text:
    Chesley A. HENDERSON, Plaintiff in Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    May 4, 1976.
    Certiorari Denied by Supreme Court July 26, 1976.

      James L. Hicks, Memphis, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Robert Gru-now, Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Richard S. McNeese, Asst. Dist. Atty. Gen., Memphis, for defendant in error.
   DAUGHTREY, Judge.

OPINION

The defendant, Chesley A. Henderson was arrested on July of 1974 on a charge of driving while intoxicated (DWI).

Trial was set in the City Court of Memphis for January 16, 1975. On that date, after the defendant appeared and pleaded not guilty, the City Attorney requested and was granted dismissal of the charge without prejudice. Thereafter, the Shelby County Grand Jury indicted the defendant for DWI and in a separate indictment, of a prior conviction of the same offense. Trial on these two indictments was scheduled in the Criminal Court of Shelby County. The defendant entered a plea in abatement and moved for dismissal of the charges pending in criminal court on the ground that the City Court of Memphis was the court of original jurisdiction and these charges could only be brought against him in that court. The motion was denied; the defendant was convicted of both DWI and second offense DWI and was sentenced to six months in the Shelby County penal farm and assessed a $500.00 fine. He appeals from the conviction asserting seven assignments of error:

1. The Criminal Court of Shelby County lacked jurisdiction to determine this case.

2. The trial court erred in failing to charge the jury upon request that the presumption of innocence goes to the good character of the defendant.

3. The trial court erred in reading to the jury as part of its charge portions of the Supreme Court opinion in Crosswy v. State, 157 Tenn. 363, 8 S.W.2d 486 (1928).

4. The trial court erred in instructing the jury, after the evidence was in and prior to dismissing it overnight, that jury members should “blot the case out of their minds entirely.”

5. The evidence preponderates against the verdict and, being circumstantial, fails to exclude every other reasonable hypothesis than defendant’s guilt.

6. The penalty assessed constitutes cruel and unusual punishment and evidences bias, caprice, and passion on the part of the jury.

7. The system of plea bargaining in DWI cases in Shelby County establishes “vindictiveness” on the part of the prosecutor toward defendants who maintain their innocence and choose to go to trial, in violation of the due process and equal protection provision of the Tennessee and United States constitutions.

We find no merit in defendant’s assignments of error and affirm the verdict of the trial court.

A careful review of the record reveals that the following evidence was presented at trial. On the day in question two Memphis city policemen were assigned to direct traffic on Milton Avenue near the Stadium because of the rock concert being held that afternoon. One officer testified that the first time he saw the defendant was about 3:00 P.M. when the defendant pulled out of the gate of the Binswanger Glass Company in a small company truck, made a sharp right turn and pulled away accelerating rapidly, “burning his tires.” The defendant was next seen by this officer about 20 minutes later when he had returned to the plant, stopped his truck at the edge of the roadway and was walking across the street to open the gate. This officer stated that at this time the defendant was “staggering.” Both officers then went up to the truck and when defendant came back across the street they approached him. The first officer described him as having a strong odor of intoxicant, with very slurred and slow speech and expressed his opinion, based upon the large number of intoxicated people he had observed in his years as an officer, that the defendant was intoxicated.

The testimony of the second officer was the same in all material aspects except that he stated that he had first seen the defendant about 4:00 P.M. when he left the parking lot and he had actually observed the defendant drive down the street on his return to the plant. The officers admitted that they had not observed anything out of the ordinary in the defendant’s driving other than his rapid acceleration on leaving the plant. No tests of any kind for intoxication were administered by these officers.

Officer J. L. O’Daniels of the Shelby County Sheriff’s Department, Metro DWI Squad, arrived at 4:41 P.M. to pick up the defendant. He testified that when he saw the defendant walking toward his van he was staggering and walking with the assistance of the officers. This officer stated that the defendant’s speech was slurred, he smelled of intoxicants, and he exhibited “all the classic signs of being under an intoxicant.”

The defendant, an employee of Binswan-ger Glass Company, testified that he went to work on Saturday, July 27, 1974 at 8:00 A.M. He worked from 8:00 A.M. to 12:00 P.M. on repairing a truck. At noon he and a co-worker left the plant and walked to a nearby store where each purchased one can of beer and the co-worker purchased a sandwich. They brought their purchases back to the plant where they were consumed. In the afternoon the defendant and his co-worker worked on adjacent vehicles in the yard of the plant. At 3:00 P.M., their work completed, the defendant left to test drive a vehicle and his co-worker left in his own car. This testimony was corroborated by the testimony of the co-worker.

The defendant further testified that he drove three blocks to his home where he had one beer and a sandwich and then drove back to the plant. On the way back to the plant, he stopped and bought one can of beer from which he had taken one swallow prior to reaching the plant gate. On reaching the plant gate the defendant discovered that a parked vehicle had blocked his ingress. He left his truck and walked to the vehicle to see if it was unlocked and could be moved. Discovering that it was locked, the defendant called to one of the police officers directing traffic and asked if he could help to get the vehicle out of the way. When the officers came over to where his truck was parked he was placed under arrest.

I. JURISDICTION

In his first assignment of error the defendant argues that once the City Court of Memphis had gained jurisdiction over these charges any further proceedings could be had only in that court. The State counters that despite the language of Chapter 288 of the Private Acts of 1972 giving the Memphis City Court concurrent jurisdiction with the criminal and general sessions courts of Shelby County in misdemeanor cases arising under state statutes, the Memphis City Court was not in fact, in this case, exercising jurisdiction concurrent with that of the criminal court.

The problem with the defendant’s argument is that while the city court had jurisdiction to proceed under the warrant, in order for the city court to have had jurisdiction to try this defendant, the defendant would have had to have executed a written waiver of his right to be charged only by indictment or presentment and either waived his right to a jury trial or demanded a trial by jury. State v. Lusky, 196 Tenn. 326, 267 S.W.2d 106 (1954); Tenn. Priv. Acts, 1972, ch. 288. If after pleading not guilty, the defendant had refused to sign a waiver and thereby elected only to be charged by presentment or indictment, the city court would have had no jurisdiction to put him to trial, and its only recourse would have been to bind him over to the grand jury.

The technical record which we have before us contains no indication of what, if anything, transpired in the City Court of Memphis. Waiver may not be presumed from a silent record.

We are therefore unable to find that the City Court of Memphis ever had jurisdiction to try this defendant and hold that jurisdiction was properly in the Criminal Court of Shelby County. The assignment is overruled.

II. JURY INSTRUCTIONS

Defense counsel properly submitted to the court a request that the judge charge:

The court charges the jury, that one accused of a crime comes into court presumed to be innocent, and such presumption likewise goes to the defendant’s good character, if that question is not put in issue.

The defendant had offered no evidence as to his character, either for truth and veracity or sobriety.

The request was denied by the court and the defendant assigns error. We have carefully reviewed the authorities cited and find persuasive the reasoning in Durham v. State, 128 Tenn. 636, 163 S.W. 447 (1913), where the court held that “(t)he presumption of a good character may not be a basis of inference for the purpose of adding weight to the presumption of innocence or its logical resultant,” i. e., reasonable doubt. Id. at 642, 163 S.W. at 449. In support of its conclusion the Durham court quoted from Addison v. People, 193 Ill. 405, 419, 62 N.E. 235, 239 (1901) as follows:

Defendant did not choose to put his reputation in issue or prove that it was good, but sought by the instruction all the benefit of an affirmative finding of such fact without proof or an opportunity to combat the claim or prove the negative. If the instruction were the law, a defendant need never prove good reputation, but could take the benefit of the proof which . he could not make.

Accordingly, we find that the trial court committed no error in denying the request and assignment number two is overruled.

The defendant further assigns as error that portion of the charge given to the jury which states:

If one will use an intoxicant, he must remember that organized society speaking through the legislative department of this State has inhibited him from driving while under the influence of intoxicating liquor any automobile, motorcar, taxicab, or motorcycle in the State of Tennessee and especially prohibits the driving of an automobile by any person on the public highways of Tennessee while such person is under the influence of an intoxicant. Such person has no right to speculate as to the extent of the potency of the intoxicant he has taken or as to his powers of resistance. If he would avoid the penalty which the law imposes for violation of its command, common prudence would suggest that he refrain from experimenting as to his ability to overcome the influence of the intoxicant he has used. The statute must be obeyed.

This language is a direct quotation from the text of the opinion in Crosswy v. State, 157 Tenn. 363, 371, 8 S.W.2d 486 (1928).

The defendant asserts that this instruction to the jury (a) constitutes a comment by the judge on the evidence and a “summing up,” both of which are prohibited by the Tennessee constitution, (b) is contrary to the law and charge that every witness is presumed to be telling the truth, (c) applies a stricter standard of credibility to a defendant in a DWI case than in other cases and in effect negates the presumption of innocence, (d) allows the court to single out and give undue influence to certain portions of the case and constitutes improper comment to the jury and how they should weigh certain evidence, and (e) virtually charges the jury that defendant is guilty if he has had even one drink.

In response the State contends that the thrust of the charge is merely to advise the jury that they should ignore certain legal irrelevancies, i. e., speculation by the defendant as to the potency of the consumed intoxicant or the extent of his own capacity for consumption. The State argues that the charge as given does not prevent the defendant from testifying in his own behalf on the question of his guilt or innocence, as for example, by giving his opinion as to his relative sobriety. Technically this interpretation may be correct, but the difficulty is that the charge in its overall effect is not completely clear. It thus presents the possibility of misunderstanding by the jury.

In his brief on this point, the defendant complains generally of the practice of reading portions of opinions from other cases as part of the instruction to the jury. There is apparently no Tennessee law on this issue, and the cases in other jurisdictions which discuss this practice are not numerous. The consensus seems to be that while it is within the trial judge’s discretion to read a legally correct statement from another court opinion, the better practice is to use instructions specifically designed and developed for that purpose. As the Colorado Supreme Court put it:

The practice of giving excerpts from the court opinions as instructions to juries frequently gives rise to difficulties. Opinions are written with the facts and issues of the particular case under consideration in mind. The language used is ordinarily with reference to and should be construed in the light of the issues and the facts of the particular case which are then already determined. Inaccuracy or lack of clarity in a statement of the law applied to determined facts and to past events is subject to explanation and clarification. In an opinion, the matter of primary importance is that the court shall have had in mind, considered, and applied the correct rule of law. That it shall be stated clearly and accurately in the opinion is desirable, but since future action is not dependent on the accuracy of the statement it is of secondary importance. Instructions to juries, on the contrary, are drawn with the object of stating a general rule of law to guide them in the process of arriving at the true facts from the evidence in the particular case on trial, which facts, when the instructions are given, are then undetermined. Bearing in mind these distinctions, it is apparent that language used in an opinion pertinent to the issues and the determined facts in that case may be a proper expression of the law as related to those facts and issues, and pertinent to a decision of the case, and yet may not be sufficiently general, clear, or accurate to serve as a satisfactory or full instruction to a jury. The practice of quoting a portion of a judicial opinion in one case as a general statement of the law to guide the jury in determining the facts in another, if indulged in at all, should be with care and discrimination with the object sought to be attained by the instruction clearly in mind. Cohen v. People, 106 Colo. 245, 103 P.2d 479, 479-80 (1940) (emphasis supplied).

And in Knight v. State, 215 Miss. 251, 60 So.2d 638, 640 (1952) the Mississippi Supreme Court said:

We must again warn against quoting in instructions the reasoning or discussive portions of judicial opinion. The error of (this) instruction is found in its comment upon the testimony and in its aspect as argumentative.

While we do not think the quotation at issue here can be labelled “incorrect” as to its content, we question the propriety of reading it to the jury. A close review of the Crosswy opinion indicates that the language here quoted from it is dictum and, taken in context, was merely supportive of the Crosswy’s court’s conclusion that the evidence as a whole did not preponderate against the jury’s verdict of guilt. The statement may not be wrong when viewed as a principle of appellate review, but it is not altogether appropriate as a legal standard by which a jury should decide the defendant’s guilt or innocence. And as a blanket instruction, we find it even less appealing. While the defendant in the case before us did testify that in his opinion he was not intoxicated on the afternoon in question, he offered no opinion or “speculation” as to the relative toxicity of the alcohol consumed nor as to his own powers of resistance to the amount of alcohol which he admitted having consumed on this date. Thus the charge is subject to the additional criticism that it was not supported by the facts in this record.

However, although we feel the instruction was probably unwise and should be abandoned, we think any error was harmless under T.C.A. § 27-117 because of the overwhelming evidence of the defendant’s guilt.

The defendant’s fourth assignment of error is unsupported by citation to authority and is, we feel, without merit. The defendant has totally failed to apprise us of what, if any, prejudice resulted or might have resulted from the court’s suggestion to the jury as they were about to be discharged for the day that they “[w]ipe this (case) from you mind tonight . . . ” and return in the morning to receive the court’s charge. We therefore overrule the assignments of error based on the court’s instructions to the jury.

III. THE EVIDENCE

With regard to the assignment asserting evidentiary insufficiency, a guilty verdict by the jury, approved by the judge accredits the testimony of the State’s witnesses and resolves all conflicts in testimony in favor of the theory of the State. State v. Grace, 493 S.W.2d 474 (Tenn.1973); Hawkins v. State, 527 S.W.2d 157 (Tenn.Cr.App.1975). On appeal the defendant has the burden of showing that the evidence preponderates in favor of his innocence. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). A review of the evidence set out above convinces us that he has failed to sustain this burden. And contrary to the position of defense counsel, this is not a circumstantial evidence case. The assignment is overruled.

IV. THE SENTENCE

As to assignment of error number six, we are at a loss to explain the frequency with which this Court is asked to find that sentences which are well within the limits prescribed by statute for the offense charged constitute cruel and unusual punishment or evidence bias, caprice, and passion on the part of the jury. Absent a more substantial allegation, the law in the state of Tennessee is clearly to the contrary. Akers v. U. S., 280 F.2d 198 (6th Cir.) cert. denied, 364 U.S. 924, 81 S.Ct. 289, 5 L.Ed.2d 262 (1960); Howard v. State, 506 S.W.2d 951 (Tenn.Cr.App.1973); French v. State, 489 S.W.2d 57 (Tenn.Cr.App.1972); Bailey v. State, 479 S.W.2d 829 (Tenn.Cr.App.1972); Yearwood v. State, 2 Tenn.Cr.App. 552, 455 S.W.2d 612 (1970). The assignment is overruled.

The defendant’s final assignment of error asserts that it is the practice of members of the staff of the Shelby County Prosecutor’s office to offer substantially lower than maximum jail sentences and fines to DWI defendants as an incentive to a guilty plea and, conversely, to “penalize” those defendants who maintain their innocence and elect to go to trial by requesting that the jury assess the maximum penalty allowed by law. The defendant claims that this practice evidences a pattern of “invidious”, “insidious” “vindictiveness” on the part of the prosecutor in violation of his due process and equal protection rights under the United States and Tennessee constitutions.

First, we think that the evidence adduced by the defendant on the hearing for a motion for a new trial falls far short of establishing such a pattern or practice. Second, the United States Supreme Court in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) has stated that:

. we cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the state and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary.

We find no merit in this assignment and it is overruled.

The judgment of the trial court is affirmed.

WALKER, P. J., and GALBREATH, J., concur.

      . The American Bar Association’s Standards Relating to Trial By Jury, Section 4.6(a), call for the use of “accurate, impartial, and understandable pattern jury instructions” as a beginning point in the development of the charge in any given individual criminal case. In the Commentary to this section, the Committee points out that “the language of decisions and statutes may represent correct and unimpeachable statements of the law, but the phraseology may be far removed from the juror’s comprehension,” citing Parnell, Uniform Jury Instructions, 32 Wis.B.Bull. 58 (1959). A set of pattern instructions for use in Tennessee criminal cases is currently being drafted under the auspices of the Tennessee Judicial Conference Committee on Pattern Jury Instructions, chaired by Chancellor John D. Templeton. The criminal courts subcommittee, headed by Judge Joe D. Duncan of this Court, is expected to have a final draft ready for publication by mid-1977.

      . The instruction in Knight had been requested by the defendant and refused by the trial judge. The court held that the trial judge’s refusal was not error. 60 So.2d at 640.

      . The passage from Crosswy which is here at issue reads in its entirety as follows:
      If one will use an intoxicant, he must remember that organized society, speaking through the legislative department of this State, has inhibited him from driving while under the influence of intoxicating liquor any automobile, motorcar, taxicab, or motorcycle in the State of Tennessee, and especially prohibits the driving of an automobile by any person on the public highways of Tennessee, while such driver is under the influence of an intoxicant. Such person has no right to speculate as to the extent of the potency of the intoxicant he has taken, or as to his powers of resistance. If he would avoid the penalty, which the law imposes for violation of its command, common prudence would suggest that he refrain from experimenting as to his ability to overcome the influence of the intoxicant he has used. The statute must be obeyed; and this Court will not, after a fair and impartial trial in the lower Court, permit a defendant found guilty of its violation, to escape punishment, because of a diversity of opinion entertained by those who were called to testify as to the extent of the influence of the intoxicant used by defendant. Nor will this Court when a defendant confesses that he has been drinking bootleg whiskey while driving an automobile over the public highways of Tennessee, be moved to speculate as to how far the whiskey so consumed has operated to deprive such person of his sense of discretion. To say the least of it, the opinion of such person, as to whether he was or was not drunk, will not be by this Court held to afford evidence sufficient to overturn the verdict of the jury that has been approved by the trial Judge, even though supported by similar opinions expressed by other witnesses examined.
      It is apparent that the portion of Crosswy included in the charge is thus taken out of context when invoked in the trial court.

      . In the bill of exceptions on the motion for a new trial, the court indicates that the charge has been widely used in Memphis for many years.


source: Caselaw Access Project

author: DUNCAN, Judge.

license: Public Domain

text:
    Clayton YOUNG, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    May 10, 1976.
    Certiorari Denied by Supreme Court July 26, 1976.

      C. Douglas Thoresen, Nashville, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Thomas H. Shriver, Dist. Atty. Gen., Edward M. Yarbrough, Asst. Dist. Atty. Gen., Nashville, for defendant-in-error.
   OPINION

DUNCAN, Judge.

The petitioner, Clayton Young, has appealed from a judgment of the Davidson County Criminal Court dismissing his petition for a writ of Habeas Corpus.

On January 8, 1968, the petitioner was convicted in the White County Criminal Court for assault with intent to commit murder in the first degree, receiving a penitentiary sentence of not less than 3 years nor more than 10 years but was placed on probation. His probation was revoked on May 11, 1971, and he was committed to the penitentiary to serve his sentence. On May 11, 1972, he was granted a parole by the Tennessee Board of Pardons and Paroles.

On September 4, 1973, the petitioner was arrested by a White County Officer for being drunk and was placed in jail. A violation report was submitted, charging him with violating the terms of his parole. On September 17, 1973, Young executed a form, waiving his preliminary probable cause hearing. On January 18, 1974, the Tennessee Board of Pardons and Paroles held a final hearing, with the result that the petitioner’s parole was revoked.

The present proceeding was not commenced until May 8,1975, at which time the instant petition was filed, wherein the petitioner complains about the procedures used in revoking his parole. The petitioner offered no explanation as to the reason for the almost 16 month delay between the revocation of his parole and the commencement of the present action.

The record does show that in the interim, the petitioner filed a petition for a writ of habeas corpus in the United States District Court. This petition was dismissed by that Court on October 4, 1974, and will be referred to again later in this opinion. Clayton Young v. James H. Rose, Warden, No. 74-312 NA-CV (M.D.Tenn.1974). Also, we find from the records that on January 28, 1975, approximately one year after his parole had been revoked, the petitioner was again recommended for parole, was granted a furlough, but returned from furlough in a drunken condition, and his new recommendation for parole was rescinded by the Board on March 27, 1975.

Thus, it would appear that it was only after his unsuccessful efforts in Federal Court, and the rescinding of his new recommendation for parole, that he decided to make complaint in the state courts regarding the procedures used in 1974 to revoke his parole.

In this appeal, the petitioner makes several assignments of error, generally contending that the trial court erred in not finding that he was denied due process of law in the procedures used in the revocation of his parole.

He first argues that he was coerced into signing a waiver of his right to a probable cause hearing.

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), provides that a parolee, charged with violating the terms of his parole, is entitled to a hearing “in the nature of a ‘preliminary hearing’ to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.” T.C.A. § 40-3618(b) provides, in substance, for the same thing, as follows:

“Upon the arrest of a parolee pursuant to the above amended sections, unless waived in writing, a preliminary hearing shall be conducted to determine whether probable cause exists to believe that the parolee has violated the conditions of his parole in an important respect.”

In this cause, the petitioner executed a waiver of the probable cause inquiry, which waiver was filed in evidence in the present hearing. The petitioner insists that he was coerced into signing this waiver, but offers no proof of any substance as to the manner of such alleged coercion. At one point in his testimony he testified: “I signed it in order to get back before this parole board here . . . ” The trial judge found that the petitioner had not carried his burden of proof to show that he was coerced into signing the waiver. The evidence does not preponderate against this finding and we are bound by it. Turner v. State, 1 Tenn.Cr.App. 582, 447 S.W.2d 876 (1969).

The petitioner’s first assignment of error is overruled.

Next, the petitioner complains that he was denied a prompt parole revocation hearing. We find this contention to be without merit.

The petitioner was brought into custody in September, 1973, for his alleged violations, and his final hearing was held approximately four months later, on January 18, 1974. The reason for this time lapse is not disclosed in the record. Morrissey v. Brewer, supra, says that the “revocation hearing must be tendered within a reasonable time after the parolee is taken into custody.” In the Morrissey case, a time lapse of two months was held not to be unreasonable. The petitioner has failed to show that any prejudice has resulted to him by reason of the time lapse involved.

In the petitioner’s third, fourth and fifth assignments of error, he contends that he was deprived of his right to confront and cross-examine witnesses at the parole revocation hearing; that public drunkenness convictions used against him at the hearing were convictions obtained without the benefit of counsel; and that he was denied a fair hearing before the Board, denied counsel at the hearing, and was deprived of an opportunity to be heard.

In Morrissey v. Brewer, supra, the Court said:

“There must also be an opportunity for a hearing, if it is desired by the parolee, prior to the final decision on revocation by the parole authority. This hearing must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation.”

In enumerating the minimum requirements of due process in a parole revocation hearing, the Morrissey court stated that they included:

“(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.”

The Morrissey court then went on to say:

“We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.”

At the revocation hearing, some type of record was introduced to show that the petitioner had been convicted of public drunkenness on three occasions. The petitioner maintains that he did not have counsel at those trials and that it was improper for the Parole Board to consider these convictions. He admitted in his testimony before the Board that one of the convictions was accurate, but denied that he had been convicted on the other two occasions.

A transcript of the proceedings had at the parole revocation hearing was filed in evidence in the instant case. That transcript shows that Rule 4 of the conditions of the petitioner’s parole was that he would “not use intoxicants of any kind to excess.” The petitioner testified at that hearing and admitted that he had been using intoxicants in violation of Rule 4 while on parole, stating that he had a drinking problem and drank to relieve the “tension.”

From the petitioner’s testimony at the revocation hearing, as well as at this evi-dentiary hearing, the record leaves no doubt that he was in violation of one of the rules of his parole by using intoxicants to an excess while on parole; thus, it is immaterial whether he was validly convicted in a court for being “drunk.”

Since the petitioner admitted his parole violation at his revocation hearing, then he is in no position to complain. In the Morrissey case, the Court recognized a difference in the necessary procedures to be followed where the parolee admitted his violations, by saying:

“If it is determined that petitioners admitted parole violations to the Parole Board, as respondents contend, and if those violations are found to be reasonable grounds for revoking parole under state standards, that would end the matter.”

Thus, the petitioner’s right to confront and cross-examine witnesses would have added nothing to the revocation proceedings. Further, the transcript of his revocation hearing refutes his allegation that he was denied an opportunity to be heard. This transcript shows that the Parole Board extended to him a fair, dignified, courteous, and sympathetic hearing. He was given full opportunity to speak and to present his explanations. His mother was allowed to speak, and even her statements showed that the petitioner had been using intoxicants to an excess. At one point, his mother stated “He’s a good person when he’s not drunk,” and “I’d love for him to stay home if he could stay sober.”

As to the petitioner’s contention that he did not have counsel at his revocation hearing, we note that in the Morrissey case, the Court said:

“We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.”

In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Court held that a state is not under a constitutional duty to provide counsel for indigents in all probation or parole revocation cases. The Court said that “the decision as to the need for counsel must be made on a case by case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system.”

Under the facts and circumstances in the present case, we do not find that the Parole Board abused its sound discretion in denying counsel to the petitioner.

Furthermore, in his prior petition in Federal Court, mentioned at the outset of this opinion, the petitioner raised the issue that he was denied counsel at his parole revocation hearing. Clayton Young v. James H. Rose, Warden, supra. The district judge found no merit to this complaint and said in his opinion: “In the determination of this court, the due process requirements outlined in Gagnon v. Scarpelli, supra, were satisfied by the Board of Pardons and Paroles in this case.”

So, in contending that he was denied counsel at his parole revocation hearing, the petitioner is again attempting to relitigate this question which was previously determined adverse to him by a court of competent jurisdiction. This he may not do. T.C.A. §§ 40-3811 and 40-3812; Myers v. State, 3 Tenn.Cr.App. 414, 462 S.W.2d 265 (1970).

We overrule these assignments of error.

Likewise, we find no merit to the petitioner’s complaint that he is having to serve an extended penitentiary sentence which has no rational relationship to the offenses for which his parole was revoked. If this contention had merit, then many of the rules that a parolee is required to follow would have no vitality and would serve no purpose in attempting to restore one to good citizenship. Certainly, a condition that one not excessively imbibe in intoxicants is a reasonable restriction. In some cases, like the one here, such a condition is an absolute necessity. It is obvious that the State has repeatedly worked with the petitioner in an effort to rehabilitate him. Apparently, his drinking led him to commit his major offense, and the State’s efforts to rehabilitate him, first on probation, then on parole, has been negated by his repeated acts of drinking. Under this record, the Parole Board had no alternative but to revoke his parole. The petitioner, upon revocation of his parole, suffers imprisonment under a sentence, not for the matters that may have caused the revocation of his parole, but for the crime of assault with intent to commit first degree murder. The validity of his sentence thus is to be measured by the crime for which it was imposed and not by the acts of misbehavior that induced the Parole Board to revoke his parole.

His last complaint to the effect that he should have credit on his sentence for the time he spent on probation is not tenable. By Tennessee law, where an individual’s suspended sentence is revoked, his sentence commences to run from the date of revocation.

T.C.A. § 40-2906 provides in part, as follows:

“The trial judge shall possess the power, at any time within the maximum time which was directed and ordered by the court for such suspension, after proceeding as mentioned in § 40-2907, to revoke and annul such suspension, and in such cases the original judgment so rendered by the trial judge shall be in full force and effect from the date of the revocation of such suspension, and shall be executed accordingly; . . .” (emphasis added).

Under T.C.A. § 40-2907, covering the procedure to be followed in revoking a suspended sentence, it is stated:

. .If the trial judge should find that the defendant has violated the conditions of his probation and suspension, the trial judge shall have the right by order duly entered upon the minutes of his court, to revoke the probation and suspension of sentence and cause the defendant to commence the execution of the judgment as originally entered, . . ” (emphasis added).

Obviously, a person does not serve a prison sentence while on probation or parole any more than he does while free on bail. In both instances, there are certain restrictions generally on the person’s movements, but the person’s condition, as the Court said in Morrissey v. Brewer, supra, is “very different from that of confinement in a prison.”

We think these statutory provisions set forth above answer this last question posed, and we hold that a prisoner is not entitled to credit on his sentence for time spent on probation.

For the last two propositions discussed in this opinion, the petitioner cites in his brief the case of Hall v. Bostic, 391 F.Supp. 1297 (W.D.N.C.1974). We note this case was reversed on December 16, 1975. Billy Ray Hall v. O. M. Bostic, 529 F.2d 990 (4th Cir. 1975). Thus, it can serve as no authority for the propositions advanced.

We find no merit in any of the complaints raised and the petitioner’s assignments of error are all overruled. We affirm the judgment of the trial court.

O’BRIEN and GALBREATH, JJ., concur.


author: DAUGHTREY, Judge.

text:
    Waymon GREER, also known as Raymond Greer, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    May 10, 1976.
    Certiorari Denied by Supreme Court July 26, 1976.

      John K. Kyle, Asst. Public Defender, Nashville, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Thomas H. Shri-ver, Dist. Atty. Gen., Edward M. Yar-brough, Asst. Dist. Atty. Gen., Nashville, for defendant-in-error.
   OPINION

DAUGHTREY, Judge.

The defendant, Waymon Greer, also known as Raymond Greer, was convicted in the Davidson County Criminal Court of burglary first degree and rape. The jury assessed punishments of five to ten years incarceration on the burglary conviction, and twenty years incarceration on the rape conviction, which sentences were ordered by the trial judge to be served consecutively.

On appeal the defendant presents two issues for our determination: (1) the sufficiency of the evidence to support the verdict, and (2) the failure of the trial judge to order the sentences to run concurrently. After a careful review of the record, we find no merit in either of these contentions and accordingly we affirm both convictions.

The evidence at trial was that the defendant had been the victim’s next door neighbor for some 20 or more years. The victim at the time of the offense was 90 years old, paralyzed by a stroke, and confined to a wheelchair. Her mental state was described as alert, and her ability to recognize and identify the defendant was unimpeached at the trial. On the evening of June 18, 1974 sometime before dark, she was put to bed by the woman caretaker who came to the victim’s home several times a day to feed and otherwise care for her. This witness testified that she left the victim in bed, with all the outside doors locked, and the light in the room next to the victim’s bedroom turned on and shining into the bedroom. She returned at 7:00 A.M. the next morning to find the victim lying face down, immobilized on the bedroom floor. The room was in disarray, and the bed and the victim’s nightgown were covered with blood. The victim’s radio, television, and clock had been unplugged, and according to police testimony, the cords wrapped around them in a manner suggesting imminent transportation. The electric clock had stopped at 9:50. Investigation showed that a lock had been forced off the outside of a rear door, through which entry presumably had been gained.

The caretaker asked the victim what had happened and was immediately told, “Raymond broke in on me . . . he come in on me last night.” The victim was suffering abdominal pain and bleeding, and was transported by ambulance to the hospital. There she told her niece that she had been raped by the defendant. Medical examination revealed several external cuts, as well as a tear on the lower vaginal wall and another near the cervix. Two medical doctors testified that this genital trauma was consistent with a sexual assault.

The victim testified at trial, positively identifying the defendant as her assailant. She related that she had gone to sleep and awoke to find him in her room. Asked whether the defendant “actually ha(d) intercourse with you,” the victim replied in the affirmative, testifying that he had raped her twice, once on the bed and again on the floor. She said that she thought it was dark outside at the time.

To rebut this evidence, the defendant took the stand in his own behalf, and presented an alibi defense. He testified that he was at home the entire evening, spending the night in bed with the woman with whom he was living at the time. The defendant’s cohabitant then testified, corroborating his alibi. A second witness, the defendant’s grandmother, owned the house in which the defendant lived. She testified she was awakened in the night by a noise next door, and called to the defendant about it. However, she did not testify to seeing the defendant at any time during the night.

The defendant’s evidentiary attack is focused on two points. First, the defendant insists that the evidence generally fails to support the verdict, and specifically fails to establish penetration, a necessary element of the crime of rape under T.C.A. § 39-3701. Given the testimony of the victim, the objective medical evidence, and the expert testimony of the physicians, we find this contention wholly without merit.

Secondly, the defendant complains that the evidence fails to establish that the breaking and entering was accomplished in the nighttime, and also for this reason assigns as error the trial court’s failure to direct a verdict of not guilty to the charge of first degree burglary.

T.C.A. § 39-901 specifies that the offense must be done “by night” in order to constitute burglary in the first degree, making nighttime entry an essential element of the crime. Ledger v. State, 199 Tenn. 155, 285 S.W.2d 130 (1955). Whether or not this element has been established beyond a reasonable doubt is a question of fact to be determined by the jury. Once the factual issue has been decided by the jury in the State’s favor, it then becomes the defendant’s burden on appeal to establish the contrary by a preponderance of the evidence. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). We think the evidence here preponderates against the defendant, and, furthermore, that the trial court was not in error in refusing to direct a verdict and in allowing the evidence on this question to go to the jury. See, Hill v. State, 4 Tenn.Cr.App. 325, 337, 470 S.W.2d 853 (1971), citing Ridley v. Spence, 61 Tenn.App. 571, 456 S.W.2d 846 (1970), and construing T.C.A. § 40-2529. We therefore find no ground for reversal on this assignment.

In his brief the defendant next assigns as error the consecutive sentences ordered by the trial judge, arguing initially that the indictment is worded so as to make rape a necessary element of the offense of burglary, thus precluding separate convictions carrying individual sentences. The indictment charges in the first count that the defendant:

. heretofore, to wit, on the_ day of June, 1974, and prior to the return of this indictment, in the County and State aforesaid, unlawfully, feloniously, forcibly and violently, did break and enter, in the nighttime, the dwelling house of another, to wit: one [victim’s name] with the unlawful and felonious intent then and there and therein to commit a felony, to wit: Rape, and did then and there unlawfully, feloniously and violently, make an assault upon the body of [the victim], a female, and her the said [victim], then and there unlawfully, feloni-ously, violently, and against her will, did ravish and carnally know, against the peace and dignity of the State of Tennessee.

The second count of the indictment charges that the defendant:

. unlawfully, feloniously, and violently did make an assault upon the body of [the same victim], a female, and her the said [victim] then and there unlawfully, feloniously, violently, and against her will, did ravish and carnally know, against the peace and dignity of the State of Tennessee.

Because the second count adequately charges the defendant with rape, the first count is not susceptible to attack on the ground of duplicity, and no objection was entered by the defendant prior to trial on the ground of multiplicity. We think, therefore, that the language in the first count which on its face charges the defendant with rape can be considered mere surplusage, and we fail to find any prejudice to the defendant arising from it. See also T.C.A. § 39-907.

The defendant also complains of the consecutive punishments inflicted on the ground that only one transaction involving one criminal intent has been charged and proven, with the result that only one punishment is legally appropriate, citing Patmore v. State, 152 Tenn. 281, 277 S.W. 892 (1925). But we think this case is controlled by State v. Black, 524 S.W.2d 913 (Tenn.1975), in which the Tennessee Supreme Court in effect rejected the so-called “same transaction” test in determining the identity or separability of multiple offenses charged in the same indictment or joined at the same trial. In Black the court reaffirmed its holding in Duchac v. State, 505 S.W.2d 237 (Tenn.1973) and adopted the United States Supreme Court’s rationale in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under the standards laid down in those cases, there were two separate offenses charged and proven under the facts in the case before us, susceptible to two punishments which the trial court could, in its discretion, order to be served consecutively. Wooten v. State, 477 S.W.2d 767 (Tenn.Cr.App.1971).

The Black court was reluctant to adopt an inflexible test for determining the existence of separate offenses, saying:

We do not find the formulation of the various “tests” into catch words, such as “same transaction” or “same evidence” to be particularly helpful. As previously stated, each case requires close and careful analysis of the offenses involved, the statutory definitions of the crimes, the legislative intent and the particular facts and circumstances. 524 S.W.2d at 919.

The court then went on to extract certain factors from Blockburger and Duchac which it deemed relevant to a correct determination of this issue: (1) whether the episode or transaction constitutes a violation of two distinct statutory provisions; (2) whether either of the offenses is a necessarily included offense of the other; (3) whether each of the offenses requires proof of a different element; and (4) whether each requires proof of an additional fact which the other does not. 524 S.W.2d at 919-20. A distillation of these factors produces essentially the “same evidence” standard. Id. at 925 (Henry, J., dissenting).

Applied to the case before us, these factors plainly indicate the existence of separate offenses. Burglary in the first degree (T.C.A. § 39-901) and rape (T.C.A. § 39-3701) are covered by distinct statutory provisions; neither is an included offense of the other (despite the rather clumsy drafting of the first count of the indictment in this case, which we have found to result in nonprejudicial surplusage); the two offenses involve proof of different elements; and each requires proof of additional facts not necessary to establish the other.

Only one matter gives us trouble in reaching the conclusion we reach here under Black, and that is the possible controlling effect of this Court’s decision in Walton v. State, 1 Tenn.Cr.App. 668, 448 S.W.2d 690 (1969). In Walton the defendant was charged and convicted of both burglary and assault with intent to commit rape. The “intended” felony charged in the burglary count was rape.

The Walton court held that both convictions could not stand because they constituted “one single continuing criminal act, inspired by the same criminal intent essential to both, and are but one offense.” Id. at 696. The court distinguished Walton from Harris v. State, 206 Tenn. 276, 332 S.W.2d 675 (1960) on the ground that the “intended” felony charged in the burglary count in Harris was larceny, while the second felony charged and actually proved was assault with intent to commit rape, which charges “do not constitute the same offense, but are entirely [separate] and unconnected offenses.” Id. at 680.

The “single criminal act — single criminal intent” rationale exhibited in Walton was used in a good many Tennessee cases prior to Black. Indeed, the Black opinion analyzes at length the two separate and largely inconsistent lines of cases, the existence of which persuaded the Black court to try and resolve the apparent conflict in Tennessee law between the “same evidence” and the “same transaction” tests.

Walton and the other “same transaction — same intent” cases culminated in Acres v. State, 484 S.W.2d 534 (Tenn.1972), which held that an accused in a felony-murder case could not be convicted both of first degree murder and of the felony used to supply the requisite intent supporting the murder conviction. But the same court which decided Acres also ruled a year later in Duchac v. State, that “the majority rule and clearly the rule in Tennessee is that the ‘same transaction’ test is not the law, rather the proper test is directed to the identity of the offense and has been called the ‘same evidence’ test,” 505 S.W.2d 237, 239 (Tenn.1973) citing Harris v. State, supra, and Eager v. State, 205 Tenn. 156, 325 S.W.2d 815 (1959). Asked to elect between the Acres-same transaction/same intent approach and the Duchac-same evidence test, the Black court chose to confine Acres to its facts, i. e., the felony-murder situation, and reaffirmed Duchac. In so doing, the court extensively reviewed those cases cited in Acres in support of the “same transaction” rule. Among these was Walton and Patmore v. State, supra, relied on by the defendant here. None of the cases cited in Acres and reviewed in Black involved felony-murder charges, except Acres itself. Thus we think in confining Acres to its facts, the Black court overruled sub silentio the non-felony murder cases cited in Acres. Furthermore, the same court has since explicitly overruled Acres. State v. Briggs, 533 S.W.2d 290 (Tenn.1976). Thus we conclude that Walton is no longer good law under recent Tennessee decisions. It follows that it is not controlling in the case before us.

We think this result is sound. The law in the overwhelming majority of states has always permitted convictions of both burglary and the “intended” felony, if the proof showed the commission of the second offense. See, e. g., Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1914); Dunaway v. United States, 170 F.2d 11 (10th Cir. 1948); Williams v. State, 205 Md. 470, 109 A.2d 89 (1954); State v. Byra, 128 N.J.L. 429, 26 A.2d 702 (1942), aff’d per curiam, 129 N.J.L. 384, 30 A.2d 49 (1943), cert. denied, 324 U.S. 884, 65 S.Ct. 1025, 89 L.Ed. 1434 (1945); Com. ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941); Punchard v. State, 124 Tex.Cr.R. 101, 61 S.W.2d 495 (1933); Whitted v. State, 187 Ark. 285, 59 S.W.2d 597 (1933); People v. Andrae, 305 Ill. 530, 137 N.E. 496 (1922); State v. Broderick, 191 Iowa 717, 183 N.W. 310 (1921); Wilson v. State, 24 Conn. 57 (1855). The reason behind the majority rule has been clear at least as far back as 1551, when Lord Coke defined a burglar as:

a felon that in the night breaketh and entreth into a mansion house of another, of intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent be executed or not.

Thus the crime of burglary is considered completed when the entry is executed with a concomitant intent to commit a felony inside the building entered. Duchac v. State, supra, at 239-40. It follows that a second crime committed after the burglarious act is completed constitutes a separate crime, susceptible of a separate conviction and punishment. Thus the trial judge in this case was not precluded as a matter of law from the imposition of consecutive sentences based on the verdict of the jury.

The judgment of the court below is affirmed.

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

      . The court in Walton may have read more into Harris than that opinion will bear. In Harris the defendant had previously been convicted of burglary, and was being tried for the assault with intent to commit rape which allegedly followed the burglary. No where in the Harris opinion does it say what specific intent the burglary indictment had alleged, although it does appear that Harris confessed to breaking in with the intent to steal the victim’s money. 332 S.W.2d at 679. The Walton court may have overlooked the following language in the Harris opinion:
      Whether the defendant intended, when he entered Roxie Logan’s home that night, to obtain money or commit the offense of burglary (rape?), the only reasonable conclusion that can be reached, from the undisputed facts as to what took place in the room thereafter, is that he also had an intent to rape her, formed either before he broke into the house, or after he gained entrance and saw her on the bed, and that he did attempt to do so. Id. at 678 (emphasis supplied). Thus it appears that Harris may have had a single continuing intent to rape throughout the “transaction,” a fact which the Harris court did not find to be outcome determinative. The Harris case therefore seems less distinguishable from the facts in Walton than the Walton court held it to be.

      . In an opinion released the same day as Black, the Tennessee Supreme Court upheld separate convictions for armed robbery and felonious escape growing out of a single episode in which the defendant robbed a state employee of the keys to a pick-up truck and escaped the penal farm in the truck. State v. Scates, 524 S.W.2d 929 (Tenn.1975). The defendant argued that the proof showed the existence of a single continuous intent to escape, and that both convictions could not stand, under the authority of Young v. State, 487 S.W.2d 305 (Tenn.1972). As it did in Black, the Tennessee Supreme Court refused to overrule Young expressly even though the facts in Young were virtually identical to those in Scates. But the court likewise confined Young to its facts, saying that to do otherwise “would permit the felonious confiscation of the personal property of others, under threat of deadly force, to go unpunished under the guise that there was no ‘separate intent’ except to use that property as a part of an intent to escape, or as a part of one 'continuous transaction.’ ” 524 S.W.2d at 932 (emphasis supplied).

      . See also Note, A Rationale of the Law of Burglary, 51 Col.L.Rev. 1009 (1951), in which the author cites Tennessee only as holding contrary to the majority rule. Id. at note 4. The earliest case expressing the Tennessee rule appears to be State v. DeGraffenreid, 68 Tenn. 287 (1878); the most frequently cited is Cronan v. State, 113 Tenn. 539, 82 S.W. 477 (1904). The Cronan case was cited as support in Acres and also reviewed in Black, 524 S.W.2d at 915. Cf. Petree v. State, 530 S.W.2d 90 (Tenn.Cr.App.1975).

      . 3 E. Coke, Institutes 63.