial jury. Further, the remarks in summation which we find improper are directed to the issue of guilt or innocence and not to the amount of punishment which the prosecutor was recommending the jury mete out as in Smith v. State, supra. Therefore, we cannot hold the error to be harmless beyond a reasonable doubt (see Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758), and we reverse and remand the case for a new trial.

RUSSELL and O’BRIEN, JJ., concur.


author: ROBERTS, Judge. DOUGLAS, Judge

text:
    Norman Carl MILLER, Appellant, v. The STATE of Texas, Appellee.
    No. 50984.
    Court of Criminal Appeals of Texas.
    June 9, 1976.
    Rehearing Denied July 7, 1976.
    Jack W. Beech, Fort Worth, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for delivery of a controlled substance, to wit, lysergic acid diethylamide. A jury found appellant guilty on December 12, 1974 and assessed his punishment at nine years’ imprisonment. The offense occurred on May 1, 1974.

Appellant filed a motion for speedy trial which was granted on September 16, 1974. On the next trial setting, November 5,1974, though, he asked for and received a continuance until December 11, 1974. On that date, appellant appeared with attorney Max Blankenship and requested another continuance on the grounds that his lead counsel, Jack Beech, had entered the hospital the day before and was unable to represent appellant. It developed that appellant had retained Beech and that Blankenship was an associate of Beech. The trial was continued until later that day, but then proceeded without Beech and over objection until the jury rendered its verdict the next day. Attorney Beech next made an appearance on December 30, 1974 at the hearing on appellant’s motion for new trial.

Appellant seeks reversal on the grounds that the trial court abused its discretion in denying his motion for continuance based on the absence of attorney Beech. It is well settled that such action is not an abuse of discretion where the defendant was ably represented throughout the trial by substitute counsel. Taylor v. State, 507 S.W.2d 563 (Tex.Cr.App.1974); Payton v. State, 503 S.W.2d 787 (Tex.Cr.App.1974); Gray v. State, 477 S.W.2d 635 (Tex.Cr.App.1972); McKnight v. State, 432 S.W.2d 69 (Tex.Cr.App.1968). There has been no suggestion that attorney Blankenship did not ably represent appellant. No abuse of discretion is shown.

Appellant also attacks the sufficiency of the evidence to show that it was he who gave the LSD to the intermediary for purchase by the narcotics agent, B. R. Armand. He also contends that there was no showing that he knew he was delivering the LSD to Armand, as alleged in the indictment.

The evidence showed that narcotics officer Armand met one Robert Kaufman at a bowling alley in Fort Worth at 11:00 p. m. on May 1, 1974. The two proceeded to appellant’s residence in neighboring Parker County. Armand waited in the car while Kaufman went to the door of the house. Armand testified that appellant answered Kaufman’s knock and handed him a small package. Kaufman returned to the car and gave the package to Armand. The package was later proven to contain the LSD.

The court instructed the jury on the law of principals. The evidence was sufficient to sustain the conviction of appellant for delivering LSD to Armand. Saddler v. State, 167 Tex.Cr.R. 309, 320 S.W.2d 146 (1959).

Appellant lodges several attacks on the impanelling and authority of the grand jury and, hence, on the validity of his indictment. First, he complains that there are no court orders for the appointment of the grand jury commissioners or the grand jury foreman, as required by Arts. 19.01 and 19.34, V.A.C.C.P. Art. 19.34 states no requirement of an order appointing the grand jury foreman. And the requirement of a court order in Art. 19.01 has been held to be directory, not mandatory. Garcia v. State, 522 S.W.2d 203 (Tex.Cr.App.1975). The absence of a written order did not render the indictment fatally defective.

Appellant presented evidence at a pre-trial hearing on his motion to set aside the indictment which showed that the grand jury met only on July 22, August 5, September 17, and October 4, in its July, 1974 term. He contends that there was no court order permitting them to adjourn in the interim periods for more than three days, as required by Art. 20.08, V.A.C.C.P. Art. 20.08 requires only the court’s consent to adjourn for more than three days, not an order. The trial judge testified at the hearing that he gave this consent each time the grand jury reassembled and adjourned. No error is shown.

Appellant also makes a complicated attack on the constitutionality of the Texas Controlled Substances Act. The gist of his contention is that the state statute is in conflict with the federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A., Sec. 801 et seq., because it provides harsher penalties than does the federal act. The identical contention was rejected in Wilson v. State, 525 S.W.2d 30 (Tex.Cr.App.1975). This ground of error has no merit.

The judgment is affirmed.

DOUGLAS, Judge

(dissenting).

The offense occurred on May 1,1974. On June 27, 1974, appellant contracted with a Fort Worth attorney, Jack Beech, to represent him. On September 16,1974, a motion for a speedy trial was filed and the trial was set for November 5, 1974. Appellant requested and received a continuance on November 5 because his attorney, Jack Beech, had been subpoenaed to appear before a grand jury in DeWitt County. Appellant’s trial was reset for December 11, 1974..

On the morning of December 11, Max Blankenship, an attorney and employee of Jack Beech, appeared before the trial court and requested a continuance on behalf of appellant. This motion was made because attorney Beech had been admitted to the hospital on December 10, 1974, due to the recent and severe aggravation of a back injury.

In support of his sworn motion for continuance appellant testified that he had hired Beech not Blankenship and that he felt that Beech was more familiar with his case. Appellant stated that he had talked with Blankenship only two or three times about his case and that those conferences were during court appearances. Appellant stated that the most Blankenship had done on his ease was attend the pretrial hearing with Beech and file some motions relating to his case. Appellant testified that he had discussed his case with Beech once or twice a week since June, 1974.

In support of the motion for continuance Max Blankenship testified that he had been employed by Beech on a full time basis since October, 1974, and that he had not discussed this case with appellant before the initial motion for continuance in November. Blankenship stated that although he had prepared and filed some motions in appellant’s case none required knowledge of the particular facts of appellant’s case. He stated that in his opinion it would be in appellant’s best interest to be represented by Beech who had more experience, qualifications as a trial lawyer, and familiarity with the case. Blankenship also testified that he had appeared in court prepared only to argue the motion for continuance and that he was due in court in an adjacent county to resume jury selection in another case. He stated that the judge in that case had given him permission to request the continuance in appellant’s case but expected him to return to trial in his court.

The trial court gave appellant until 1:00 p. m. to acquaint Blankenship with the facts of his case. Appellant excepted to this ruling.

During the hearing on appellant’s motion for new trial, held on December 30, 1974, Beech testified that he had been employed by appellant, that he had entered the hospital the day before the trial and was in traction and under medication on the day of the trial. He stated that he had tried more felony trials than had Blankenship, that a large percentage of these trials had been drug cases, that he was generally a more experienced trial lawyer than Blankenship and, therefore, less likely to make mistakes at trial. He testified that he had grown up in Parker County and would be more familiar with the people and the jury panel than would Blankenship who had never been a resident there. He also stated that he had interviewed the key police witness and would have more insight into his testimony than would Blankenship who had never talked with him before the trial. Beech testified that when preparing a motion Blankenship consulted with him and not the client on the substance of the motion. He also stated that Blankenship was an employee and not a partner of his firm and that Blankenship had been with him only a short time. An affidavit by Dr. George Naugles recited that he was on the staff of White Settlement Hospital and that he had treated Jack Beech for some ten years. An x-ray of the back showed that Beech had a narrow space between two vertebrae which indicated a ruptured disc. He ordered Beech to the hospital on the 10th of December, 1974. Beech was being given the drug norflex and he could not function properly with or without medication.

Although the disposition of a motion for continuance lies within the sound discretion of the trial court, Chance v. State, 528 S.W.2d 605 (Tex.Cr.App.1975), if the object of the Sixth Amendment to the United States Constitution is to be met, an appellant should be allowed representation of his own choosing. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954). This is especially so when a request for such representation is not unreasonable and would not unduly hinder the administration of the trial court.

In this instance, appellant presented a verified motion for continuance. Appellant had previously requested only one other continuance. The testimony showed that neither request for continuance had been due to any lack of diligence or preparation on the part of appellant or his attorney, but rather due to circumstances beyond either’s control. The record shows that appellant had hired Beech several months before the trial, that Beech had discussed the case with appellant on a continuing basis and that he was more familiar with the case than was Blankenship.

The evidence given at the motion for continuance also supports appellant’s contention that his retained counsel was hospitalized and that Blankenship was an employee not a partner in Beech’s office. The record also shows that Blankenship, at the beginning of appellant’s trial, was in the midst of another trial and was not free to concentrate on appellant’s case. There is no indication in the record that the motion for continuance was an effort on appellant’s part to contravene his earlier motion for a speedy trial or that the attorney’s illness was feigned in any way.

The nature of the offense and record of the trial would indicate that the morning given to Blankenship to familiarize himself with the facts of the case would not be sufficient time to prepare an adequate case for the appellant.

We should hold that in this instance the trial court abused its discretion in forcing appellant to trial without benefit of counsel of his own choosing.

The judgment should be reversed and the cause remanded.

ONION, P. J., concurs in this dissent.

      . Despite repeated promises to do so, the State has not provided this Court with a brief in this matter. The State has thus failed to comply with Art. 40.09, Sec. 10, V.A.C.C.P. Coleman v. State, 530 S.W.2d 823, 825 (Tex.Cr.App.1976) (dissenting opinion).


author: DOUGLAS, Judge. ROBERTS, Judge

text:
    Cloyce Leon (Ducky) McCALEB, Appellant, v. The STATE of Texas, Appellee.
    No. 51051.
    Court of Criminal Appeals of Texas.
    June 9, 1976.
    Rehearing Denied June 30, 1976.

      Clifford W. Brown, Lubbock, for appellant.
    E. W. Boedeker, Dist. Atty., Levelland, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of theft of property over the value of $50 under the former penal code. Punishment was assessed by the court at five years after the jury returned a verdict of guilty.

In his first ground of error, appellant contends that the trial court erred “in failing to require the State to elect as to which transaction, shown by the evidence, it would rely upon in seeking a conviction under the allegations contained in the indictment.”

The record reflects that appellant made a motion to require the State to make an election as to which transaction it would seek a conviction under at the close of the State’s evidence. In his objections to the court’s charge, appellant again complains of the court’s failure to require the State to elect.

The indictment alleged in pertinent part that appellant

“ . . . on or about the 13th day of November, A.D., 1972 and anterior to the presentment of the Indictment, in the County and State aforesaid did then and there unlawfully and fraudulently take lawful money of the United States of the value of over fifty Dollars the same then and there being the corporeal personal property of and belonging to Wayne C. Hill. ...”

Appellant relies on Bates v. State, 165 Tex.Cr.R. 140, 305 S.W.2d 366 (1957); Adams v. State, 126 Tex.Cr.R. 492, 72 S.W.2d 912 (1934), and Roddy v. State, 118 Tex.Cr.R. 315, 40 S.W.2d 129 (1931), in support of his contention.

The record reflects that appellant obtained more than $24,000 over a period of more than five months from the prosecuting witness, Dr. Wayne C. Hill, by representing to him that he had found a cache of silver and would give the prosecuting witness a portion of it for furnishing funds to retrieve the silver from its hiding place in a canyon in Nevada. On November 13, 1972, appellant purported to sell to Dr. Hill and his wife each a one percent interest in the enterprise for a price of $1,000. At this time Dr. Hill paid $200 down for each one percent interest, making a total down payment of $400. On November 26, 1972, Dr. Hill purchased another one percent interest for his son in the enterprise, again for a total purchase price of $1,000, paying $200 down. Two days later, on November 28, 1972, appellant purported to sell to Dr. Hill a 37% interest in the enterprise in exchange for an agreement that the prosecuting witness would provide up to $20,000 for the purchase of equipment appellant represented to be necessary to the recovery of the silver. At this time Dr. Hill gave appellant a check for $5,000 to cover the first portion of such expenses. Dr. Hill next saw appellant on December 28,1972. On that date he gave the appellant another $5,000 check to cover further expenses pursuant to the contract made between them.

On February 6, 1973, Dr. Hill gave an additional $5200 to appellant. He advanced the additional money to appellant on the condition that appellant give him a promissory note to cover all monies previously advanced under their agreement. Only after appellant had given his note for $15,800 did Dr. Hill advance the money. The record reflects that sometime late in January Dr. Hill refused to give more money for equipment and supplies “because I had spent enough money and had not seen anything and no evidence of buying equipment, no bills of sale or anything like that, so I balked on him. I didn’t give him any money at that time.” A portion of Dr. Hill’s testimony relating to the February 6th transaction is as follows:

“Q. All right, did you, as a result of him talking to you at that time, did you give him anymore money?
“A. Under certain conditions.
“Q. All right, what were those conditions?
“A. That he give me a note for the amount that I would spend this time and the times previous; up to that time, suggested by Hunter.
U ⅜ * *
“Q. All right, and what was your conversation there with Mr. McCaleb— to Mr. Hunter at that time concerning some more money?
“A. That I would advance some more money for this half truck, providing he gave me a note for this amount and the previous amount that I had given him already at three months — ninety days at 8V2%.
U * * *
“Q. All right, and how much did he give you a note for at that time?
“A. Fifteen thousand, eight hundred dollars.
“Q. All right, did you give him a check at that time?
“A. I gave him a check at that time.”

The sums of money previously given appellant by Dr. Hill to include the $5200 given him on this date total $15,800.

On March 2, 1973, Dr. Hill furnished appellant $4500 more on the strength of appellant’s representation that the money was required to purchase further equipment and supplies and to make repairs to equipment already purchased in order to continue the removal of the silver. Finally, on the 20th of April, 1973, Dr. Hill gave to the appellant another $4,400 check above and beyond their previous agreement on the strength of the appellant’s representation that these final funds would enable him to complete the job of removing the silver from the canyon. All of these cheeks were cashed by appellant and the funds applied to his own use. The cache of silver never existed and no equipment or supplies as represented were ever purchased.

The evidence is clear that McCaleb’s purpose was to “con” Dr. Hill out of as much money as possible. He designed a scheme based upon a non-existent silver cache in Nevada as the device by which his purpose could be accomplished. First, he sold a one percent interest to Dr. Hill for him and his wife; second, he sold a one percent interest for Hill’s son; third, he entered into a contract to sell a 37% interest in return for funds to buy equipment; fourth, he had Dr. Hill advance additional money. Subsequent to the note there were two additional advances to finish the job. McCaleb’s single design, impulse and purpose are further evidenced by his signing of a promissory note for all previous amounts advanced to him.

The present case is like McClelland v. State, 390 S.W.2d 777 (Tex.Cr.App.1965), wherein this Court held that the State is not required to elect in a prosecution for bribery where it was dealing with one offense which involved many transactions. In the McClelland case the transactions occurred over a period of time extending from December 2, 1960 through May, 1962. During that time McClelland, then Probate Judge of Harris County, had accepted bribes from five different individuals in order that they might be appointed appraisers in cases before his court on 3511 occasions. During the same period 257 other persons had been so appointed to act a total of 2225 times. McClelland had established a bank account for his own use and benefit under the name of Tierra Grande, Incorporated, a corporation duly incorporated and licensed to do business in the State of Texas. No business was ever conducted by the corporation but the money in the account “ . was used to pay his club bills, parking garage fees, payment on automobiles, to send his son to camp, to pay gasoline bills, and a large part was paid to the appellant or to his wife directly.”

After a conviction where one scheme has been relied upon and all of the transactions have been proved and where there has not been an election, the State cannot prosecute upon the individual transactions in subsequent cases because each transaction was a part of the same case.

We hold that the trial court did not err in refusing to require an election.

Those cases upon which appellant has relied to the extent that they were in conflict were in effect overruled by McClelland v. State, supra. We adhere to the ruling in the McClelland case.

In his second and third grounds of error appellant complains of the admission of evidence and the refusal to give limiting charges regarding what appellant contends are extraneous offenses involving the sale of an interest in the alleged silver cache to Dr. Hill for his wife, E. J. Watkins and Mary Riley. The record reflects that Dr. Hill actually purchased the interest for his wife and that appellant’s counsel brought out the Watkins’ involvement during his examination of Mary Riley. As to the admission of Mary Riley’s testimony, the error, if any, was harmless. We fail to see how the jury would have or could have considered these transactions for a purpose other than as circumstances bearing on the appellant’s intent, motive, etc. The failure' of the court to limit the consideration of her testimony to a certain purpose, where that testimony could not have been used for any other purpose, does not require reversal. Kirkpatrick v. State, 515 S.W.2d 289 (Tex.Cr.App.1974); Ross v. State, 71 Tex.Cr.R. 493, 159 S.W. 1063 (1913), and Sapp v. State, 476 S.W.2d 321 (Tex.Cr.App.), cert. denied, 406 U.S. 929, 92 S.Ct. 1806, 32 L.Ed.2d 131 (1972).

No reversible error having been shown, the judgment is affirmed.

ROBERTS, Judge

(dissenting).

For the reasons stated in my dissenting opinion in Kirkpatrick v. State, 515 S.W.2d 289, 294 (Tex.Cr.App.1974), I dissent to the overruling of appellant’s three grounds of error.

      . While the indictment charges an offense occurring prior to the effective date of the new penal code, January 1, 1974, the record reflects that trial was not until January, 1975. We find it unnecessary to determine whether the provisions of Chapter 3, “Multiple Prosecutions,” of the new Penal Code (effective January 1, 1974) are applicable to the instant case, since there appears to have been no attempt at “Consolidation and Joinder of Prosecutions” as provided for in V.T.C.A. Penal Code, Section 3.02. See also Article 21.24, V.A.C.C.P., as amended (effective January 1, 1974) relative to “Joinder of Certain Offenses” in the charging instrument.

      . These grounds are incorrectly decided even under the rationale of the majority opinion in Kirkpatrick. There the Court held that a limiting charge on extraneous offenses was not required because the defendant in that case was charged with misapplication of county funds under Article 95 of our former Penal Code. Thus, the Court said: “The gravamen of the offense under this particular statute is embezzlement of funds belonging to a public body, not the taking of property from a particular individua1 or individuals." Kirkpatrick v.

        State, supra, at 291. [Emphasis added.] In the case before us, the offense is theft under our former Code, which necessarily involves a single taking from an individual “person”. Art. 1410, V.A.P.C. (1925). Here, there was no “ultimate conversion of county funds” which was comprised of “many transactions which . . . were all a part of the State’s main case.” Kirkpatrick, supra, at 292. McClelland v. State, 390 S.W.2d 777 (Tex.Cr.App.1965), can be similarly distinguished: like misapplication of county funds, bribery is an offense against the public, not an individual.
      Moreover, the Kirkpatrick majority relied heavily on the fact that any error was cured and rendered harmless by the fact that the defendant took the stand and admitted retaining the funds. In the case before us, the appellant did not take the stand or present any evidence. The Kirkpatrick case simply does not apply.
      Nor are Ross v. State, 71 Tex.Cr.R. 493, 159 S.W. 1063 (1913), and Sapp v. State, 476 S.W.2d 321 (Tex.Cr.App.1972), applicable. Both of those cases deal with evidence used for impeachment, and both are distinguishable on their facts.


author: DOUGLAS, Judge.

text:
    William THOMPSON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 51365
    Court of Criminal Appeals of Texas.
    June 9, 1976.

      Larry L. Miller, Dallas, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., and Les Eubanks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of murder with malice. The jury assessed punishment at life.

Among other things, the sufficiency of the evidence to corroborate an alleged accomplice witness is challenged. On December 14, 1973, Wilma McCage, who resided just across the street from Tietze Park in Dallas, reported to police that she heard a loud noise that sounded like a shot between 12:15 a. m. and 12:20 a. m. At approximately 1:00 a. m., Officer Kenneth Maltby of the Dallas Police Department went to the park and found a body lying near the sidewalk with a bullet wound in the chest. The wallet found on the body contained a driver’s license and cards bearing the name “James Anderson.” Officer Maltby found the victim’s car parked at the Quarterback Lounge approximately one mile from the park. Sonny Thompson and Betty Pruitt managed the Quarterback Lounge and they kept a .410 shotgun behind the bar.

Harold Taylor testified that at approximately 11:00 p. m. he and his wife had gone to the Quarterback Lounge on December 13, 1973. Present in the lounge when they arrived were Thompson, known as “Sonny,” and his girlfriend, Linda Hines; the barmaid, Sharon Keatts; Bobby Vandiver and Betty Cannon, both of whom were deceased at the time of the trial; Helen Vargas; James Anderson (the deceased) and an unnamed couple with him. Taylor stated that as he walked in Thompson said, “Are you ready to get down?” He didn’t really know what Thompson meant “because everything seemed peaceful and quiet . . . ”, but he responded, “Yea . . . who with?” Appellant pointed to the deceased and the unnamed couple. At that time appellant said, “I am fixing to have some trouble with them m_f_” After Anderson went to the rest room, Thompson followed and Taylor could hear blows being struck.

“. . . Then Sonny come out and shortly after that Jimmy Anderson come out and Sonny called him over there and said, ‘Come on, buddy, let’s forget all of this, let’s go get high,’ so Jimmy mumbled, he said, ‘That’s right, Sonny, you know I like you,’ and Sonny put his arm around him, then they went, I guess you call it a storeroom back there in the back and — ”

He then saw Thompson strike Anderson on the jaw and knock him to the floor. Thompson then asked Taylor to help him get Anderson out the back door. After they carried Anderson out, Thompson left and later drove up to the rear of the lounge in a Malibu which belonged to Linda Hines. When Taylor and Thompson put Anderson in the back seat Taylor noticed the shotgun in the front seat. Taylor rode in the back seat with Anderson to Tietze Park. After they arrived at the park Thompson parked and then got Anderson out of the car. Taylor related that Anderson was “kind of staggering” and was not able to walk. When they got across the street, Thompson knocked Anderson down. Taylor further related that Thompson had whipped Anderson on more than one occasion and felt certain that he was going to do it again. Thompson asked Taylor, who had remained in the car, to bring the shotgun, which he did. Taylor then returned to the car. He testified that he thought Thompson was going to scare Anderson or hit him with the barrel of the gun. Instead Thompson “. took the shotgun and just placed it over him.” He then realized that Thompson intended to shoot Anderson. He tried to reason with Thompson not to shoot and told him that several people at the lounge had seen them leave with Anderson. Thompson replied, “Oh, f.__ him,” and shot Anderson in the chest. The two of them returned to the lounge in the car and Taylor then left with his wife.

Jerry Bob Combs, a roommate of Linda Hines and Helen Vargas, was called as a rebuttal witness by the State and he testified that some time in the early hours of December 14, 1973, he had received a call from Thompson who asked him to clean up the red and white Malibu and he did by using a cleanser and wiping the seats with a towel. Later the same day, around 2:00 or 3:00 p. m., Thompson called him again and asked him to dispose of the shotgun in the upstairs closet because it was the gun with which he had killed Anderson. Combs wrapped the gun, a single action .410 gauge shotgun, in cloth and placed it in a trash dumpster behind the apartments.

First, appellant contends that the trial court erred in refusing to instruct the jury that Harold Taylor was an accomplice witness as a matter of law. Taylor’s testimony does not make him an accomplice witness as a matter of law. A fact question as to his being an accomplice witness was submitted to the jury. This instruction was sufficient under the facts of this case. Van Buskirk v. State, 492 S.W.2d 279 (Tex.Cr.App.1973).

Appellant contends that the evidence is insufficient to corroborate the testimony of Taylor. Under the first contention just discussed, Taylor was not an accomplice witness. It was not necessary to corroborate his testimony. We hold that his testimony, along with other evidence presented, is sufficient to support the conviction. Brown v. State, 505 S.W.2d 850 (Tex.Cr.App.1974).

Appellant next complains that the prosecutor committed improper jury argument when he made the following remarks at the guilt stage of the trial:

“ . . . Now, ask yourselves this, how do we have a case on Harold Taylor? Sonny Thompson sure isn’t going to get up there and tell it, is he? No.”

He contends that the statement is a direct comment on his failure to testify. The argument of counsel on both sides has been reviewed and we find that the statement complained of, if in fact it was such a comment as alleged, was not so prejudicial that it could not be cured by an instruction. Appellant’s objection was sustained and the jury was instructed to disregard the statement. No reversible error is shown.

Complaint is made of certain remarks of the prosecutor at the guilt stage of the trial. He contends that the prosecutor interjected his personal opinion when he argued:

“ . . . Now, I am convinced of this case and I ask you in all good conscience, I am not up here trying to obtain another conviction, I have got my job and whether I lose this case or win does not affect my job whatsoever, but I doubt that I have ever been as convinced of a case as I am in this case today. . . . ”

The record shows that the statement was made following his summation of the evidence. After the objection was overruled, the prosecutor stated:

“Defense counsel has stood up here and as it’s his duty to do, earnestly implore and told you from the bottom of his heart about this man’s innocence, et cetera. Well, I am imploring y’all to find the right verdict in this case, to use your good judgment and your good conscience and I will ask you, no matter how long it takes, to hang out until you find this man guilty. Guilty.”

Prior to the argument of the prosecutor, counsel for the defense had argued that “Mr. Thompson did not do what he is accused of.” Two other times he argued, “He did not do that.” There is no statement or indication that the prosecutor had other evidence that he could not get before the jury nor is there any indication to the jury that he had other matters in mind when he made the statement. The argument was a proper reply to argument of counsel for appellant.

Further, practically the same argument by the prosecutor was before the jury before the statements objected to were made. This argument was “ . . .we are convinced that this man right here is the man that committed the murder just like those witnesses told you and just as the evidence shows.”

Even if it could be said that the complained of argument was error, it would not be reversible because the same was already before the jury without objection.

Appellant next contends that the court erred in admitting into evidence the multi-count indictment of a prior conviction in District Court of Travis County which had various other offenses alleged therein for which he was not convicted. The State made an election to proceed only on the allegation of the primary offense. The State proved that appellant was the person convicted in the Travis County case. The prior convictions alleged in that case were later proved by stipulated documentary evidence. Appellant admitted that he had been convicted of these offenses when he testified. Any error was made harmless by such proof.

He also contends that reversible error was committed when a prior conviction was admitted into evidence and said conviction had been later found to be constitutionally invalid. The complained of conviction was that which was introduced at the punishment stage as State’s Exhibit # 19 wherein appellant had been convicted of larceny in Cause No. 4846, United States v. William Sonny Thompson on April 13, 1959, before the Honorable Ben Rice, United States District Judge, U.S.D.C., Western District of Texas, Waco Division. He points out to this Court that that conviction was held to be constitutionally invalid in Thompson v. Beto, 474 F.2d 1345 (5th Cir.1973).

Appellant testified at the punishment stage of the trial. When the exhibit in question was offered, there was no objection that it was constitutionally invalid and there is no showing in the record that at the time of such prior conviction the appellant was indigent, without counsel, and did not waive the same. Six prior convictions were offered in evidence and appellant’s counsel objected to four of them on the grounds that he was without counsel at these trials. No objection was made to the case involving the federal conviction complained of and there was no objection to the federal conviction which was pled for enhancement. A constitutional ground may be waived by a failure to object. Mutscher v. State, 514 S.W.2d 905 (Tex.Cr.App.1974); United States v. Lazarus, 425 F.2d 638 (9th Cir.1970).

Appellant first brought the matter to the court’s attention in his amended motion for new trial. At the hearing on his amended motion he introduced a copy of an unpublished opinion of the United States District Court holding his 1959 federal conviction invalid. The copy was not certified and appellant’s amended motion for new trial was overruled. Waiting until the amended motion for new trial to present the question was apparently trial strategy by the appellant who from his record shows that he was well acquainted with criminal procedure. This was no doubt trial strategy where he sought a favorable verdict, and if he did not obtain it, he would get a new trial. At most, any error would be harmless because there were five other valid prior convictions introduced at the penalty stage of the trial. See Williams v. State, 493 S.W.2d 863 (Tex.Cr.App.1973).

Lastly, he contends that it was error for the trial court to allow Jerry Combs to testify because his name was not on the list of witnesses furnished by the State to him. This contention is without merit. Combs was called as a rebuttal witness by the State. No objection was made to his testifying. Nothing is presented for review.

No reversible error having been shown, the judgment is affirmed.