author: BYERS, Judge.

text:
    Frank E. ROBERTS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 20, 1979.
    Larry R. Dillow, Kingsport, for appellant.
    William M. Leech, Jr., Atty. Gen.; William P. Sizer, Asst. Atty. Gen., Nashville, R. Jerry Beck, Asst. Dist. Atty. Gen., Blount-ville, for appellee.
   BYERS, Judge.

OPINION

The appellant was placed on probation after pleading guilty to burglary and receiving a sentence of three (3) years. Appellant challenges the ruling of the trial court revoking his probation.

The judgment is affirmed.

The basis of the revocation was the conduct of the appellant which led to his arrest on a charge of driving while intoxicated and on a charge of burglary which was later reduced to a charge of attempting to commit a felony.

The evidence at the revocation hearing shows the appellant, along with another man, was seen in the vicinity of a jewelry store on Broad Street in Kingsport at approximately 1:30 a. m.

A witness saw the appellant approach the store, look closely at the windows, return to a vehicle he was driving, remove something therefrom and return to the front of the store. The witness drove down the street, turned and came back, saw appellant’s vehicle driving away and heard the sounding of a burglar alarm.

Officers were given the description of the vehicle and the driver and subsequently stopped the described vehicle which was being driven by the appellant.

The officers observed the vehicle weaving erratically prior to stopping it. The appellant was unsteady on his feet and smelled as if he had been drinking. The appellant refused a blood test and breathalyzer test which would have determined Appellant’s sobriety or intoxication.

Another officer, who went to the jewelry store while the arrest was in progress, observed a window had been broken therefrom.

On this evidence, the trial judge found the appellant had violated the terms of his probation by driving while intoxicated and attempting to break into the jewelry store.

The evidence clearly supports their finding and such finding has the weight of a jury verdict and will not be overturned unless the evidence preponderates against the finding. Raper v. State, 3 Tenn.Cr.App. 406, 462 S.W.2d 261 (1970).

The appellant mounts his most serious attack upon the judgment by arguing he should not have been tried on the revocation warrant until after he had been tried on the charges of driving while intoxicated and attempt to commit a felony because he would forfeit his Fifth Amendment right if he were required to testify at the revocation hearing concerning these two offenses.

The appellant candidly and correctly concedes the law of this state has been decided adverse to his Fifth Amendment claim. In the case of Barker v. State, 483 S.W.2d 586 (Tenn.Cr.App.1972), Barker represents the prevailing law of this state and the contentions of the appellant are not sufficiently persuasive to require a departure therefrom.

As a practical matter, there is nothing to be gained by adopting the view expounded by the appellant. The dilemma which he insists on creates a classic chicken and egg argument.

As pointed out by the trial judge at the revocation hearing, the appellant, if the motion to continue the revocation hearing until disposition of the other charges had been granted, could insist the trial on the offense pending against him should wait until a completion of the probation revocation hearing.

Beyond this, even if the appellant were acquitted on the driving while intoxicated charges and on the charge of attempting to commit a felony, this would not bar a revocation of his probation on the actions evident in the record. Although the evidence in a trial may not rise to the level of proof beyond a reasonable doubt in order to sustain a conviction, the acts on which the prosecution was based will sustain a revocation of probation where the level of proof need not show the violation of the terms of probation beyond a reasonable doubt. See Raper v. State, supra. In is sufficient if the proof allows the trial judge to make a conscientious and intelligent judgment. Barker v. State, supra. Certainly this is present in this case.

DWYER and TATUM, JJ., concur.


source: Caselaw Access Project

author: WALKER, Judge.

license: Public Domain

text:
    Frazier LUMPKINS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 21, 1979.
    Certiorari Denied by Supreme Court June 11, 1979.
    Dan Garfinkle and Robert M. Garfinkle, Nashville, for appellant.
    William M. Leech, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Nashville, Elmer D. Davies, Jr., Dist. Atty. Gen., Franklin, for appellee.
   WALKER, Judge.

OPINION

The sole question raised in this appeal is whether Frazier Lumpkins was twice placed in jeopardy, in violation of the guarantees of the Fifth Amendment of the United States Constitution and Article 1, Section 10, Tennessee Constitution, by convictions in Davidson and Williamson Counties for concealing stolen property and for robbery, respectively. On April 4, 1978, Lumpkins entered a plea of guilty in Davidson County for concealing stolen property. After unsuccessfully urging the Circuit Court for Williamson County that prosecution for armed robbery there would constitute double jeopardy, the appellant pled guilty on April 24, 1978, to simple robbery, and a sentence of not more nor less than seven years was imposed. He reserved the right to appeal the denial of his motion to dismiss. Tenn.R.Cr.P. 37(b)(2)(i).

It was stipulated by the parties that the green 1976 Corvette and .12 gauge single barrel Tiger brand shotgun which Lump-kins admitted concealing in Davidson County were the same items taken in the Williamson County robbery. The Williamson County presentment charged that these items were taken from Jackie Hicklen on October 11,1977, while the Davidson County indictment alleged that Lumpkins had concealed these goods there in October 1977, without specifying the exact date. As already noted, the Davidson County conviction preceded that of Williamson County contested here by Lumpkins.

In this appeal, Lumpkins argues that his double jeopardy rights were violated because the concealing of the stolen property and the robbery were so closely related that the same evidence is necessary to prove the elements of both offenses. He also urges that his prosecution in two counties pursuant to the same offense is constitutionally impermissible because the State of Tennessee is a single sovereignty, regardless of political subdivisions within the state. Both aspects of his assignment of error have merit, and the Williamson County robbery conviction must be reversed.

According to the provisions of TCA 39-4218, a defendant can be convicted of not more than one offense of larceny or receiving or concealing stolen property for a single felonious transaction. The Tennessee Supreme Court has defined robbery as aggravated larceny, noting that the criminal intent necessary to proof of larceny may be inferred under appropriate circumstances. State v. Scates, 524 S.W.2d 929 (Tenn. 1975). See also, e. g., State v. Winsett, 217 Tenn. 564, 399 S.W.2d 741 (1965). Prosecutors may not circumvent the double jeopardy clause by dividing a single crime into separate temporal or spatial units, even though the perspective of a given authority may vary from that of law enforcement officials with overlapping jurisdiction over a given defendant. Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The same elements required to prove the concealing charge were also necessary to the robbery conviction in this case. Thus, the dual convictions may not stand. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Black, 524 S.W.2d 913 (Tenn.1975).

Neither is there any legal significance for double jeopardy purposes to the fact that these convictions were in separate counties. The subdivision of a sovereign state into various political sections does not alter the limitation on that sovereign’s power constitutionally to impose punishment for crimes; a single sovereignty may impose only a single punishment for a single offense. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). See also United States v. Wheeler, 435 U.S. 313, 320-321, 98 S.Ct. 1079, 1084-1085, 55 L.Ed.2d 303, 311-312 (1978).

The General Assembly clearly intended that larceny related charges stemming from a single felonious transaction subject a defendant to a single punishment under our law. See TCA 39-4218. Lumpkins is guilty of such conduct but may be convicted of only one offense for the behavior in question. This robbery conviction is accordingly reversed and the case dismissed.

It is so ordered.

RUSSELL, P. J., and RAYMOND H. LEATHERS, Special Judge, concur.


author: DWYER, Judge.

text:
    George William BRADY and Leroy Marshall, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    April 5, 1979.
    Certiorari Denied by Supreme Court July 2, 1979.

      Clyde A. Dunn, Newport, Carl R. Ogle, Jr., Jefferson City, Jerry K. Galyon and David B. Maxwell, Sevierville, for appellants.
    William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, A1 C. Schmutzer, Jr., Dist. Atty. Gen., Richard R. Vance, Asst. Dist. Atty. Gen., Sevierville, for appellee.
   OPINION

DWYER, Judge.

George William Brady and Leroy Marshall were each convicted of four charges of first degree murder and four charges of use of a firearm in committing a felony. Each appellant’s punishment was fixed at 99 years in the State penitentiary on each charge of first degree murder and five years in the State penitentiary on each charge of use of a firearm in the commission of a felony. The trial court ordered the sentences to be served consecutively. The appellants appeal with assignments of error.

At approximately 9:30 a. m. on Saturday, April 9, 1977, the Kodak Branch of the Citizen’s National Bank located on Highway 66 in Sevier County was robbed and four persons were found shot and killed, execution-style. Three employees of the bank, Hugh Kyle Beeler, vice president and manager, Harriett Swaggerty, receptionist, and Linda Simms Davis, head teller, and Earl Underwood, a customer, were all found “lying flat on their stomachs” on the floor in the drive-in window area of the bank in close proximity to one another. Each had been shot in the head at close range with either a .38 or a .32 caliber weapon. Mrs. Swaggerty was still alive when the first investigating officers arrived at the scene; however, she expired shortly thereafter without regaining consciousness.

The record reveals that Mr. Underwood was in the bank to deposit three dollars in pennies in his granddaughter’s savings account. An audit by bank officials disclosed that $28,564.40 had been taken, part of which was “bait money” (serial numbers recorded) which consisted of three five-hundred-dollar packages of twenty-dollar bills. An iron grey box was also taken from inside the vault.

The Sheriff’s Office of Sevierville, the T.B.I. and the F.B.I. made an intense and immediate investigation into this heinous crime. The evidence in the record reveals that two white males were seen in a brown Torino Ford equipped with racing tires on the rear near the bank before the robbery. While on patrol at approximately midnight, April 9, 1977, a deputy sheriff of Sevier County stopped a Ford Torino which matched this description in Pigeon Forge. The driver was appellant Brady. The appellant consented to drive to the Sheriff’s office at Sevierville. The deputy followed him. The record reveals that at the Sheriff’s office F.B.I. Agent Ronald Reisner read appellant Brady his rights before interrogating him. Agent Reisner also read and explained to appellant Brady a “consent to search” form, which gave consent to the agents to search his car; Brady signed the form. When the appellant was asked for the keys to his car, he furnished the agents with the ignition key but said he did not have a trunk key. A thorough search of the entire car revealed $2,954 in the trunk, of which $500 was “bait money”, and a .38 caliber revolver under the dash. According to an F.B.I. firearms examiner at the trial, the revolver’s riflings matched the rifling impression of the bullets which were removed from three of the victims. After Brady was formally arrested, a search of his person revealed hidden in his shoes, $4,692, of which $500 was “bait money” and a key that fit the trunk of his car. Brady when questioned at that time denied knowing Marshall.

The appellant Marshall voluntarily came to the Newport Police Department in Newport, Tennessee, at approximately 9:00 p. m., April 9, and when questioned maintained that he was elsewhere at the time of the crime; that he knew Brady and was sure he was not with him that morning. He was allowed to leave but was taken into custody at approximately 5:00 a. m. Sunday, April 10,1977. The record reveals that Mrs. Clara Nell McClure, wife of Marshall’s half-brother, testified that Marshall came to her house on the evening of April 9 and asked her to bury a pistol. When she asked him if it was “hot” he said no, but he had one that would burn her hands. He also gave her a sack which he said contained $2,500 “hot ones”. On April 10, 1977, Mrs. McClure gave the pistol, a .32 caliber automatic weapon and $2,510 to the F.B.I., of which three twenty-dollar bills were “bait money”.

Bobbie Rollins, appellant Brady’s only daughter, testified that around noon on April 9, her father and Marshall came to her house in her father’s brown Ford Tori-no. She testified that Marshall had a bag in his hand and what appeared to be a pistol butt in his belt. They then asked her to drive them to Newport. On the way her father had her to stop at a river at which time he took the metal box to the river and later said he threw it in the river. A box was later recovered near the river and was identified as being identical to the metal box taken from the vault of the robbed bank.

Mr. Jesse Brooks, a customer at the bank on April 9, 1977, identified Marshall as the driver of a Ford Torino who inquired of him on the bank parking lot that morning as to when the bank would open. He further testified that there was another occupant in the car.

A hair found on the shirt of Mr. Underwood was identified by a fiber and hair, examiner expert of the F.B.I. as exhibiting the same microscopic characteristics as do the hairs that were taken from the head of Marshall.

The appellants did not testify but offered in their behalf several witnesses and stipulated statements taken from witnesses. Defense witness, Mr. Kenneth McClure, testified that he did not see appellant Marshall on the night of April 9. Another defense witness testified he took Brady home at approximately 12:30 p. m. on April 9. Billy Cureton, owner of a used car lot in Newport, testified that On April 9, between 11:00 and 12:00 p. m., appellant Marshall had purchased a ear from him.

ASSIGNMENT OF ERROR I: THE ENTIRE JURY SELECTION PROCEDURE WAS SO IRREGULAR AS TO CONSTITUTE REVERSIBLE ERROR AND THE COURT ERRED IN FAILING TO GRANT APPELLANTS’ MOTION TO QUASH THE ENTIRE JURY PANEL.

Both appellants contend that the jury selection process and the denial of their motion to quash the entire jury panel was error. The appellants contend that the court consistently rehabilitated prospective jurors who had formed fixed opinions as to the guilt or innocence of the appellants which caused the appellants to exercise peremptory challenges on these jurors. We have reviewed the eight hundred or so pages of the record which cover this jury selection process. While it may be true that many of the jurors knew about appellants’ prior convictions in the Federal trial for robbery, all of the jurors expressed upon their oaths they could and would give the appellants a fair trial. We are satisfied under Sommerville v. State, 521 S.W.2d 792 (Tenn.1975) and State v. Jefferson, 529 S.W.2d 674 (Tenn.1975) that the appellants had an impartial jury and the trial court did not abuse his discretion in questioning the jurors. We are also satisfied the court did not seat any juror contrary to the provisions of T.C.A. 40-2507. The first assignment of error is overruled.

ASSIGNMENT OF ERROR II: THE COURT ERRED IN DENYING APPELLANTS’ APPLICATION FOR CHANGE OF VENUE.

The record shows that the appellants filed numerous newspaper articles concerning the coverage of the events, i. e., the investigation, the arrests, and the Federal trial. They also filed a survey conducted by the appellant Marshall’s counsel’s secretary which, the appellants contend, prove that twenty-three out of twenty-five individuals on the streets of Sevierville had heard of the bank robbery-murder at the Kodak Branch of the Citizens National Bank. The matter of change of venue addresses itself to the sound discretion of the trial judge. Rippy v. State, 550 S.W.2d 636 (Tenn.1977). The trial judge took the motion for change of venue under advisement until it manifestly appeared after the jury voir dire that a fair and impartial jury panel had been selected. Therefore, we are satisfied, as was the trial court, that no undue excitement had been shown, T.C.A. 40-2201, and that the appellants did receive a fair trial in that community. With respect to the situation where prospective jurors may have had some knowledge of the events and issues, we agree with the court in Irvin v. Dowd, 366 U.S. 717, 721, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961):

“ ‘The theory of the law is that a juror who has formed an opinion cannot be impartial.’ Reynolds v. United States, 98 U.S. 145, 155, 25 L.Ed. 244. It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. ... To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut a presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”

We are satisfied the trial court did not abuse its discretion in denying the motion. The assignment is overruled.

ASSIGNMENT OF ERROR III: THE COURT ERRED IN NOT QUASHING THE INDICTMENTS FOR MURDER IN THAT THE APPELLANTS HAD PREVIOUSLY BEEN CONVICTED FOR THE CRIME OF BANK ROBBERY IN THE UNITED STATES DISTRICT COURT IN KNOXVILLE, TENNESSEE, AND THE INDICTMENT FOR WHICH THESE APPELLANTS WERE TRIED CONSTITUTE DOUBLE JEOPARDY.

The appellants contend that the Federal conviction would bar the State’s prosecution. We are satisfied that the conviction of each appellant in Federal Court for the offense of bank robbery, Title 18, U.S.C. § 2113(a), (e), resulted in one punishment, its severity determined by the nature of the accompanying aggravating circumstances, i. e., four murders. United States v. Rossi, 552 F.2d 381 (1st Cir. 1977). The indictment and conviction in Federal Court did not include a separate offense of murder. The appellants in the instant case were indicted and convicted of first degree murder. Hence, there is no double jeopardy here. This assignment is overruled.

ASSIGNMENT OF ERROR IV: THE TRIAL COURT ERRED IN NOT GRANTING APPELLANTS’ MOTIONS FOR CONTINUANCE.

It is appellants’ reasoning they did not have sufficient time to prepare for trial. The record reflects appointment of counsel on June 8, 1977, with trial commencing on July 13, 1977, which exceeds the fourteen day requirement in T.C.A. 40-2005. We note counsel had the benefit of conferring with appellants’ counsel in the Federal trial.

Continuance is a matter which addresses itself to the sound discretion of the trial court. The exercise of this discretion will not be disturbed unless there is a clear showing that the appellants have been prejudiced in some way by the refusal to grant a continuance. Moorehead v. State, 219 Tenn. 271, 409 S.W.2d 357 (1966). We agree with the trial court in that the appellants had “sufficient” opportunity to prepare their case under the facts and circumstances of the case. Brown v. State, 553 S.W.2d 94 (Tenn.Cr.App.1977). Finding no abuse of discretion to the prejudice of the appellants, the assignment of error is overruled.

ASSIGNMENT OF ERROR V: THE COURT ERRED IN FAILING TO GRANT APPELLANTS’ MOTION FOR PSYCHIATRIC EVALUATIONS.

The only evidence adduced at the hearing on this motion was a statement of counsel that appellant Marshall had suffered a head injury in an automobile accident; therefore, the trial court did not abuse its discretion in denying the motion. T.C.A. 33-708(a).

ASSIGNMENT OF ERROR VI: THE COURT ERRED IN ALLOWING THE TESTIMONY OF F.B.I. AGENT, BOB NEILL, CONCERNING EVIDENCE OF HAIR SAMPLES.

The appellants content that the testimony of the expert witness on hair identification was speculative and the trial court erred in allowing it into evidence. We disagree. With proper instructions by the court, the weight to be given his testimony was, we think, a relevant factor for the jury. Therefore, this assignment is overruled.

ASSIGNMENT OF ERROR VII: THE COURT ERRED IN FAILING TO SUPPRESS TESTIMONY SURROUNDING THE IDENTIFICATION OF A BROWN AUTOMOBILE WHICH CONSTITUTED AN IMPROPER AND SUGGESTIVE “CAR LINE-UP”.

We find no merit in appellant Brady’s novel notion that identification of his automobile should have been suppressed because the “car line-up” was unduly suggestive. The facts and circumstances surrounding the identification of the Ford To-rino in the police lot was a matter for the jury. This assignment is overruled.

ASSIGNMENT OF ERROR VIII: THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANTS’ MOTION FOR SEVERANCE.

The granting of a motion for severance is within the sound discretion of the trial court. Hodges v. State, 491 S.W.2d 624 (Tenn.Cr.App.1973). To determine if there has been an abuse of that discretion, this court looks to whether the joint trial has developed prejudice to the defendants. Woodruff v. State, 164 Tenn. 530, 51 S.W.2d 843 (1932). Such a motion must be accompanied by an affidavit detailing the grounds for its necessity. Mitchell v. State, 92 Tenn. 668, 23 S.W. 68 (1893). Since no affidavit was filed by appellant Brady, his motion is without merit.

The appellant Marshall contends that evidence applicable to Brady used at the trial would establish his (Mitchell’s) guilt by association. We are in full accord with the court in Woodruff v. State, supra, 164 Tenn. at page 538, 51 S.W.2d at page 845, where it says:

“ . . .It may have been to the interest of each that he be tried alone, but the orders of the court are molded to protect rights, and not merely the interests, of persons accused of crime. The State, as well as the persons accused, is entitled to have its rights protected, and, when several persons are charged jointly with a single crime, we think that the State is entitled to have the fact of guilt determined and punishment assessed in a single trial, unless to do so would unfairly prejudice the rights of the defendants.”

The appellant Marshall also contends that the statement by appellant Brady, in which he said he did not know Marshall, was a violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Appellant Brady’s statement does not inculpate appellant Marshall. There is thus no violation of the rule as stated in Bruton v. United States, supra.

ASSIGNMENT OF ERROR IX: THE COURT ERRED IN NOT TRANSFERRING THE APPELLANTS TO THE SEVIER COUNTY JAIL PENDING TRIAL IN ORDER FOR THEM TO ASSIST COUNSEL IN THEIR DEFENSE PREPARATION.

The fact that the appellants were not transferred to the Sevier County Jail pending trial, we think, did not unduly hamper them in the preparation of their defense. This assignment of error is overruled.

ASSIGNMENT OF ERROR X: THE COURT ERRED IN NOT GRANTING APPELLANTS’ MOTION TO OBTAIN THE NAME AND ADDRESS OF THE INFORMER^) WHO PROVIDED THE NAMES OF THE APPELLANTS AS THE PERPETRATORS OF THE OFFENSES FOR WHICH THEY WERE CHARGED.

With no evidence reflecting that the informant was a witness or participant in the crime, we find no abuse of the trial court’s discretion in denying this motion. To hold otherwise under these circumstances would be against public policy and discourage citizens from giving information about criminal activity to law enforcement officials. Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487 (1955). This assignment is overruled.

ASSIGNMENT OF ERROR XI: THE COURT ERRED IN FAILING TO SUPPRESS PHYSICAL EVIDENCE OBTAINED FROM THE AUTOMOBILE BELONGING TO THE APPELLANT GEORGE BRADY.

Appellant Brady contends that due to his intoxicated condition as well as his illiterate state he did not knowingly, voluntarily or intelligently consent to the search of his automobile. The trial court found after a full hearing on the motion to suppress that the F.B.I. agents fully advised the appellant Brady of his rights; the agent read and explained the consent to search form to him. The agents also testified that Brady did not appear to be intoxicated. In matters of this kind the findings of the trial court will not be overruled unless we find the evidence preponderates against his ruling. We think the evidence supports his ruling that the search of appellant Brady’s car was a free and voluntary consent search.

The appellant Marshall’s rights were not violated by the search of appellant Brady’s car. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). This assignment of error is overruled.

ASSIGNMENT OF ERROR XII: THE COURT ERRED IN FAILING TO GRANT APPELLANTS’ MOTION FOR MISTRIAL AFTER ALLOWING INTRODUCTION OF EVIDENCE BY THE PROSECUTION WITNESS, RON REISNER, WHO WAS USED TO IMPEACH A PRIOR STATE’S WITNESS AND ADDITIONALLY, THAT ERROR WAS COMMITTED BY DECLARING BOBBIE ROLLINS A HOSTILE WITNESS WHICH RENDERED THE IMPEACHMENT PROCESS ILLEGAL.

During the trial, in the corridor, after F.B.I. Agent Reisner had testified, Bobbie Rollins, appellant Brady’s daughter, approached and informed him that she had seen her father and Marshall around noon on the robbery-murder date. They had driven to her house in the Ford Torino and wanted to borrow her car. Mrs. Rollins told them if they had committed the bank robbery they had left a live witness to identify them. Marshall stated to her, “That woman won’t live, I shot her in the head.” The agent reported this to the attorney general and it in turn was reported to the appellants. The witness Rollins obviously was trying to help her father and gave the information to the agent, we think, in the hope of acquiring some clemency for her father. At any rate, the attorneys for appellants in admirable candor reported to the court this information and further asked the court for guidance because they did not represent the witness and therefore could not advise her. When the proceedings resumed the witness got on the stand and denied making the statement.

In the first instance, we do not think under these facts that the witness rule was violated. Nance v. State, 210 Tenn. 328, 358 S.W.2d 327 (1962). We also think under these circumstances the court did not abuse its discretion in declaring the witness to be hostile and allowing cross examination when she denied making the statements to the agent. While we think perhaps the better practice would have been to lay a foundation for impeachment and then recall the agent in rebuttal at the close of all the proof, as urged by the appellant, this deviation did not affect the results. The assignment is overruled.

ASSIGNMENT OF ERROR XIII: THE COURT ERRED IN ALLOWING THE TESTIMONY OF AGENT WALTER BEARDEN CONCERNING INCRIMINATING ADMISSIONS OF THE APPELLANT, GEORGE BRADY, BECAUSE THE PROSECUTION FAILED TO COMPLY WITH THE APPELLANTS’ DEMAND FOR DISCOVERY OF SUCH ADMISSION AND SAME WAS NOT FURNISHED.

The evidence from our review conveys the State had complied with the discovery order in that appellant Brady’s statement in which he said he had put the pistol under the dash of his car was furnished to the appellants. The record also reveals that appellant Brady’s counsel was aware this statement was used in the Federal trial. There was no ambush here. Ferguson v. State, 530 S.W.2d 100 (Tenn.Cr.App.1975). This assignment is overruled.

ASSIGNMENT OF ERROR XIV: THE VERDICT OF THE JURY WAS CONTRARY TO LAW AND SHOULD BE SET ASIDE IN THAT THE APPELLANTS WERE CONVICTED OF FOUR SEPARATE COUNTS OF USE OF A FIREARM IN COMMISSION OF A FELONY UNDER T.C.A. 39-4914, WHICH IS ENHANCEMENT PENALTY IMPOSED UPON AND IN ADDITION TO THE CRIMES OF FIRST DEGREE MURDER.

In conformity with State v. Hudson, 562 S.W.2d 416 (Tenn.1978), the record is remanded so that the trial court may revise each judgment to reflect murder in the first degree committed by means of using a firearm, to wit: a pistol, and by providing that the punishment for each offense of murder shall consist of confinement in the State penitentiary for 99 years and, for using a firearm in the commission of that felony, confinement for five years in the State penitentiary; with the sentences to be served consecutively.

ASSIGNMENT OF ERROR XV: THE VERDICT OF THE JURY SHOULD BE SET ASIDE AND VACATED BECAUSE THE DEFENDANTS WERE NOT AFFORDED A SPEEDY APPEAL.

Since no prejudice has been shown by the delay in the appeal this assignment of error is without merit and overruled.

The judgment of the trial court is affirmed but remanded in accordance with State v. Hudson, supra.

TATUM and BYERS, JJ., concur.


author: WILLIAM S. RUSSELL, Presiding Judge. O’BRIEN, Judge,

text:
    Fred SMITH, Appellant, v. Vinson THOMPSON, Warden, Appellee. Vinson THOMPSON, Warden, and Tennessee Department of Correction, Appellants, v. Joseph W. McKENNA, Appellee. Vinson THOMPSON, Warden, Jim Dickman, Warden, and Lamar Alexander, Governor, Appellants, v. Roland HARRIS, Jr., Appellee.
    Court of Criminal Appeals of Tennessee.
    April 10, 1979.
    Certiorari Denied by Supreme Court May 29, 1979.

      David M. Pack, James W. Price, Jr., Nashville, for appellant in No. 532.
    Thomas Wardlaw Steele, Nashville, for amicus curiae, John J. Hooker, Jr.
    Edward M. Yarbrough, Nashville, for ap-pellee in No. 534.
    Thomas H. Shriver, Dist. Atty. Gen., William M. Leech, Jr., Atty. Gen., C. Hayes Cooney, Chief Deputy Atty. Gen., Robert A. Grunow, Senior Asst. Atty. Gen., Nashville, for appellants.
    Lionel R. Barrett, Jr., William P. Redick, Jr., Nashville, for appellee in No. 536.
   OPINION

WILLIAM S. RUSSELL, Presiding Judge.

These three consolidated cases each present the question of the legal effect of sentence commutations signed by then Governor Ray Blanton two days before he left office. Each of the convicts involved in these three cases sought release from the penitentiary by prosecuting petitions for the writ of habeas corpus. After full hearings, McKenna and Harris were granted the writ and Smith was denied it.

The position of the State is that former Governor Blanton had the power and authority to issue the commutations, but that they were never delivered prior to their recall by Governor Alexander and the State insists that delivery is essential to their effectiveness.

The position of McKenna, Harris and Smith is that the delivery of a granted commutation is not essential to its operation; but if delivery is essential, then these commutations were in fact delivered.

The position of the Amicus Curiae is that former Governor Blanton lacked the authority to issue these commutations, because they were not first recommended by the Board of Pardons and Paroles, per T.C.A. § 40-3504.

We shall summarize the pertinent facts, based upon undisputed testimony, stipulations and judicial notice.

On the evening of January 15, 1979, then Governor Blanton signed a large number of commutations. The three involved in this litigation had these things in common: all three were penitentiary prisoners who had apparently at one time been assigned to work duties at the Governor’s mansion; in each case their sentences were commuted to “time served”; and none of them had been recommended for a commutation by the Board of Pardons and Paroles. (All apparently soon knew of the then Governor’s action in their respective eases and they each desired the commutations. Furthermore, there is no indication that former Governor Blanton has ever desired to rescind any of the commutations.)

After the commutations were signed by Governor Blanton they were acknowledged by the signature of the Secretary of State. All of the commutations which were executed at that time were forwarded (the exact procedure does not appear) from the office of the Governor’s legal counsel (Judge Robert Lillard) to the office and person of Mr. Murrell Pitts, Director of the Records Division of the Department of Corrections, whose job it was to credit the sentences with the commutations and process the releases of those to be released. (It was he who would write the Warden and order the releases.) It appears that several of the commutations were processed and the convicts released immediately. It further appears that then Commissioner of Corrections C. Murray Henderson telephoned Mr. Pitts, apparently on the morning of January 17, and instructed him to “slow walk” the commutations involving the convicts who were assigned to work details at the Governor’s mansion. Apparently Mr. Pitts received the commutations on the morning of January 17,1979, prior to the telephone call from the Commissioner. (What motivated the Commissioner to issue his “slow walk” instruction does not appear, and the record before us would better lend itself to a decision of the issues involved if Commissioner Henderson’s motives were explained. This is true because at that time Governor Blanton was still in office, and the Commissioner would normally be expected to be carrying out the Governor’s wishes. However, in total context, we must logically and do assume that in this instance Governor Blanton had no knowledge of the Commissioner’s action.)

The attorney for at least one of these convicts (Mr. Yarbrough for McKenna) telephoned Mr. Pitts on January 17, urging the processing of that commutation. Mr. Pitts, however, did not process any more on January 17th, because of Commissioner Henderson’s telephoned instruction. At approximately 6:00 P.M. on January 17th Governor elect Lamar Alexander was administered the oath of office, three days before his scheduled inauguration. At approximately 8:00 P.M. that evening Mr. Pitts received a telephone call at his residence from Hon. William Koch, a Deputy Attorney General who was at that time acting as legal counsel to Governor Alexander, and Koch advised Pitts that he had contacted Commissioner Henderson and had been advised to transmit his (Koch’s) message to Mr. Pitts. The message was that Mr. Pitts was not to process any more commutations that were in his office or that were received subsequently from any other source (other than the new Governor). Koch advised Pitts that Corrections was not to permit any additional inmates to be processed out of the prisons due to the commutations, even though the commutations were at the respective prisons (which reflected an indifference to any further delivery of the commutations to the Warden or anyone else, and hinged the order upon only the fact of an actual prior release); and Mr. Pitts was further instructed that no records in Pitts’ possession were to be turned over to the office of the legal counsel for former Governor Blanton. General Koch represented to Mr. Pitts that he was speaking for Governor Alexander, and that he would be issued further instructions on the following day. Apparently at some later time the commutations involved in these cases were sent by Corrections to the office of Governor Alexander. It is not clear if the originals are lodged with the Secretary of State, although there was some testimony to that effect. There is also testimony that they were returned to Judge Thomas Hull, Governor Alexander’s legal counsel.

This record does not reflect Governor Alexander’s motive in the premises. Nor is there any evidence of illegality, fraud or improper motivation in the issuance by former Governor Blanton of the commutations. We decide these cases upon the record, giving, as we are bound to do, full faith and credit to former Governor Blanton’s official acts while he was Governor, in the absence of any showing of any illegality therein; but with complete confidence that Governor Alexander acted in good faith.

As we noted at the beginning, the State concedes that Governor Blanton had the power to issue the commutations, and defends solely upon the proposition that delivery was never legally accomplished.

Much of what has been addressed in the briefs is unnecessary to the decision of these cases. We resist the temptation to “restate the law of commutations”, because it is generally the better practice for appellate courts to confine decisions to the questions before us.

We accept the thesis of the State that delivery is necessary to the validity of a commutation if by delivery it is meant that it must clearly appear from his actions in the matter that the Governor who issued the commutation must intend that it become and be immediately effective and that the Governor never does or says anything inconsistent with, that intention. It would be a disservice to hold that ritualistic acts by subordinate officials were a necessary condition precedent to the validity of an intended act of pardon by the Chief Executive of the State. These commutations end with this language:

NOW, THEREFORE, I, Ray Blanton, Governor, by virtue of the power and authority in me vested, do hereby commute the said_from the offense of_to_and the sentence from _to time served but in no other way interfering with the judgment and sentence of said Court; and I further authorize and direct that the authority having the said_in custody, will act accordingly.
“IN TESTIMONY, WHEREOF, I have hereinto set my hand and caused the Great Seal of the State to be affixed at Nashville, Tennessee, on the 15th day of January 1979.
(si Rav Blanton
Governor
By the Governor:
(si Gentry Crowell
Secretary of State”

It is clear from these consolidated records that after Governor Blanton signed these commutations that his signature was attested by the Secretary of State, and that Governor Blanton’s agent in the matter (his legal counsel, Judge Robert Lillard) transmitted the commutations to the appropriate State official (Mr. Pitts) to carry them out. As a matter of fact, many of those issued at the same time were processed and the prisoners released. These three were not processed to a conclusion, not because of any lack of will or intention on the part of then Governor Blanton, or absence of his power and authority to grant them, but because Commissioner Henderson deliberately delayed them, at a time when Governor Blan-ton was still in office.

Argument is made that delivery of a commutation must be made to the warden before it is effective. We reject this rigid view, for both practical and legal reasons. Persons sentenced to the penitentiary in this State are, in practical effect, sentenced to the custody of the Department of Corrections. See T.C.A. §§ 41-101, 37-237, 41-201, 41-102, 41-326, etc. That department classifies them, moves them from facility to facility at will, and may even leave them in a county jail somewhere. See T.C.A. §§ 41-205, 44-1143. The Department of Corrections can and does take convicts from the custody of one warden and transfer them to the keeping of another as a regular practice. The time that every convict in the State must serve is calculated and kept in the office presently occupied by Mr. Pitts, known as Central Records. The various wardens are simply agents of the Department of Corrections, under the supervision of the Commissioner. It would be hyper-technical to the point of absurdity to hold that after the sentences of these convicts, as kept by Mr. Pitts for Corrections in Central Records, were changed to reflect that their sentences had been commuted to time served, (as it was Mr. Pitts’ duty to do when the Governor sent the commutations to him) that the prisoners had no right to immediate release only because the warden had not seen the commutations or because the prisoners had not received copies. As a matter of fact, the warden is a party to these three cases, and copies of the commutations are of record herein, so he now has in-court knowledge of former Governor Blanton’s actions. . If “delivery” to the warden had been held by us to be a necessity, he has now had delivery, per the records and stipulations of this lawsuit. While T.C.A. § 41-204 does in fact require each warden to keep a book on sentences pronounced as to each of the prisoners in his charge, it is clear from Mr. Pitts’ testimony that that information flows from Central Records and had he not been stopped he would have written the warden advising him of the changed sentences, and ordering the immediate release of these men.

The distinguished Attorney General took the position during oral argument that the present Governor, His Excellency, Lamar Alexander, could rescind the action of former Governor Blanton in the premises. This argument, to be valid, must presume that whatever “delivery” was required to finalize the commutations had not taken place. Certainly Governor Alexander could not rescind an action of the former Governor if it had already passed the point of recission by the Governor who took the action. We hold that the actions of former Governor Blanton in reducing the sentences in these cases to time served was a valid and binding act, made so by his signing the commutations, having that act attested to by the Secretary of State, and then having them delivered to the records divisions of the Department of Corrections for the purpose of processing. The actions and inac-tions of subordinate officials, acting independently of the Governor and contrary to his obvious wishes, cannot be held to negate these commutations.

We affirm the granting of the writ of habeas corpus to McKenna and Harris; and reverse the denial of the writ to Smith, remanding his case for the granting of the writ.

We wish to express our appreciation to Hon. John J. Hooker, Jr., Amicus Curiae, and his excellent counsel, Hon. Thomas Wardlaw Steele, for their work on behalf of the Court. It is their position, buttressed by a scholarly brief, that the power of the Governor to commute sentences is statutory only, and that it presently is bottomed solely upon the provisions of T.C.A. §§ 40-3501 and 40-3504. The Amicus candidly admits that his position is contrary to the recent holdings of our Supreme Court in Bowen v. State, Tenn., 488 S.W.2d 373 (1972), and Collins v. State, Tenn., 550 S.W.2d 643 (1977), and asks that we overrule those cases. Under Bowen and Collins, former Governor Blanton clearly had the power to commute these sentences, without any prior recommendation by the Board of Pardons and Paroles, contrary to the argument of the Amicus. We believe that it is preferable to say, as our Supreme Court has, that the Governor has the constitutional power to commute rather than to say that the only such existing power has been, in effect, given exclusively to the Board of Pardons and Paroles (with the Governor having only the power to in effect veto the Board’s recommendations).

Affirmed as to McKenna and Harris; reversed and remanded as to Smith.

O’BRIEN, J., and JERRY SCOTT, Special Judge, concur.

O’BRIEN, Judge,

concurring.

I fully concur with the lead opinion in these cases. I feel it essential to add, finding as we do, “the actions of former Governor Blanton in reducing the sentences in these cases to time served was a valid and binding act,” that neither he nor incoming Governor Alexander could rescind or revoke the commutations and conditional release of these prisoners by utilization of any procedure short of a due process hearing as set out in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1974); and Fleenor v. Hammond, 116 F.2d 982 (C.A.6 1941).


author: TATUM, Judge.

text:
    Harold ROE, Jr., Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    April 18, 1979.
    Certiorari Denied by Supreme Court July 2, 1979.

      Ted Q. Wilson and Charles W. Martin, Oneida, for appellant.
    William M. Leech, Jr., Atty. Gen.; Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Arzo Carson, Dist. Atty. Gen., William Paul Phillips, Asst. Dist. Atty. Gen., Huntsville, for appellee.
   TATUM, Judge.

OPINION

The appellant, Harold Roe, Jr., appeals from a judgment denying the probation of a penitentiary sentence of not less than one year nor more than one year upon his guilty plea to having carnal knowledge of a female 15 years of age. He is serving this sentence concurrently with a sentence of not less than two years nor more than five years for voluntary manslaughter. We must affirm the judgment of the trial court.

We regret that we are unable to reach the merits. The order denying probation was entered 7 September 1978 and the trial judge allowed the appellant 90 days in which to file his Bill of Exceptions; the time expired on 5 December 1978. The Bill of Exceptions was not filed in the trial court until 8 January 1979, more than 90 days from entry of the judgment from which he appealed.

The maximum time allowable under T.C.A. § 27-111 is 90 days “from the entry of the order or action of the court which occasioned the filing of said Bill of Exceptions.” The statute provides that in criminal cases, this court or the Supreme Court “upon application of the defendant or the state and for good cause shown” is empowered to extend the filing date past the 90 day period.

In Bryant v. State, 527 S.W.2d 742, 745 (Tenn.1975), the Supreme Court held that this court had the power to extend the time for filing the Bill of Exceptions on its own motion when “good cause” appears of record, saying,

As we view the Dailey [Daily v. State, 225 Tenn. 472, 470 S.W.2d 608] case and T.C.A. 27-111, the key to the filing of a late bill of exceptions is not the financial worth of the appealing party, but rather is the showing of “good cause” by the party seeking to file the bill of exceptions. “Good cause” essentially requires that the delay in filing the bill of exceptions be due to a cause beyond the control of the appealing party, which is the situation in this case.

The appellant has neither requested nor obtained an order extending the time for the filing of the Bill of Exceptions. The record does not indicate the reason for the delay in filing; no cause is shown for the delay. In the absence of “good cause shown” for the delay, we cannot consider the contents of the Bill of Exceptions.

The appellant did not assign error attacking the refusal of the trial judge to grant probation. His only assignment of error is that the court “erred in failing to set aside the guilty plea of the appellant” and in refusing to declare the age of consent statute (T.C.A. § 39-3706) to be unconstitutional. The Technical Record contains no pleading, order, or judgment indicating that the trial judge was requested to set aside the guilty plea.

The general rule is that no appeal lies from an uneoerced guilty plea, knowingly and voluntarily made. Ray v. State, 224 Tenn. 164, 451 S.W.2d 854 (1970); McInturff v. State, 207 Tenn. 102, 338 S.W.2d 561 (1960).

The appellant relies upon the case of Meloon v. Helgemoe, 564 F.2d 602 (1st Cir. 1977) for the proposition that former T.C.A. § 39-3706 is unconstitutional. In the Me-loon case, the first circuit held a gender based New Hampshire age of consent statute to be unconstitutional. This case was based largely on factual findings as developed on an evidentiary hearing. The Me-loon court held;

We want to take care to indicate the limited nature of our holding. We have found only one particular statutory rape law to be unconstitutional. We have not reflected on nor do we intend to question the constitutionality of the laws of other states. We express no opinion as to whether on a different record some other statute would pass constitutional scrutiny.

On the basis of the Meloon case, even if we found it to be binding authority, we could not say that the former T.C.A. § 39-3706 is unconstitutional. We have no record before us upon which we could base a finding of whether the classifications and category in the Tennessee statutes are not within the police power of the State. The former Tennessee statute is not facially unconstitutional.

The Technical Record reflects no error. There is no showing that the trial judge abused his discretion in denying a probated sentence.

The judgment of the Criminal Court is affirmed.

CORNELIUS, J., and JOHN TEMPLE-TON, Special Judge, concur.

      . This prosecution arose prior to the effective date of The Sexual Offense Law of 1977 (T.C.A. §§ 39-3701 through T.C.A. § 39-3708). See Chapter 937, Public Acts of 1978.


author: BARROW, Justice.

text:
    STATE OF WASHINGTON, Petitioner, v. Ralph WILLIAMS, Individually and Ralph Williams, Inc., Respondent.
    No. B-7661
    Supreme Court of Texas.
    Jan. 10, 1979.
    Rehearing Denied Feb. 7, 1979.
    Wynne & Jaffe, David R. Snodgrass, Dallas, for petitioner.
    Turner, Rodgers, Sailers, Jordan & Callo-way, Jerry N. Jordan, Dallas, for respondent.
   BARROW, Justice.

The State of Washington brought this suit in Dallas County against Ralph Williams and Ralph Williams, Inc. seeking to enforce a judgment rendered in Washington for civil penalties and attorney’s fees under the Washington Consumer Protection Act. The trial court granted Washington State’s motion for summary ' judgment. The court of civil appeals concluded that the Washington judgment is not final for the purpose of full faith and credit under the United States Constitution, reversed the trial court judgment and rendered judgment that Washington State take nothing by this suit. 566 S.W.2d 54. We reverse the judgment of the court of civil appeals and remand the cause to that court.

Washington State brought this suit in the Superior Court of King County, Washington seeking an injunction, civil penalties, costs and attorney’s fees relative to the injunctive cause of action, and to obtain orders requiring Williams to restore monies or property to consumers allegedly victimized by violations of the Consumer Protection Act. Judgment was rendered on December 9, 1974, following a nine-week trial before the court. This judgment is twenty-seven pages long and the decretal portions thereof consist essentially of the following lettered paragraphs set out below, the crucial one of which is “I”, copied verbatim:

A. Describes to whom the injunctive portions apply.
B. Details the injunctive relief.
C. Orders restoration of monies or property to consumers with further orders or judgments as the court deems necessary.
D. Permits consumers (not parties) to pursue other remedies.
E. Assesses costs including attorney’s fee of $389,258.20 against defendants.
F. Assesses civil penalties of $279,000 for violations committed by each defendant.
G. Assesses civil penalties for violations against Ralph Williams, Inc., and Ralph Williams’ Northwest Chrsyler-Plymouth, Inc. each for $10,250.
H. (Deleted from judgment prior to entry.)
“I. Jurisdiction is retained for the purpose of enabling either party to this Judgment and Decree to apply to the court at any time for the enforcement of compliance therewith, the punishment of violations thereof, or modification or clarification thereof.” (Emphasis added)
J. Dismisses proceeding in all other respects and enters decree under RCW 19.86.080.

The superior court judgment was appealed by Ralph Williams’ Northwest Chrysler-Plymouth, Inc., Ralph Williams, Inc., and Ralph Williams on all points and Washington State appealed on one cross-point. The Supreme Court of Washington affirmed the judgment regarding the appeal by Williams and reversed and remanded with instructions as to Washington State’s cross appeal. 87 Wash.2d 298, 553 P.2d 423 (1976). On November 8, 1976 the superior court amended the judgment pursuant to the opinion of the Washington Supreme Court to include an additional injunctive provision and to allow attorney’s fees for the appeal. No appeal was perfected from this amended trial court judgment.

The general rule is that a judgment rendered by a court of one state is, under the full faith and credit clause of the United States Constitution and the Act of Congress enacted pursuant thereto, entitled to recognition, force or effect, and full faith and credit in the court of another state, to the same extent as it has by law or usage in the courts of the state where the judgment was rendered. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905 (1910); Garman v. Reynolds, 284 S.W.2d 262 (Tex.Civ.App.—Fort Worth 1955, writ ref’d); 47 Am.Jur.2d Judgments § 1218; 34 Tex.Jur.2d Judgments § 336. It is well established, however, that full faith and credit is not required when a decree is subject to modification under the law of the rendering state. Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82 (1944); Sistare v. Sistare, supra; Hicks v. Hefner, 210 Kan. 79, 499 P.2d 1147 (1972); Cutler v. Cutler, 543 S.W.2d 1 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.).

The court of civil appeals held that by virtue of Paragraph “I” the Washington trial court retained jurisdiction to modify all of the dispositions contained in the judgment and, therefore, it was not a final judgment. Washington State asserts that the clear intent of Paragraph “I” is that it applies only to the injunctive provisions of the judgment and therefore does not affect its finality. See Stovall v. Banks, 77 U.S. (10 Wall.) 583, 19 L.Ed. 1036 (1870); City of Tyler v. St. Louis Southwestern Ry. Co. of Tex., 405 S.W.2d 330 (Tex.1966).

It is clear that the trial court intended that the judgment be a final judgment in all respects save the claims of consumers which were severed as permitted by Rule 54(b) of the Washington Civil Rules. The court expressly so provided in the opening paragraph of the judgment and decree:

“[T]hat there is no just reason for delay in entry of a final judgment as to all parties and issues in this action except those relating to procedures for, and final judgment of, restoration to all consumers •who may have been harmed as a result of defendants’ acts, unlawful practices and conduct, and the court having directed entry of a Judgment and Decree as contained herein to all other issues and parties; NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DE-GREED AS FOLLOWS: . .

Furthermore, it is clear from the opinion of the Washington Supreme Court that all parties as well as that court considered the judgment of the trial court as final. Nowhere in the brief filed by Williams in that court is there any contention that the judgment was not final. To the contrary, Williams even unsuccessfully sought relief from the judgment in the United States Supreme Court thereby asserting that all state remedies had been exhausted.

What then is the purpose and meaning of Paragraph “I” of the judgment, particularly the inclusion of the word “modification” therein? The court of civil appeals reasoned that the trial court desired to retain jurisdiction to modify the penalty sums so as to insure the effectiveness of the court’s orders regarding restitution to individual consumers. There is nothing in the record to suggest the trial court had such an intent. Furthermore, such a construction would nullify and render meaningless the trial court’s self-styled final judgment if that court retained jurisdiction to undo and change the entire judgment. There would have been no purpose in assessing the penalties and costs against Williams if the trial court retained jurisdiction to consider changing them at some time in the future, nor would there have been any purpose in an expensive appeal complaining in part of these penalties.

It is our opinion that when Paragraph “I” is considered in its full context, the word “modification” has reference only to the injunctive provisions of the decree. By Paragraph “I”, the trial court retained jurisdiction to: (1) enforce compliance; (2) punish violations; and (3) modify or clarify. The first two provisions refer to the post-judgment activities of enforcement and punishment which could only apply to the injunctive provisions. The third provision also applies to post-judgment activities of the injunctive provision when the judgment is read in its entirety. The judgment enjoins twenty-four separate acts and it is reasonable to anticipate that the injunctive language could require modification or clarification from time to time to insure carrying out the trial court’s intentions. By retaining jurisdiction to modify or clarify these injunctive provisions, the trial court did not affect the finality of the other provisions of the judgment. State v. Stubblefield, 36 Wash.2d 664, 220 P.2d 305 (1950). Such a construction of Paragraph “I” harmonizes rather than defeats the expressed intent of the trial court to render a final judgment. See State v. Starley, 413 S.W.2d 451 (Tex.Civ.App.—Corpus Christi 1967, no writ).

We conclude that the Washington judgment sought to be enforced in the District Court of Dallas County is a final judgment under the laws of Washington State and is therefore entitled to full faith and credit. The judgment of the court of civil appeals is reversed and the cause is remanded to that court for consideration of the other points of error raised by Williams.

SPEARS, J., not sitting.

      . Ralph Williams’ Northwest Chrysier-Plymouth, Inc. is not a party to this appeal.

      . Rule 54(b) of the Washington Civil Rules for Superior Courts provides in part:
      “When more than one claim for relief is presented in an action, . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination in the judgment, that there is no just reason for delay and upon an express direction for the entry of judgment.”


author: GREENHILL, Chief Justice.

text:
    Allen R. HOWZE et ux., Petitioners, v. SURETY CORPORATION OF AMERICA, Respondent.
    No. B-7641.
    Supreme Court of Texas.
    April 25, 1979.
    Rehearing Denied July 3, 1979

      Howard & McDowell, Thomas D. McDowell, Corpus Christi, for petitioners.
    Richard Cross, Houston, William L. Ehrle, Austin, for respondent.
   GREENHILL, Chief Justice.

Surety Corporation of America (“Surety”) originated this suit in Travis County seeking a declaratory judgment that it was not liable to Allen R. Howze and his wife (“Howze”) on a bond it had covering a mobile home dealer with which Howze had dealt. Howze counter-claimed for the face amount of the bond. The trial court entered a take-nothing judgment against Howze. The Court of Civil Appeals affirmed the trial court’s judgment holding: 1) that proper notice was not given to Surety; and 2) that Surety was only liable on its bond for violations of the Texas Mobile Homes Standards Act (“Act”). 564 S.W.2d 884 (1978). We reverse. Our holding is based upon the particular wording of the statute in question and its legislative history. As we interpret it, the statutory bond in question was intended to cover deceptive trade practices of mobile home dealers; and the bond was intended by the Legislature to cover particular judgments against such dealers rather than being a “general undertaking” bond. That being so, the surety was not entitled to notice of the suit against a mobile home dealer; and the surety was bound by the judgment against the dealer for its deceptive trade practices.

Howze purchased a mobile home from R. L. Greer who was doing business as Mobile Market Homes. As part of the down payment, Howze traded in an old mobile home. Greer agreed to assume all of Howze’s indebtedness on the traded-in mobile home.

Although Greer took possession of Howze’s mobile home, he did not assume his indebtedness as promised; and the lien holder made demands upon Howze to pay. Greer, in the meantime, sold the mobile home traded in by Howze. Howze then filed suit against Greer in Nueces County alleging a deceptive trade practice in that he falsely represented that he would assume the indebtedness of Howze. Furthermore, Greer failed to deliver, as he had promised to do, the title on the new mobile home which Howze had just purchased. No violation of the Texas Mobile Homes Standards Act was alleged.

The trial court found that Mr. and Mrs. Howze were consumers as defined under the Deceptive Trade Practices Act and that they were entitled, under the Deceptive Trade Practices Act, to three times their actual damages of $13,542.13, plus attorney’s fees. The District Court of Nueces County entered a default judgment against Greer in the amount of $42,126.00. No appeal was taken from that judgment, and that judgment is final.

At the time of Greer’s misrepresentation, he was bonded pursuant to the requirements of Article 5221f, the Texas Mobile Homes Standards Act. Greer was the principal on the bond, and Surety Corporation of America was the surety. Surety was not made a party to the lawsuit against Greer, and no notice was given to Surety prior to the rendering of the default judgment against Greer.

Five days after the default judgment, Howze obtained a writ of execution. It was returned unsatisfied. Howze then made a demand on Surety for the face amount of the Bond, $25,000.00. Surety refused to pay and filed this declaratory judgment suit in Travis County. The basic questions which this Court must answer are: 1) was Surety entitled to notice of the proceeding against Greer; 2) what effect did the default judgment against Greer have upon Howze’s counterclaim against Surety; and 3) was Greer’s misrepresentation within the scope of the bond’s coverage.

A. Was Notice to Surety Required?

The Court of Civil Appeals held that the default judgment obtained by Howze against Greer was not binding upon Surety because it had no notice of the suit. Its opinion is based upon the distinction between “particular judgment bonds” and “general undertaking bonds” as delineated in United States Fidelity & Guaranty Co. v. Paulk, 15 S.W.2d 100 (Tex.Civ.App.—Texarkana 1929, no writ) and Browne v. French, 22 S.W. 581 (Tex.Civ.App.1893, no writ).

Both cases set out the general rule in Texas that when a surety agrees to be liable for a particular judgment, then no notice need be given. However, when a surety contracts to be generally liable for all the undertakings of the principal, the surety must be given notice and an opportunity to defend the case before it is bound by the judgment. The Court of Civil Appeals found that this was a general undertaking bond. We disagree.

The bond in the present case was not a general undertaking bond. It was an agreement defined by the Texas Mobile Homes Standards Act to be liable for a judgment against the principal. The Act, and even the bond itself, states:

[the principal and surety are] firmly bound unto THE STATE OF TEXAS in the sum of $25,000.00 dollars payable at Austin, Travis County, Texas for the use by a consumer, the State, or any political subdivision thereof who establishes liability against a dealer for damages, penalties, or expenses .

The Act and bond both state specifically that the surety is not liable until the State, political subdivision or consumer establishes liability, It is implicit that one establishes liability by obtaining a judgment in a court of competent jurisdiction. A consumer can only make a claim upon the surety when he has obtained a judgment against the principal, or when he sues them together in the same suit. These bonds are, therefore, judgment bonds; and the surety is bound despite the fact that it was neither notified nor joined as a party.

It is interesting that soon after this suit had arisen, the Legislature amended the Act to provide for notice to be given by the Texas Department of Labor and Standards to the surety of any claim against the bond. It is obvious that the Legislature, having created by statute a particular judgment bond which generally requires no notice, wished to provide for notice to the sureties and did so by amendment. Cases arising in the future will no doubt be governed by this statutory provision.

B. The Evidentiary Value of the Judgment

Intermingled with the problem of the required notice is the question of what effect the default judgment against Greer has upon Howze’s counterclaim against Surety. Surety claims that at best the default judgment is prima facie proof only of its own rendition. See, e. g., RESTATEMENT OF SECURITY § 139(3) (1941) and Monmouth Lumber Co. v. Indemnity Ins. Co., 21 N.J. 439, 122 A.2d 604 (1956). Howze claims that the default judgment should be conclusive proof or at least create a rebuttable presumption of Surety’s liability. See, e. g., Sauer v. Detroit Fidelity and Surety Co., 237 Mich. 697, 213 N.W. 98, 51 A.L.R. 1485 (1927); 72 C.J.S. Principal and Surety § 261 at 706; and First Mobile Home Corp. v. Little, 298 So.2d 676 (Miss.1974). There are other positions not necessary to list here. See Annotation, 59 A.L. R.2d 752.

Since this bond is a statutory bond, this Court does not need to announce a general rule applicable to all cases where a creditor obtains a default judgment against the principal and attempts to introduce the judgment against the surety. The terms of this Act (and subsequently of the bond) condition the liability of a mobile home surety upon the establishment of liability against the principal; i. e., upon a judgment. Therefore, under the provisions of this Act, a judgment which establishes liability against the principal resulting from a cause of action connected with the sale or lease of a mobile home is binding upon the surety, absent proof of fraud or collusion. There was none here.

C. The Extent of the Bond Coverage

Surety claims that it is only liable on its bond for violation of the Texas Mobile Homes Standards Act, and cannot be held liable for a violation by its principal of only the Deceptive Trade Practices Act. The liability of a surety on its bond is normally determined by the language of the bond itself. Harrison v. Barngrover, 118 S.W.2d 415 (Tex.Civ.App.—Beaumont 1938, writ ref’d). In the present case the bond in pertinent part states:
THAT WE, Mobile Market. Homes . . ■ as
(Dealer)
PRINCIPAL, and Surety Cornoration of America (Surety) as SURETY, duly authorized and qualified to do business as a surety company in this State, are firmly bound unto THE STATE OF TEXAS in the sum of 1625.000.00 dollars payable at Austin, Travis County, Texas, for the use by a consumer, the State, or any political subdivision thereof who establishes liability against a dealer for damages, penalties, or expenses, including reasonable attorney’s fees, resulting from a cause of action connected with the sale or lease of a mobile home, and for the payment of which, well and truly to be made, we bind ourselves, . . . jointly and severally, firmly by these presents.
NOW, THEREFORE, the CONDITION OF THIS OBLIGATION is such that the PRINCIPAL shall faithfully discharge all obligations, duties and responsibilities under Sections 4, 5, 6, 7, and paragraph (b) of Section 8, and all other applicable sections of Article 5221f, VACS, and all amendments thereto, and all applicable rules and regulations of the Commissioner of the Texas Department of Labor and Standards adopted' to carry out the provisions of Article 5221f, as amended.

The first paragraph of the bond is taken from the Act itself. The second paragraph was recommended by the Texas Department of Labor and Standards.

We construe the bond as a whole and the intent of the Legislature in requiring it. It is a statutory bond; and as such, the Texas Mobile Homes Standards Act is made part of the bond and is controlling regardless of the bond’s language. Globe Indemnity Co. v. Barnes, 288 S.W. 121 (Tex.Com.App.1926, judgmt adopted).

The Texas Mobile Homes Standards Act was first enacted in 1969. It was entitled: Uniform Standards Code for Mobile Homes. It was a limited act, passed to protect the consumer public by providing minimum standards for the manufacture and sale of mobile homes. It was amended in 1971 and in 1973. The 1971 amendments created the Performance Certification Board and dealt primarily with the inspection of mobile homes; they also changed the Act’s name to the Mobile Homes Standards Act. Acts 1971, 62nd Legislature, ch. 896, p. 2765. The 1973 amendment added the sections dealing with “tie-down” standards, and provisions for inspections, fees, and penalties. Acts 1973, 63rd Legislature, ch. 606, p. 1673.

The bonding provisions which are pertinent to this case were added in 1975. Acts 1975, 64th Legislature, ch. 674, p. 2036. In general the provisions require that each manufacturer, dealer and salesperson be bonded so as to insure compliance with the intent of the Act. The bonding provisions were added as part of Senate Bill 397 which was authored by Senator Doggett and sponsored. in the House by Representative Uher. This bill added for the first time a declaration of purpose to the Act which states:

. to improve the general welfare and safety of the citizens of this state. The legislature finds that mobile homes have become a primary housing resource of many of the citizens of the state; that a growing awareness exists that many consumers are injured by unprincipled and dishonest members of the mobile home industry, that current warranties are deficient, that existing means of remedying these injustices are inadequate and do not provide a viable means for protecting the consumer, and that it is the responsibility of the state to provide for the protection of its citizens through the imposition of certain regulations on the mobile home industry. In recognition of these findings, the legislature deems it necessary to expand various regulatory powers to deal with these problems. The legislature finds this to be the most economical and efficient means of dealing with this problem and serving the public interest. Accordingly, this Act shall be liberally construed and applied to promote its underlying policies and purposes.

As stated above, section 13(a) requires bonds to be filed to insure compliance with the intent of this Act. Furthermore, section 13(f) states quite broadly that the bonds are to cover any deceptive act or misrepresentation “connected with the sale or lease of a mobile home.”

Read together these provisions provide a guide as to how the Act should be interpreted:

1. The bonds should insure compliance with the intent of the Act.
2. The bonds cover any cause of action connected with the sale or lease of a mobile home.
3. One of the stated purposes of the Act is to protect consumers who are injured by unprincipled and dishonest members of mobile home industry.
4. The Act is to be liberally construed to promote its stated purposes.

In the present case the conclusion that coverage existed is inescapable. Howze was injured by an irresponsible mobile home dealer who, in connection with his purchase of a new mobile home, agreed to assume his liability for the “traded-in” mobile home, did not do so, and sold the traded-in mobile home to third parties. The dealer has since become unaccountable for his deceptive acts. This is precisely the situation'which the Act was meant to cover, i. e., protecting the consumer from an irresponsible dealer. The language of the statute and its legislative history plainly indicate the intent that the bond was meant to cover deceptive acts such as the one perpetrated upon Howze.

It is clear to us that the Legislature not only was aware of, but intended to make these bonding provisions cover more than just a breach of warranty. The consumer remedies available were not helpful when the defendant-dealer was either insolvent or unaccountable. This was the situation that the Legislature sought to cure by requiring bonds. Our conclusion is that these provisions are intended to cover deceptive acts and misrepresentations connected with the sale or lease of a mobile home, as the Act says, when these amounted to violations of the Texas Deceptive Trade Practices Act.

We, therefore, reverse the judgments of the trial court and Court of Civil Appeals and render judgment that Surety is liable to Howze for the face amount of the bond.

ON MOTION FOR REHEARING

The motion for rehearing of Allen R. Howze is granted. Howze specifically pleaded for pre-judgment interest in his counterclaim against Surety. This Court has held that pre-judgment interest is recoverable as a matter of right where an ascertainable sum of money is determined to have been due and payable at a date certain prior to judgment. Republic National Bank of Dallas v. Northwest National Bank of Fort Worth, 578 S.W.2d 109 (Tex.1979); and Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80, 95-96 (Tex.1976).

Howze had a judgment against the mobile home dealer far in excess of the amount of Surety’s bond. He made a demand to Surety for payment of the face amount of the bond on July 28, 1976. An ascertainable amount was thus due and owing to Howze from July 28, 1976.

The judgment of this Court is reformed to include interest at a rate of six per cent from that date until June 29, 1977.

The motion for rehearing of Surety Corporation of America is overruled.

      . Article 5221f. All references are to Vernon’s Texas Revised Civil Statutes Annotated. All emphases are added unless otherwise noted.

      . Texas Business and Commercial Code Annotated art. 17.46(b)12.

      .Texas Business and Commercial Code Annotated art. 17.45(4).

      . Article 5221f(13)(f), formerly Article 5221f(13)(c).

      . Article 5221f(13)(g). See Acts 1977, 65th Legislature, ch. 139, p. 288.

      . Surety’s reliance upon RESTATEMENT OF SECURITY § 139(3) is misplaced. As one can see from the following comment, the rule expressed in section 139(3) has no application when by contract (or in this case by statute) the surety has bound itself to answer for any judgment obtained against the principal:
      The rules stated in Subsections (2) and (3) are not concerned with a situation in which the surety by his contract has bound himself in specific terms to answer for any judgment which may be obtained by the creditor against the principal. In such a case proof of the judgment is by the terms of the surety’s obligation all that the creditor needs to show as a condition of the surety’s liability.
      RESTATEMENT OF SECURITY § 139(3), Comment d.

      . Article 5221f(13)(a).

      . Senate Bill 397 contained the 1975 amendments to the Act. References by name to “Senate Bill 397” or the “1975 amendments” are used interchangeably.

      .Article 5221f(2).

      . Article 5221f(13)(f), formerly Article 5221f(13)(c). In the current statute the wording is to the effect that the bonds cover any act “connected with the sale or lease-purchase of a mobile home.”


author: McGEE, Justice.

text:
    Bob BULLOCK, Comptroller of Public Accounts of the State of Texas et al., Petitioner, v. NATIONAL BANCSHARES CORPORATION of Texas et al., Respondent.
    No. B-7896.
    Supreme Court of Texas.
    June 20, 1979.
    Rehearing Denied July 25, 1979.

      Mark White, Atty. Gen., Gilbert J. Ber-nal, Jr., and Martha E. Smiley, Asst. Attys. Gen., Austin, for petitioner.
    Fulbright & Jaworski, C. W. Wellen, Thomas J. Brorby, R. Richard Coston, Alan E. Sherman, Vinson & Elkins, Marvin K. Collie, Harry M. Reasoner, Thomas P. Mar-inis, Jr., Ann Lents, Liddell, Sapp, Zivley & Brown, W. Robert Brown, Willis Witt, Houston, for respondent.
   McGEE, Justice.

This is a suit by certain taxpayers against the comptroller of public accounts to recover in excess of $2,000,000.00 in franchise taxes paid under protest. The trial court denied relief, but the court of civil appeals reversed the lower court judgment, rendering judgment that the taxpayers recover all sums paid. 569 S.W.2d 584. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

The basic facts of this case are undisputed and may be briefly summarized. Taxpayers are eight national bank holding companies, which have derived income from national bank shares, and one ordinary business corporation, which has derived income from a national bank certificate of deposit. In April of 1974 the comptroller of public accounts issued a ruling which provided that dividends and interest paid on or after January 1, 1973 by a national bank located in this state are includable in the corporate payee’s gross receipts for the purpose of assessing a franchise tax. The taxpayers paid the franchise tax under protest and subsequently brought this suit to recover sums paid.

The central issue presented is whether the comptroller correctly ruled that interest and dividends derived from national banks located in this state are includable in the corporate payee’s Texas gross receipts for the purpose of assessing a franchise tax. The taxpayers contend, and the court of civil appeals has held, that an act of the Texas legislature, 1971 Tex.Gen.Laws, ch. 292, art. 7 § 1, at 1206, codified as a footnote in Tex.Tax.-Gen.Ann. art. 20.02 (Vernon Supp.1978-1979) (hereinafter article 7, section 1), precludes such inclusion. We cannot agree. It is our opinion that the legislature merely intended to preclude the additional taxation of banks and did not intend to preclude a franchise tax upon other, unmentioned corporate entities.

Unless otherwise provided by law, a franchise tax is imposed upon all domestic and foreign corporations doing business in Texas. See Tex.Tax.-Gen.Ann. arts. 12.01 to 12.22 (Vernon 1969 & Supp.1978-1979). The granting of the privilege to transact business in this state confers economic benefits, including the opportunity to realize gross income and the right to invoke the protection of local law. The Texas franchise tax is a tax on the value of this privilege. General Dynamics Corp. v. Bullock, 547 S.W.2d 255, 257-58 (Tex.1976); Texaco, Inc. v. Calvert, 526 S.W.2d 630, 633 (Tex.Civ.App.—Austin 1975, writ ref’d n.r. e.); see Ford Motor Co. v. Beauchamp, 308 U.S. 331, 334-35, 60 S.Ct. 273, 84 L.Ed. 304 (1939) (holding Texas franchise tax constitutional).

The formula employed to compute a corporation’s franchise tax is designed to achieve a tax commensurate with the value of the privilege granted. General Dynamics Corp. v. Bullock, supra at 257; United North & South Development Co. v. Heath, 78 S.W.2d 650, 652 (Tex.Civ.App.—Austin 1934, writ ref’d). This is accomplished by dividing the gross receipts from business done in Texas by the gross receipts from the entire business. The resulting allocation percentage is multiplied by the total taxable capital and, in turn, the product of this calculation (capital taxable by Texas) is miltiplied by the current tax rate. The final product of this calculation is the sum of the corporation’s franchise tax liability from business done in Texas. Tex.Tax.Gen.Ann. arts 12.01 & 12.02 (Vernon 1969 & Supp.1978-1979); see Humble Oil & Refining Co. v. Calvert, 414 S.W.2d 172, 173 n. 1 (Tex.1967); Texaco, Inc. v. Calvert, supra at 632; Note, 5 Hous.L.Rev. 132, 133 (1967).

To determine what receipts from intangibles should be allocated to business done in this state, Texas employs the location of payor test. Humble Oil & Refining Co. v. Calvert, supra at 175. Under this test, the domicile of the debtor or payor in the case of interest or dividends is disposi-tive and not the domicile of the taxpaying corporate payee. If dividends or interest are received from a Texas corporation, they are Texas receipts. Conversely, if received from a foreign corporation, they are not Texas receipts. Id. at 175; Note, 5 Hous.L. Rev. 134 (1967).

Historically, the comptroller did not include dividends or interest income received from a national bank located in Texas in the corporate payee’s Texas gross receipts. See Silco, Inc. v. Calvert, 482 S.W.2d 56, 59 (Tex.Civ.App.—Austin 1972, writ ref’d n.r. e.). This was because national banks, as opposed to state-chartered banks, were considered foreign corporations. Thus, under the location of payor test, income received from state-chartered banks was includable in Texas gross receipts, but income received from national banks was not equally includable. Id. at 58-59.

In April of 1974 the comptroller issued ruling 80-0.18 which is set forth in full in the margin. This ruling essentially provides that effective January 1, 1973 income received from national banks located in Texas is taxable on the same basis as income received from state-chartered banks. The comptroller based this change in taxation policy on Pub.L. 91-156, 83 Stat. 434 (codified at 12 U.S.C. § 548 (Supp.1979)) (hereinafter Pub.L. 91-156), which became effective January 1, 1973. That congressional enactment provided that for the purposes of any state tax law a national bank shall be treated as a bank organized and existing under the laws of the state within which its principal office is located. Applying the location of payor test, the comptroller concluded that dividends and interest received from national banks located in Texas constituted Texas gross receipts in the hands of the corporate payee.

The taxpayers in this case contend that the comptroller is precluded by an act of the Texas legislature from including income received from national banks located in this state in their Texas gross receipts. Article 7, section 1 provides:

The passage of Public Law 91-156 by the Congress of the United States shall not operate to impose or permit the imposition of any additional tax or taxes upon the institutions affected thereby unless:
(a) The tax or taxes were being imposed prior to January 1, 1971, or
(b) Such institutions are specifically designated as being subject to such additional tax or taxes other than the limited sales and use tax by an Act of the Legislature passed subsequent to the effective date of Public Law 91-156.

Id. (Emphasis added). The taxpayers reason that corporate payees of national bank dividends and interest — specifically, national bank holding companies and corporate holders of national bank certificates of deposit — are “institutions affected” by Pub.L. 91-156.

Before we undertake á determination of what institutions are affected by Pub.L. 91-156 within the meaning of article 7, section 1, we note that the present taxpayers’ contention is tantamount to a claim for exemption from the franchise tax. Statutory exemptions from taxation are subject to strict construction since they are the antithesis of equality and uniformity and because they place a greater burden on other taxpaying businesses and individuals. Hilltop Village, Inc. v. Kerrville Independent School District, 426 S.W.2d 943, 948 (Tex.1968); accord, Air Force Village Foundation v. Northside Independent School District, 561 S.W.2d 905, 909 (Tex.Civ.App.—El Paso 1978, writ ref’d n.r.e.). An exemption cannot be raised by implication, but must affirmatively appear, and all doubts are resolved in favor of taxing authority and against the claimant. Simply stated, the burden of proof is on the claimant to clearly show that it comes within the statutory exemption. Aransas Hospital, Inc. v. Aransas Pass Independent School District, 521 S.W.2d 685, 689 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.); Space Precision Machining Co. v. State, 503 S.W.2d 289, 291 (Tex.Civ.App.—Austin 1973, writ ref’d n.r.e.).

We now turn to an examination of article 7, section 1. This statute states that there shall be no additional taxation of “institutions affected” by Pub.L. 91-156. Since an exemption from taxation must affirmatively appear and since there is no affirmative indication in article 7, section 1 of what corporations the term “institutions” was intended to encompass, we must refer to Pub.L. 91-156. The only “institutions” mentioned or referred to in that statute are “banks.”

Although we adhere to the strict construction rules aforementioned, an examination of the history of Pub.L. 91-156 is helpful to an understanding of its intended effect. Behind the passage of this statute is the long-settled rule that the several states cannot tax national banks except as permitted by Congress. This limitation on the states’ taxation power is founded on the theory that national banks are chartered by the United States government and that the federal power is supreme over its instru-mentalities. First Agricultural National Bank v. State Tax Commission, 392 U.S. 339, 340, 88 S.Ct. 2173, 20 L.Ed.2d 1138 (1968); see Mitchie on Banks and Banking 348-49 n. 6 (1971). Historically, this meant that state-chartered banks were subject to some types of state taxation that national banks were exempt from. A good example of this disparity in tax treatment is provided by Grayson County State Bank v. Calvert, 357 S.W.2d 160 (Tex.Civ.App.—Austin 1962, writ ref’d n.r.e.). In that case it was held that a state franchise tax could constitutionally be levied against a state - bank although the same tax could not be levied against a national bank located in this state. The court reasoned that national and state banks were not within the same class; rather, a national bank could transact business within state boundaries without the state’s permission and without paying for the privilege. Id. at 162. A concurring justice noted this “inequitable condition” and called upon the Texas legislature to rectify the tax disadvantages under which state banks were forced to compete with national banks. Id. at 163. One year later the Texas legislature responded with an amendment to article 342-908 of the Texas Revised Civil Statutes. That article presently provides that state-chartered banks are subject only to such taxes that lawfully can be imposed by Texas on national banks located in the state. In ef-feet, this means that both national and state banks are equally exempt from many forms of state taxation in Texas.

Although Texas achieved tax parity among state and national banks with this amendment, many other states had not totally or effectively remedied the disadvantageous tax position of their state-chartered banks. The United States Congress' accordingly reacted to this nationwide problem in 1969 with the passage of Pub.L. 91-156. The legislative history of that enactment reveals that the intended effect was to remove the prohibition against states “to levy modern types of taxes on national banks” to the same extent and in the same manner that they presently have the. right to tax state-chartered banks. S.Rep.No. 91-530, 91st Cong., 1st Sess., reprinted in [1969] U. S. Code Cong. & Admin. News, pp. 1599, 1599, 1594-98. The Congress concluded that there was no longer any justification for continuing to grant national banks immunities from state taxation that were not enjoyed by state-chartered banks.

Thus, the only institutions affected by Pub.L. 91-156 are “banks.” Not one of the taxpayers in this case, however, can be characterized as a “bank.” A national bank holding company is a company which has control over a bank, but it is not chartered or statutorily empowered to transact banking business. 12 U.S.C.A. § 1841(a)(1) (1969 & Supp.1979); P. Heller, Handbook of Federal Bank Holding Company Law 1-52 (1976). A corporate holder of a bank certificate of deposit is clearly not a bank, but merely a creditor of the bank. Southview Corp. v. Kleberg First National Bank, 512 S.W.2d 817, 819 (Tex.Civ.App.—Corpus Christi 1974, no writ); 10 Am.Jur.2d Banks § 455 (1963).

This strict, but literal, construction of the pertinent statutes leads to only one reasonable conclusion. By passage of article 7, section 1, our legislature sought to address the congressional effort to remove federal barriers to equal tax treatment of state and national banks. Texas, unlike some other states, had previously equalized taxation among state and national banks and the legislature doubtlessly intended to maintain this parity by precluding any additional taxation of those institutions. Stated differently, there is no reason for us to presume that the legislature sought to exempt national bank holding companies and corporate holders of national bank certificates of deposit from a franchise tax computed on income received from national banks located in this state.

Moreover, an exemption from taxation cannot be extended to a taxpayer merely because it is related to or connected with a tax-exempt corporation. In Silco, Inc. v. Calvert, 482 S.W.2d 56 (Tex.Civ.App.—Austin 1972, writ ref’d n. r. e.), the court was faced with a contention similar to the one advanced by the national bank holding companies in this case. The taxpayer, Silco, Inc., was a holding company comprised of four tax-exempt corporations, including one state bank and one state savings and loan. The comptroller assessed a franchise tax against Silco which was computed on the interest and dividends which Silco had received from its four subsidiary corporations. Silco filed suit to recover the tax paid, contending that its corporate components were exempt from franchise taxation and that logic and equity dictated that such extensions should be extended to Silco itself. The trial court held for the Comptroller and the court of civil appeals affirmed. The court stated that Silco was connected with its tax-exempt components through ownership, but held that the parent corporation and its components were separate legal entities. Silco could not bring itself within the exemption statute by the mere fact that its capital was invested in the stock or securities of a corporation exempted from the tax. Id. at 58. Likewise, we do not believe that national bank holding companies are entitled to an exemption merely because the legislature has continued the franchise tax exemption for the national banks.

We therefore hold that the comptroller correctly ruled that, under the location of payor rule, interest and dividends derived from national banks located in this state are includable in the corporate payee’s Texas gross receipts for the purpose of assessing a franchise tax. To hold otherwise would mean that the Texas legislature intended to continue the unequal treatment between recipients of income from state banks and recipients of income from national banks. This we cannot accept. Rather, we believe that the legislature merely intended to preserve the status quo in reference to taxation of banks, both national and state, until it chose to impose additional taxation at a later time.

The judgment of the court of civil appeals is accordingly reversed and the judgment of the trial court is affirmed.

      . The plaintiffs and respondents in this suit are National Bancshares Corp. of Texas, Cullen/Frost Bankers, Inc., Southwest Bancshares, Inc., Texas American Bancshares, Inc., on its own behalf and as successor in interest to Southern National Corp., First City Bancorpo-ration of Texas, Inc., First United Bancorporation, Inc., Mercantile Texas Corporation, as successor in interest to Federal Capital Corporation, Fort Sam Houston Bankshares, Inc. (by intervention), and Reidy International, Inc. (by intervention).

      . GROSS RECEIPTS IN TEXAS GROSS RECEIPTS OF ENTIRE BUSINESS CAPITAL TAXABLE TAX _ FRANCHISE BY RATE TAX TEXAS ALLOCATION PERCENTAGE ENTIRE X TAXABLE = CAPITAL

      . “General: The ‘location of payor’ test is used in determining whether dividends and interest are attributable as receipts from business done in Texas under Article 12.-02(l)(b). In accordance therewith, dividends and interest paid by a domestic corporation are includable in gross receipts from business done in Texas, whereas dividends and interest paid by a foreign corporation do not constitute Texas gross receipts under the statute.
      “State Banks: Dividends and interest paid by a bank organized under the Banking Code of Texas are includable in gross receipts from business done in Texas pursuant to Article 12.02(l)(b).
      “National Banks: Prior to January 1, 1973, national banks were considered to be foreign corporations for franchise tax purposes and, consequently, dividends and interest paid by a national bank located in Texas were not attributable as Texas gross receipts. Public Law 9.1-156, amended Section 5219 of the Revised Statutes to provide, effective January 1, 1973, that for the purposes of any tax law enacted under the authority of any state a national bank shall be treated as a bank organized and existing under the laws of the state within which its principal office is located. Accordingly, dividends and interest paid on and after January 1, 1973 by a national bank whose principal office is located within Texas are includable in gross receipts from business done in Texas pursuant to Article 12.02(l)(b).”

      . Pub.L. 91-156 provides:
      For the purpose of any tax law enacted under authority of the United States or any State, a national bank shall be treated as a bank organized and existing under the laws of the State or other jurisdiction within which its principal office is located.

        Id.

      . Professor Sands summarizes the rule thusly:
      As a general rule, grants of tax exemptions are given a strict interpretation against the assertions of the taxpayer and in favor of the taxing power. As explained in court opinions: “Exemptions from taxation claimed under legislative acts should be rigidly construed and established beyond a reasonable doubt. It is only where a deliberate purpose of the legislature to grant an exemption is expressed in clear and unequivocal terms that a claim to an exemption can be maintained.” “Taxation is the rule and exemption therefrom the exception; and the claimant of such an exemption must show his right thereto by evidence which leaves the question free from doubt. The claimant for an exemption must show that his demand is within the letter as well as the spirit of the law.”
      3 C. Sands, Statutes and Statutory Construction § 66.09, at 207 (1972 & Supp.1979).

      . Tex.Rev.Civ.Stat.Ann. art. 342-908 (Vernon 1973) provides:

        State and national banks are hereby declared to be within the same class under the Constitution and laws of this state. It is not the intention of the Legislature to discriminate between state banks, national banks, and private banks. To the extent that the State of Texas has power to legislate with reference to national banks, all laws of this state shall apply alike to state banks, private banks, and national banks domiciled in this state; and state banks and private banks shall be subject to only such taxes heretofore or hereafter imposed by the state, or any political subdivision thereof, as could lawfully be imposed upon such state banks or private banks were they operating as national banks.

      . See Note 8, infra.

      . S.Rep.No. 91-530, 91st Cong. 1st Sess.; H.Rep.No. 91-728, 91st Cong., 1st Sess., reprinted in [1969] U. S. Code Cong. & Admin. News, p. 1595. The Senate Committee on Banking and Currency reported:
      Some States have exempted State banks from liability for any States taxes which national banks are required to pay. There, the State may or may not have attempted to achieve equality between banks and other businesses by taxing banks at a higher rate on the allowable taxes than other businesses pay. This type of device is at best uncertain.
      Regardless of the method employed by the particular State in an attempt to achieve equality, there is always a question of whether it has actually been achieved, be it equality between State and National banks, or equality between banks and other businesses.
      There may have at one time been justification for giving national banks privileges and immunities which were denied State banks, under the theory that national banks are peculiarly an instrumentality of the Federal Government, and, as such, hold a unique and distinct position from that of other institutions. Without specifically addressing the question of whether national banks remain, in substance, such a Federal instrumentality, the committee is agreed that there is no longer any justification for Congress continuing to grant national banks immunities from State taxation which are not afforded State banks.

        Id. at 1595 (emphasis added); see Lake County National Bank v. Kosydar, 305 N.E.2d 799, 802 (Ohio 1973); Mitchie on Banks and Banking 350 n. 11 (1971 & Supp.1979) (purpose of Pub.L. 91-156 is to remove immunity from state taxation).

      .A “bank” may be defined as an “institution organized under the laws of the United States the District of Columbia, [or] any territory of the United States . . which (1) accepts deposits that the depositor has a legal right to withdraw on demand, and (2) engages in the business of making commercial loans.” 12 U.S.C.A. § 1841 (c) (1969 & Supp.1979) (emphasis added).