author: HENRY, Justice. HENRY, Justice.

text:
    Kenneth R. McCROSKEY, etc., Appellant, v. BRYANT AIR CONDITIONING COMPANY et al., Appellees.
    Supreme Court of Tennessee.
    April 7, 1975.
    Dennis L. Tomlin, Larry L. Roberts, Nashville, for appellant.
    S.McP. Glasgow, Jr., I. Dyke Tatum, Glasgow, Adams & Taylor, Nashville, for Bryant Air Conditioning Co. '
    John K. Maddin, Jr., Gracey, Maddin, Cowan & Bird, Nashville, for Tepsco Tennessee Pipe & Supply Corp.
    W. W. McNeilly, Jr., Nashville, for Contractors Heating & Cooling, Inc.
    H. Francis Stewart, Stewart & Estes, Nashville, for U. Grant Browning, and others.
   OPINION

HENRY, Justice.

This products liability action presents the question of when the statute of limitations begins to run.

I.

The cause of action for personal injuries and wrongful death is based upon an allegedly defective gas furnace. Named as parties defendant are the manufacturer, the distributor, the general contractor, the sub-contractor and installer, and the owners of the apartment building. Recovery is predicated upon negligence, strict liability, misrepresentation and breach of warranty.

The record reflects that the gas furnace was manufactured in 1967 and distributed and installed on or about 9 February 1968. The injuries were sustained by Mattie J. McCroskey on 1 May 1971. Suit was filed 28 July 1971. Mrs. McCroskey died on 10 September 1971. After her death the suit was properly and timely revived, and an amended and substituted complaint was filed.

All parties moved the Court for a summary judgment upon the ground that the suit was barred by Sec. 28-304 T.C.A.

Relying primarily upon Jackson v. General Motors, 223 Tenn. 12, 441 S.W.2d 482 (1969) and Ford Motor Company v. Moulton, 511 S.W.2d 690 (Tenn.1974), and with evident reluctance (stating that he was “bound to follow (laws and decisions) even those which may be offensive to one’s traditional notions of fair play and substantial justice”), the trial judge sustained all motions, held that the cause of action was barred by the one year statute of limitations, and dismissed the suit.

In complete fairness to the Trial Judge, we acknowledge the correctness of his actions when confronted, as he was, with the applicable statutory and decisional law, by which he was bound.

This Court labors under no such handicap.

II.

The time sequence becomes important.

On the date of the sale of this product and on the date of its distribution, Sec. 28-304, T.C.A. read in pertinent part as follows:

Actions . . . for injuries to the person . . . shall be commenced within one (1) year after cause of action accrued.

On 31 January 1969 this Court filed its opinion in Jackson v. General Motors, supra, holding that under Sec. 28-304, T.C.A. the statute begins to run on the date of purchase of the defective commodity and not the date of the injury.

The Legislature reacted promptly and properly to correct the harsh results of this holding. Sec. 28-304 was amended, by adding thereto the following:

For the purpose of this section, insofar as products liability cases are concerned, the cause of action for injury to the person shall accrue on the date of the personal injury not the date of the negligence or the sale of a product .
This act shall not apply to causes of action accruing prior to the effective date of this act.

The Code section as thus amended was in full force and effect on the date of injury (1 May 1971) in this case.

On the surface, the suit was permitted by the Code section as amended; however, under Jackson the plaintiff’s cause of action accrued on the date of sale (Feb. 9, 1968) and expired Feb. 9, 1969, despite the fact that the injury had not yet occurred. This conclusion is mandated by the holding of this Court in Flynn v. Camp, 225 Tenn. 457, 470 S.W.2d 347 (1971).

Next in point of time the Legislature in 1972 again responded by further amending Sec. 28-304, T.C.A., by deleting the language providing that the 1969 act would not apply to causes of action accruing prior to its effective date and adding to the Code section the following:

and in said products cases no person shall be deprived of his right to maintain his cause of action until one (1) year from the date of his injury and under no circumstances shall his cause of action be barred before he sustains an injury.

This amendment, no doubt, was prompted by the holding of this Court in Flynn v. Camp, supra.

There the law stood until this Court decided Ford Motor Company v. Moulton, 511 S.W.2d 690 (Tenn.1974) holding that the 1972 amendment could not be applied retrospectively.

It was in this setting that the trial judge dismissed this suit. His action, followed by this appeal, forces this Court to re-examine Jackson v. General Motors, supra. We reexamine this case in the light of the evident public policy of our state as declared by the Legislature and of the recent decision of this Court in Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974).

III.

We approach this analysis from a standpoint of reason, logic and fundamental fairness. These are criteria by which any rule of law should be tested. When we weigh the rule of Jackson v. General Motors, supra, in the balance, we find it to be wanting. It is only just for us to decree that in any tort action the cause of action accrues when, and only when, the force wrongfully put in motion, produces injury. We cannot embrace or continue any rule of law which charges a litigant with sleeping upon any right which he does not have.

We are challenged by the cogent and colorful language of Judge Jerome Frank’s dissenting opinion in Dincher v. Marlin Firearms Co., 198 F.2d 821 (2 Cir. 1952):

Except in topsy-turvey land, you can’t die before you are conceived, or be divorced before ever you marry, or harvest a crop never planted, or burn down a house never built, or miss a train running on a non-existent railroad. For substantially similar reasons, it has always heretofore been accepted, as a sort of legal “axiom,” that a statute of limitations does not begin to run against a cause of action before that cause of action exists, i. e., before a judicial remedy is available to the plaintiff. Id. at 823.

In Campbell v. Colt Industries, Inc., 349 F.Supp. 166 (W.D.Va.1972) the court in holding that, whether based on negligence or breach of warranty, a cause of action for personal injuries did not accrue until the injury occurred, quoted from the Virginia case of Caudill v. Wise Rambler, Inc., 210 Va. 11, 168 S.E.2d 257 (1969), as follows:

Obviously, since the plaintiff had not been injured at the time she purchased the car, she could not then maintain an action for her injuries. To say, then, that her right of action accrued before her injuries were received is to say that she was without remedy to recover damages for her alleged injuries. Such an unjust and inequitable result is not the purpose of statutes of limitation. They are designed to compel the prompt assertion of an accrued right of action; not to bar such a right before it has accrued.
A right of action cannot accrue until there is a cause of action ... In the absence of injury or damage to a plaintiff or his property, he has no cause of action and no right of action can accrue to him . . . Or, to state the matter another way, a plaintiff’s right of action for damages for personal injuries does not accrue until he is hurt. Id. at 168.

In Everhart v. Rich’s Inc., 229 Ga. 798, 194 S.E.2d 425 (1972) the Supreme Court of Georgia, in a products liability case, held:

(t)he statute of limitations generally begins to run at the time damage caused by a tortious act occurs, at which time the tort is complete. 194 S.E.2d at 428.

The Court of Appeals of Michigan in Parrish v. B. F. Goodrich, 46 Mich.App. 85, 207 N.W.2d 422 (1973), also a products liability case, citing Connelly v. Paul Ruddy’s Equipment Repair and Service Co., 388 Mich. 146, 200 N.W.2d 70 (1972) held:

(a) cause of action for damages arising out of a tortious injury to a person accrues when all the elements have occurred and can be alleged in a complaint. 207 N.W.2d at 424.

Our own Chief Justice dissented from the majority opinion in Ford Motor Company v. Moulton, supra. We quote from his dissent:

The following principles are stated concisely in Hodge v. Service Machine Company, 438 F.2d 347 (6th Cir. 1971).
“A cause of action accrues when a suit may be maintained upon it. Black’s Law Dictionary 37 (4th ed. 1951). A suit may not be brought upon a cause of action until it exists, and a cause of action does not exist until all its elements coalesce. In civil actions for damages, two elements must coalesce before a cause of action can exist: (a) a breach of some legally recognized duty owed by the defendant to the plaintiff; (b) which causes the plaintiff some legally cognizable damage.”
To hold that a products liability action, which is a recognized legal right, is barred by a statute of limitations before any injury is sustained, deprives a person of the opportunity of redress for an injury done him in his goods or person by due process of law, contrary to our Constitution. 511 S.W.2d at 697.

Lastly, we come to our recent case of Teeters v. Currey, supra. We said, in pertinent part:

We find it difficult to embrace a rule of law requiring that a plaintiff file suit prior to knowledge of his injury or, phrasing it another way, requiring that he sue to vindicate a non-existent wrong, at a time when injury is unknown and unknowable.
(T)he public policy of our state is opposed to re-requiring that suit be filed when circumstances totally beyond the control of the injured party make it impossible for him to bring suit.
* * * * * *
We here merely recede from prior cases in order to establish a rule which we are convinced will be productive of results more nearly consonant with the demands of justice and the dictates of ethics and morality.

We again recede — prompted by the same demands and dictates. We overrule Jackson v. General Motors.

The results we reach are wholly independent of the amendments to Sec. 28-304. We need not apply them. The result is that we do not reach the matter of their retrospective application. We, therefore, neither re-affirm nor reverse Ford Motor Company v. Moulton, but we have quoted, with approval, from the dissent of our present Chief Justice.

We hold that in tort actions, including but not restricted to products liability actions (“conceived in an illicit intercourse of tort and contract”) predicated on negligence, strict liability or misrepresentation, the cause of action accrues and the statute of limitations commences to run when the injury occurs or is discovered, or when in the exercise of reasonable care and diligence, it should have been discovered. All cases contra are overruled.

IV.

This leaves for consideration the applicable statute governing so much of this action as is founded on breach of warranty.

We trace the relevant history in this jurisdiction.

In Bodne v. Austin, 156 Tenn. 353, 2 S.W.2d 100 (1928) this Court applied the one-year statute of limitation to a personal injury action predicated on a contract relation.

In Albert v. Sherman, 167 Tenn. 133, 67 S.W.2d 140 (1933), the Court held that an action for injuries to the person, whether viewed as sounding in contract or tort, is governed by the one-year statute.

To the same effect is Bland v. Smith, 197 Tenn. 683, 277 S.W.2d 377 (1955). See also Hackworth v. Ralston Purina, 214 Tenn. 506, 381 S.W.2d 292 (1964) applying the three-year statute to a breach of warranty case.

As a result of these and satellite decisions, the law was established in Tennessee that the one-year statute of limitation governed personal injury actions and the three-year statute governed property damage, irrespective of the nature (tort or contract) of the claim of damage.

But these decisions were rendered before the adoption of the Uniform Commercial Code, or in cases not arising under the Code.

Sec. 47 — 2—725 contains the statute of limitations applicable to breach of warranty actions arising after midnight on June 30, 1964. It provides in pertinent part:

(1) An action for breach of any contract for sale must be commenced within four (4) years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one (1) year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

This section came under the scrutiny of this Court in Layman v. Keller Ladders, Inc., 224 Tenn. 396, 455 S.W.2d 594 (1970). Plaintiff’s products liability suit was predicated upon (1) negligence, (2) breach of warranties and (3) strict liability. The Court held in substance that the principles articulated in Bodne and Hackworth were no longer valid in breach of warranty actions. It was pointed out that the old Sales Act, which was repealed by the U.C.C., did not contain a specific statute of limitations, which led to the dilemna of deciding whether the six-year statute for contracts or the one-year statute for personal injuries should govern. The Court further observed that the U.C.C. reached the problem by affording a specific limitation period. Therefore, the Court concludes:

(W)e are of the opinion that Section 47— 2 — 725 should control in all actions wherein a breach of warranty of a contract of sale is alleged, irrespective of whether the damages sought are for personal injuries or injuries to property. However, as to counts alleging common law negligence and strict liability, the one or three-year statutes are still applicable.

We reaffirm this as a general statement of the law. We note however, that the wording of Sec. 47-2-725 is deficient in clarity and, no doubt, will be productive of future litigation which ultimately will result in its refinement. For the time being we are content to hold that this statute, as adopted by our Legislature, contemplates that actions based on breach of warranty, be brought within four years after a tender of delivery is made, subject to the exceptions contained therein.

The decision of the trial judge is reversed and this cause is remanded for further proceedings consistent with this opinion. The costs of this appeal are divided equally among the appellees.

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

HARBISON, J., not participating.

OPINION ON PETITION TO REHEAR

HENRY, Justice.

Counsel for Bryant Air Conditioning Company and Tennessee Pipe and Supply Corporations, have filed courteous and dignified petitions to rehear.

While they essentially re-argue matters previously briefed and argued and basically rely upon the authorities heretofore presented, out of deference to the obviously sincere conviction of able counsel, we have elected to respond to the petitions.

The petition of Bryant Air Conditioning Company insists (1) that it had a vested right under the statute as it existed on May 20, 1969; (2) that the decision of this Court may not be made properly, independent of the statute; and (3) that under the 1969 amendment to Section 28-304 T.C.A., the cause of action accrued more than one year prior to the institution of this action and the 1969 amendment is controlling.

A careful reading of the opinion will reveal that these matters were considered and decided adversely to petitioner’s insistence. In the interest of clarity we restate, clarify and amplify this portion of the original opinion.

On 31 January 1969, when this Court filed its opinion in Jackson v. General Motors, 223 Tenn. 12, 441 S.W.2d 482 (1969), Section 28-304, T.C.A. simply provided that actions for personal injuries “shall be commenced within one (1) year after cause of action accrued”. In Jackson the Court, in effect, defined the phrase “the cause of action accrued”, to mean and be synonymous with “date of sale”.

Independent of any amendment, we receded from Jackson and held that the cause of action accrues “when the injury occurs or is discovered”.

Obviously, the 1969 amendment was enacted to meet the holding of Jackson. Under Section 1 of that amendment, the cause of action is made to “accrue on the date of the personal injury”. Under Section 2, it is provided that the amendment would “not apply to causes of action accruing prior to the effective date of this act”, which was May 20, 1969.

It should be noted that the cause of action in this case did not accrue until May 1, 1971, or almost two years after the 1969 amendment.

A major thrust of the petition to rehear is that the effect of Section 2 was to codify the Jackson “date of sale” rule with the result that the statute began to run from that date as opposed to the date of the injury or its discovery.

We reject this contention. The whole purpose of the 1969 amendment was to avoid the consequences of Jackson. The underpinning of the statute having been stricken by this Court, Section 2 of the amendment is stripped of all validity and vitality, if, indeed, it was ever clothed with such attributes.

Section 2 of the 1969 amendment must be read in the light of a cause of action that had already accrued and expired before it would stand as a bar to any suit. Again, in this case, the cause of action did not accrue until after the effective date of the 1969 amendment. The rule announced in Gird-ner v. Stephens, 48 Tenn. 280 (1870), relied upon by the petitioner, is not at variance with this holding and does not support petitioner’s insistence since it deals with a statute that “had otherwise expired”. Any other construction would operate to render this Section 2 unconstitutional. Petitioners had no vested right under the 1969 statute.

We did not address the issue of the retrospective application of laws since we applied no law retrospectively.

Petitioners insist that the 1969 amendment is controlling and simultaneously they assert that “the cause of action accrued, prior to May 20, 1969, when the date of the negligence or sale of the product occurred ”. This is in the very teeth of the amendment which fixes the accrual as being “the date of the personal injury not the date of the negligence or the sale of the product”. This construction can only follow if we ignore Section 1. Petitioner ignores this Section 1, and treats Section 2 as if it relates to and codifies the Jackson rule, and bears no relation to the other section of the amendment. We reject this insistence.

Petitioner insists that the Court has “legislated” in reaching its decision in defining or redefining the accrual date of the cause of action. We cannot assume that the Legislature would adopt a statute which would deny redress to a citizen by requiring that he sue prior to knowledge of his injury. We, therefore, adopted a discovery rule in order to validate the statute and prevent a plain deprivation of justice. While it was mere coincidence that the rule adopted by this Court closely parallels the 1972 amendment, it bolsters our belief that the Legislature and this Court were attempting to arrive at a just conclusion.

The petition of Tennessee Pipe and Supply Corporation raises additional questions.

First, it is insisted that so much of this action as sounds in breach of warranty should be dismissed. The only issue, as raised by the pleadings before this Court at this time, is that of the statute of limitations. The privity issue is not before the Court.

Next, this petitioner insists that the Court’s opinion permits the possible construction that a suit for personal injuries may be brought more than one year after the injury occurs in violation of the 1972 amendment to Section 28-304, T.C.A. The main opinion is clear. It requires the definite construction that a suit for personal injuries may be brought more than one year after the injury occurs, provided it is brought within one year after it is discovered or in the exercise of reasonable care and diligence should have been discovered. This is the sense of Section 28-304, in its present form.

Lastly, this petitioner insists that there is a conflict between Section 28-304, and Section 47-2-725, T.C.A. Perhaps so. But only to the extent that the demarcation between cases which are “essentially tort” and those which are “essentially warranty”, is sometimes blurred. As a general rule Section 28-304 T.C.A. is applicable to strict tort cases, whereas Section 47-2-725 applies to warranty actions.

We overlooked nothing in our main opinion. We have reconsidered the case in its entirety and have overlooked nothing in this opinion, although we have prepared it on a selective basis and have not dealt seriatim with the numerous assertions of the two rather elaborate petitions. We have dealt with the controlling issues.

The costs incident to these petitions are taxed against petitioners.

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

HARBISON, J., did not participate.

      . Chapter 293, Public Acts of 1969, became effective May 20, 1969.

      . The language used is that contained in the Public Act; minor conversions were made in codification.

      .Chapter 669, Public Acts of 1972 became effective April 11, 1972.

      . Sec. 28-304 now provides:
      Actions for libel, for injuries to the person, false imprisonment, malicious prosecution, criminal conversation, seduction, breach of marriage promise, actions and suits against attorneys for malpractice whether said actions are grounded or based in contract or tort, civil actions for compensatory or punitive damages, or both, brought under the federal civil rights statutes, and actions for statutory penalties shall be commenced within one (1) year after cause of action accrued. For the purpose of this section, insofar as products liability cases are concerned, the cause of action for injury to the person shall accrue on the date of the personal injury not the date of the negligence or the sale of a product and in said products cases no person shall be deprived of his right to maintain his cause of action until one (1) year from the date of his injury and under no circumstances shall his cause of action be barred before he sustains an injury.

      . Prosser, The Fall of the Citadel, 50 Minn.L. Rev. 791, 800 (1965).

      . Misrepresentation is a tort. See Restatement (Second) of Torts, Sec. 402B(1965).

      .Adopted, by Chapter 81, Public Acts of 1963.

      . The trial judge, on remand, will want to consider the applicability of Sec. 28-314 et seq., T.C.A., which we have not dealt with since not directly at issue in this appeal.


source: Caselaw Access Project

author: O’BRIEN, Judge.

license: Public Domain

text:
    Charles Lockhart NASH, Jr., Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    Jan. 15, 1975.
    Certiorari Denied by Supreme Court May 12, 1975.

      Richard R. Ruth, Jr., and Michael E. Lun-dy, Chattanooga, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Etrula R. Trotter, Asst. Attys. Gen., Nashville, Robert J. Batson, Stanley J. Lanzo, Asst. Dist. Attys. Gen., Chattanooga, for defendant in error.
   OPINION

O’BRIEN, Judge.

Appeal in error from judgment on a jury verdict finding defendant guilty of taking and using an automobile without the own-fer’s consent and fixing his sentence at not less than one year nor more than three years in the State Penitentiary.

The first two assignments of error charge the trial court erred in invoking the rule of sequestration of witnesses on request of the State subsequent to receiving testimony from the State’s first witness; and in allowing the testimony of a second State witness upon a showing that he had conferred with the attorney general and the original witness outside the court room.

The record in this case unmistakably shows the State introduced the testimony of only two witnesses. The second of these witnesses was not present in the court room during the testimony of the first. Defendant’s witnesses were removed from the court room upon the State’s request for the rule after the direct examination of the first witness. Defendant’s witnesses had the advantage of having heard the testimony of this witness prior to the rule being invoked. Defendant has failed to show he was prejudiced in any manner or that there was any abuse of discretion on the part of the trial judge in invoking the rule as he did. McCravey v. State, 2 Tenn.Cr.App. 473, 455 S.W.2d 174. Insofar as the testimony of the second witness, Detective Frank Newson, is concerned, upon objection to the admission of his testimony by defense counsel, the trial judge investigated to determine the nature of the conversation between this witness and the State’s counsel. He did not find any prejudice incurred by defendant, the objection was overruled and the witness was allowed to testify. We agree with the action of the trial judge in both instances and the assignments are overruled.

Defendant says he was unfairly prejudiced due to remarks made by the attorney general to the effect that the defense witness Omenys West had been placed under arrest for the offense of armed robbery.

On cross-examination of this defense witness he was asked by the State’s attorney if he had not been arrested for armed robbery. Prompt objection was made and sustained before the question was answered. Defense counsel moved for a mistrial. The jury was excused and after a lengthy discussion among court and respective counsel the court ruled the question was objectionable and on request of defense counsel the jury was instructed to disregard the question of the attorney general. In Blankenship v. State, 219 Tenn. 355, 410 S.W.2d 159, the Supreme Court restated the rule on a question of this nature as follows:

“It is only when evidence erroneously admitted in a criminal case is of such apparent weight and so prejudicial in effect that the judicial warning against it seems light and unavailing by comparison that the error remains uneured by striking it out.”

Extensive authority for the rule is cited in Blankenship, supra, and we conclude that the facts of this case bring it within the scope of this rule. The assignment cannot be sustained.

It is contended the verdict was unsupported by the evidence presented at trial.

The State’s proof was positive that the vehicle found to be in defendant’s possession had been previously stolen. When he was observed driving the vehicle he engaged in evasive tactics in an apparent effort to avoid apprehension which resulted in damage to several other vehicles as well as the one operated by defendant. The State’s further proof was that the vehicle had been hot wired, although this issue was controverted by defendant’s proof. There is no doubt that this evidence was sufficient to warrant the verdict of the jury and the assignment is overruled.

The final assignment contends the court erred in granting the State’s motion to fix the sentence in this case to run consecutively to the sentence in case no. 124838, which was an earlier conviction. This assignment must be sustained.

In this case and in case no. 124838, petitioner’s guilty pleas were accepted by an order entered on September 7, 1973. The sentence in this case (No. 125131) was fixed to begin at the expiration of the sentence in case no. 128829. The sentence in case no. 124838 was fixed to begin at the expiration of the sentence in case no. 124829. We assume that the difference between the numbers in the sentence to be served first in each of the judgments is the result of a typographical error. There is no special judgment in either of the sentences under consideration to the effect that either was to be cumulative of the other. In such a case it is the law that- they shall be construed to run concurrently. Howe, Sheriff v. State ex rel. Pyne, 170 Tenn. 571, 98 S.W.2d 93; State ex rel. York v. Russell, 180 Tenn. 515, 176 S.W.2d 820.

On October 5, 1973, less than thirty days after the judgment on the guilty plea, in response to defendant’s motion it was ordered that the judgments be set aside and the defendant allowed to withdraw his guilty pleas.

On February 5, 1974, after the jury trial on a not guilty plea in this case, the trial court sustained the State’s motion to have the sentences in case nos. 125131 and 124838 run consecutively. A special order was filed on April 3, 1974, setting forth the court’s reasons for the unquestionably enhanced punishment.

This case is controlled by our Supreme Court ruling in Williams v. State, Tenn., 503 S.W.2d 109, citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, as follows:

“A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities.’ Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337. Such information may come to the judge’s attention from evidence adduced at the second trial itself, from a new presen-tence investigation, from the defendant’s prison record, or possibly from other sources.”
“. . . whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.”

While the special order in this case includes the explanation of the learned trial judge for fixing the sentences of defendant to run consecutively, the reasons set forth in said order do not meet the criteria of North Carolina v. Pearce, supra, and therefore, we modify the judgment in this ease to fix the sentence herein to run concurrently with the sentence of the trial court in case no. 124838. In all else, the judgment of the trial court is affirmed.

WALKER, P. J., and DWYER, J., concur.


text:
    Jack T. WADE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Jan. 29, 1975.
    Certiorari Denied by Supreme Court May 12, 1975.
    Boyd W. Cox, Knoxville, Dale Quillen, William C. Wilson, Nashville, for plaintiff-in-error.
    Milton P. Rice, Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., John R. Lodge, Jr., Research Asst., Nashville, Ronald A. Webster, Dist. Atty. Gen., Ralph A. Har-well, James L. Jones, Asst. Dist. Attys. Gen., Knoxville, for defendant-in-error.
   OPINION

O’BRIEN, Judge.

Appeal in error from judgment on jury verdict finding defendant guilty of selling heroin and fixing his punishment at not less than five years nor more than seven years in the State Penitentiary.

On this appeal defendant first assigns as error that members of the jury improperly separated during the course of the trial and were not kept under surveillance during the separations.

This has been a very interesting ease, ably and competently presented and defended in the trial court, which has provoked a good deal of research in considering the assignments of error and in determination of our decision on the assignments.

Defendant bases his argument to support the first assignment of error on the case of Hines v. State, 27 Tenn. 597, which was considered by our Supreme Court more than one hundred years ago. He cites several of the more recent decisions in this state on the subject as authority for the proposition that there has been no departure from the rule stated in Hines.

In reviewing this theory we have read all of the cases cited by defendant as well as a number of others, including several decisions which preceded Hines. A recitation of the facts surrounding the separation of the jury in this case is necessary to a discussion of these cases.

On the second day of the trial when the court reconvened, and before the jury returned to the court room, counsel for the defendant stated to the court that in walking from his hotel to the Court House, as he arrived at a parking lot just above the Court House, he observed three members of the jury coming from the parking lot. They were not in the custody of any officer assigned by the court to attend the jury. Counsel walked behind these jurors to the. Court House and there observed the other male members of the jury coming up the stairs. The female members of the jury were also entering the Court House in the custody of their officer. Upon receiving this report the trial judge commented that it was necessary to house the jurors where adequate housing could be obtained for them and it was necessary for them to take their cars to go to a motel to spend the night. He stated he would explore the matter further at a later time and overruled a motion for mistrial. The jury was then called and the trial proceeded.

After the jury verdict was returned, judgment was entered by the trial judge, other procedural matters consummated, and the jury dismissed. The trial judge then conducted an investigation of the matter by examining the court officers assigned to attend the jury as well as each of the jurors independently. The male court officer was sworn and stated he had attempted to take charge of the jury in conformance with his oath. He had housed them at the Town Lodge Motel. Mrs. Ora Norris was the matron in charge of the ladies, and she was present at the motel. When court was adjourned at approximately 7:30 the previous evening, the court officer took seven of the jurors in his personal car. They proceeded to the vehicles owned by these jurors. This group was assembled with their respective vehicles and then went to the motel. Mrs. Norris took the other men and the women jurors to an all night garage in the vicinity to obtain their car keys. When the officer arrived at the motel this second group was already there. The jury was checked into the motel before they were taken to dinner at the Carriage House which was next door to the motel. The officer arranged to have the vehicles of all of the jurors parked on the Hill St. viaduct in the morning and to have them served breakfast at the Hyatt House, both places evidently being in the vicinity of the Court House. This arrangement enabled him to have the jury in the Court House by 8:00 o’clock in the morning. He had instructed each of the jurors to follow him and park their cars on the viaduct. The drivers of two cars did not follow these instructions and went directly to the Hyatt House parking lot. One of these vehicles contained three men jurors and the other one, two women jurors and the matron. The officer’s explanation for these events was that one of the lady jurors had refused to follow the matron’s instructions to park on the viaduct, insisting she would park in the Hyatt House parking lot as she normally did when she came to town. He did not know where the three men parked when they came from breakfast to the Court House. He did not observe any strangers talking to any member of the jury from the time they left the Court House at the conclusion of the first day of trial until they arrived back there on the following morning. One stranger in the motel lounge made inquiry about what the officer would do if he attempted to talk to some of the jurors and was informed in somewhat basic language that he would be placed in jail. No one to his knowledge talked to any of the jurors.

The matron was sworn and testified that after they left the court at the end of the first trial day one of the male jurors took her and the two lady jurors to obtain their ear keys. He let them out of his automobile and drove away. They then obtained the car keys and drove together in one vehicle to the Town Lodge Motel, where they waited in the lobby until the other court officer came. They then went in a body to eat after which they returned to the motel. The court officer requested all of the jurors to park their cars on the Hill St. viaduct in the morning. The following morning the lady juror who was driving said she could see no point in leaving her car on the viaduct and walking three blocks. She ignored the court officer’s instructions and drove to the assigned eating place and parked in front. When they walked in the matron found three of the men jurors waiting for them. The lady juror went into the dining room and directed the personnel there to set up fourteen places, ignoring the admonition of the matron not to do so. When they returned to the Court House from breakfast the lady juror parked her vehicle where it had been parked on the first day of the trial. When they returned to the Jury Room they saw three of the men jurors standing in there with no officer in attendance on them. To her knowledge no one other than the officers talked to any member of the jury and she did not observe any strangers in the presence of any of the jurors at any time when they were in her sight.

Juror Goodman testified he was never out of the presence of the attending officer on the first day of the trial. On the morning of the second day he followed the officer from the motel to the assigned eating place. On the way from the restaurant to the Court House they became separated. He rode from the viaduct on Hill St. where he had parked his truck to the Hyatt Regency with Juror McBee and Juror Donald Hall. During the entire course of the trial he did not discuss the case with anyone other than his fellow jurors.

Juror Donald Hall confirmed that he had ridden with Goodman in Juror McBee’s car and that these three had been at the Court House and had waited in the Jury Room three or four minutes before the remainder of the jury arrived. He had not had any discussion with anybody about the case except his fellow jurors.

McBee said he, Goodman, and Donald Hall came from the restaurant to the Court House by themselves in his car after breakfast. They drove to a parking lot on Gay St. and walked from there to the Court House. They were not separated at any time. They preceded the other jurors to the Court House by about five minutes. The night before the jurors drove separate automobiles to the motel, arriving at approximately the same time. He had not had any conversations with anyone other than the other jurors and the court officers about the case.

Juror Goehring says he took the two lady jurors and the matron to pick up the car keys the night before. One of the lady jurors rode with him to the motel while the matron and the other female juror followed him in her car. All of his discussions about the case had been exclusively with his fellow jurors. To his knowledge none of the jurors had talked with any strangers or outsiders. All the rest of the jurors had been in the company of one or more of the other jurors for the entire time the court was in recess. They had not communicated with anyone other than their fellow jurors other than when the two lady jurors did not follow the instructions of the officer in charge of the jury while going to breakfast. They were never out of the presence of the matron who was in attendance upon them except en route to the motel for their nights lodging when one rode with a fellow juror and were followed by the female officer and the other lady.

After the trial judge concluded his examination of the court officers and all of the jury he stated that unless it could be shown some person had tampered with the jury there would not be any grounds for complaint.

At the conclusion of the argument on the motion for new trial the trial judge made an extensive finding of facts in regard to the various grounds which had been alleged. In reference to the matter of the separation of the jury he stated that it was necessary to make arrangements to house the jury in a motel out on the Chapman Highway. Prior to the trial of this case to his knowledge no problem had occurred in having the jurors and their respective automobiles keep in sight of each other and their officers en route. As a result of receiving the report that the jurors were separated in this case he had interrogated each of the jurors in regard to their activities in staying together overnight, and in proceeding to breakfast and return to the Court House the next morning. The procedure in traveling to the motel was satisfactorily explained. Each of the jurors stated he had not talked to anyone other than another juror nor had they observed any juror talking to anyone outside the jury. The trial judge expressed his confidence in the character of the jury and his reliance on his belief that they would not commit perjury under oath. Each of them had stated under oath that no one had tried to influence them or try to talk to them, nor did they talk to anyone, all their conversations and communications had been with fellow members of the jury panel, and each one had stated that they based their decision upon the evidence and upon the law given to them by the court. Based on these facts and the case law as he construed it, it was his opinion there were no errors in the trial procedure and the facts did not warrant overturning the jury verdict.

It is quite clear to this court that Hines v. State, 27 Tenn. 597, (1848), which cites several of the earlier cases on the subject, stands for the proposition, relied on by defendant, as follows:

“1st, that the fact of separation having been established by the prisoner, the possibility that the juror has been tampered with, and has received other impressions than those derived from the testimony in Court, exists, and prima facie the verdict is vicious; but 2d, this separation may be explained by the prosecution, showing that the juror had no communication with other persons, or that such communication was upon subjects foreign to the trial, and that, in fact, no impressions, other than those drawn from the testimony, were made upon his mind. But, 3d, in the absence of such explanation, the mere fact of separation is sufficient ground for a new trial.”

In considering this matter in Hines, supra, our Supreme Court referred to the earlier cases of McLain v. State, 18 Tenn. 241, and Stone v. State, 23 Tenn. 27, in which the above principles were discussed. While the rule stated in those cases has been followed in this State it is plain, upon a reading of later cases that, due to changing circumstances in our mode of living, this rule has experienced some modification. In Cartwright v. State, 80 Tenn. 620, it was reported that two of the jurors had separated from their fellows. In the case of one it appeared from his affidavit, and that of the officer having charge of the jury, that no such separation occurred. There was some conflict in the evidence about the other juror, but it appears that at the most he may have been on the second floor veranda of the hotel where the jury was quartered and there was no evidence that he was in communication with any other person. In that case our Supreme Court had this to say:

“If the juror does wantonly separate himself from his fellows, probably the rule approved in 8 Hum. (Hines v. State, supra), and other cases may not be too harsh. But where it is affirmatively shown that no one was with the juror, with whom he could communicate, that he was at no great distance from the other jurors and their officer, and where the officer says, although he does not recollect of seeing the juror at the door leading into the veranda, he could not have been there without his knowledge, and that he believes no outside party, except the judge, had any communication with them during their deliberations, the probability of such communication is too remote to warrant us in saying that defendant may have been prejudiced by the facts disclosed, in respect to his temporary separation from his fellows.”
“It is the opportunity of tampering with a juror, afforded by the separation which constitutes the ground for a new trial, but if such separation afforded no such opportunity, there can be no cause for a new trial: 4 Hum., 37.” (Stone v. State, supra).

In Sherman v. State, 125 Tenn. 19, 140 S.W. 209, the jurors were apparently separated but each of the separate groups were accompanied by one of the court officers in charge. In that case there was an extensive review of the earlier cases. The thrust of the opinion by Justice Green seems to be that the rule to be followed was that a separation of the jury may be explained by showing that those separated had no communication with other persons or that such communication was upon subjects foreign to the trial; and that the additional rule, well established at that time, was that findings of fact made by the Circuit Judge on a motion for new trial, where there is any evidence to sustain them, are binding upon the appellate courts.

In Long v. State, 132 Tenn. 649, 179 S.W. 315, there was a total separation of the jury without an officer by agreement between the attorney general and the defendant and his counsel. The Supreme Court said that under circumstances where the conduct of the jury during the separation was wholly unexplained the verdict of the jury was ipso facto vitiated. However, it was also said that this ruling under the circumstances of the case was not to be taken as in conflict with those where a separation of the jury has occurred, but it appeared that the verdict of the jury was unaffected by the separation. Finding no such showing in the transcript which could save the verdict, the case was reversed.

In Hickerson v. State, 141 Tenn. 502, 213 S.W. 917, a juror was temporarily excused by the court because of the illness and subsequent death of his child. The juror remained at his home a portion of two days and one night in the presence of a court officer. He was separated from the court officer several times during this interval and, it appears, may have talked with others. The officer testified he did not think anything improper occurred, and he did not think the juror talked with anyone except his wife. Although the Hickerson judgement was remanded for a new trial the significance of the opinion in that ease is the reference to Chapter 32 of the Acts of 1911, now incorporated in the Statutes as T.C.A. Section 27 — 117. There is no doubt that the Supreme Court expresses the view that the separation of a jury may be considered as harmless error under some circumstances:

“Nor do we think chapter 32 of the Acts of 1911 can be applied here. The act of 1911 is to be invoked only where this court can look to the merits of the controversy. Where the whole case is before us and we can see that the merits have been reached, there will be no reversal for errors not affecting the merits.”

As stated in Kennon v. State, 181 Tenn. 415, 181 S.W.2d 364:

“The plaintiff in error makes no specification of prejudice to support the assignment of error and we can find no such prejudice after reviewing the record,

In Cole v. State, 187 Tenn. 459, 215 S.W.2d 824, under circumstances very similar to those in this case, there were no accommodations available at the local hotel and the jury, attended by only one officer were taken in two taxi cabs to a motel where part of the jury slept in the same room with the officer, and the other members slept in an adjoining room. Our Supreme Court had this to say:

“. . .on the hearing on motion for a new trial 11 of the jurors, who were able to testify what happened to all 12 members of the jury, testified positively that no outsider had discussed the trial with any member of the jury, and that no improper outside influence had been attempted or exerted.
When it thus affirmatively and conclusively appears that the defendants suffered no prejudice by the mere technical separation of the jury as under the necessities of the case here, the enforcement of the rule is unreasonable and will not be required. ‘The purity of jury trials is now made to depend not on form, but substance.’ Stone v. State, 23 Tenn. 27, 38. It is true that defendants raised a presumption against a fair trial when they showed the separation of the jury, but the State overcame the presumption by the positive testimony of the 11 jurors, and the corroborating testimony of the officer, and by the circumstances of the separation. Odle v. State, 65 Tenn. 159, page 161, Rule 2.
Our cases, as well as those from other jurisdictions, make it clear that it is not the mere physical separation that is frowned upon, but it is the opportunity thus afforded the jury of mingling with outsiders while not under the eyes of the attending officer. There is no proof in the present record that any outsiders were in contact with the jury while any of its members were unattended by the officer. In such case there was no prejudice to the rights of the defendants and no error.” (Citations omitted)

The rule as stated in Cole, supra, was followed in Gray v. State, 194 Tenn. 234, 250 S.W.2d 86. In Steadman v. State, 199 Tenn. 66, 282 S.W.2d 777, our Supreme Court reviewed the various authorities, most of which we have touched on in this opinion, and reiterated that the rule stated in Hickerson, supra, was sound, and that the harmless error statute did apply in cases of this nature. The harmless error statute is also considered in Smith v. State, 205 Tenn. 502, 327 S.W.2d 308, in reference to the separation of a jury.

We are of the opinion that the trial judge would have been justified in finding in contempt the lady juror who deliberately defied the instructions of the attending court officer in regard to the procedure for going to breakfast on the second trial day. However, as stated in the more recent cases which we have discussed, there has been no showing of any prejudice as the result of the separation of the jury. We have carefully read this entire record and are satisfied that the evidence presented and accepted by the jury was clearly credible and preponderated in favor of defendant’s guilt. In the absence of a showing of prejudice in the separation of the jury we hold that the separation, as brought out by the trial judge in his investigation, must be held to be harmless error, and we are bound by his finding of fact in the matter.

It is assigned as error that defendant was denied due process because of a delay in bringing the presentment; and that he was denied his right to a speedy trial.

According to this record the offense for which defendant was convicted occurred on April 12, 1972. The presentment by the grand jury was returned on October 31, 1972. Defendant was not arrested until January 20, 1973, and was released on bail two days later. His trial was set for March 27, 1973 and the record does not disclose why the case was not proceeded with on that date. On May 11, 1973, an order was entered adding the name of an additional witness .to the indictment. On July 25, 1973, motions were filed for psychiatric evaluation and to dismiss the cause because of denial of a speedy trial. On July 26, 1973, the motion to dismiss came on for a hearing and was overruled. Defendant’s motion for psychiatric examination at State expense was overruled but he was allowed additional time in which to make arrangements concerning private psychiatric examination. On that date the case was reset for trial on October 10, 1973. There is no indication in the record why the trial was not held on that date. The case ultimately came to trial on November 29, 1973.

Defendant says the delays, as related heretofore, resulted in a great deal of difficulty in remembering his actions or his whereabouts on April 12, 1972, because he had suffered a psychiatric illness in the interval between the alleged criminal act, the date of his arrest, and the eventual trial date.

The record indicates that the delay between the presentment and defendant’s arrest resulted, in some degree, because defendant could not be located for some length of time. It would also appear that the assertions of prejudice are somewhat diluted by the fact that defendant endeavored to obtain a further continuance on the trial date. He argues that his defense alibi was impaired by his inability to reconstruct his exact whereabouts on the date the offense occurred. However, his alibi defense was corroborated by the testimony of his brother, and his mother. It would seem that the proof offered by these witnesses carried as much weight as testimony of the defendant which could be no more than cumulative of what they had to say about the matter. There were serious discrepancies in their testimony as well as that of the defendant which was brought out in cross-examination by the State. The jury had the benefit of all of this testimony and has resolved those discrepancies by their verdict. The contentions raised by this assignment were resolved in Halquist v. State, Tenn.Cr.App., 489 S.W.2d 88, and the assignment must be overruled. Also see State v. McCullough, 4 Tenn.Cr.App. 272, 470 S.W.2d 50, and Beard v. State, Tenn.Cr.App., 485 S.W.2d 882; Farr v. State, Tenn.Cr.App., 506 S.W.2d 811; Marion v. United States, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468.

There were two eye witnesses to the sale of the heroin to a T.B.I. agent. Both positively identified the defendant in court as the individual making the sale. Defendant relied on an alibi defense through his own testimony and that of his relatives in an effort to show he was elsewhere on the date of the offense. There was ample evidence to justify the jury in reaching the conclusion which they did.

We have heretofore stated that our review of this record satisfies us that the evidence introduced at the trial does not preponderate against the verdict and in favor of defendant’s innocence and the final assignment must also be overruled.

Finding no error in the conduct of the trial proceedings the judgment is affirmed.

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


author: RUSSELL, Judge.

text:
    Abraham DAUGHERTY, Appellant, v. Ross SIMS, Sr., Sheriff, et al., Appellees.
    Court of Criminal Appeals of Tennessee.
    Feb. 12, 1975.
    Certiorari Denied by Supreme Court May 12, 1975.

      Kim Tollison, Legal Aid Clinic, University of Tennessee, Knoxville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Etrula R. Trotter, Asst. Atty. Gen., Nashville, for ap-pellees.
   OPINION

RUSSELL, Judge.

This is an appeal by appointed counsel from the summary dismissal of Abraham Daugherty’s habeas corpus petition.

Daugherty was convicted of obtaining by means of a worthless check goods and merchandise exceeding $100.00 in value and sentenced to three to six years. His pre-trial request for appointed counsel was allegedly denied, and he represented himself. He complains of the denial of counsel, of the refusal of a continuance, of the use of perjured testimony against him, and of the denial of a free transcript. This record does not contain his motion for a new trial, but does reflect that it was overruled on October 4, 1974 and an appeal in the nature of a writ of error granted. The trial judge who dismissed this petition characterized the complaints herein as “practically identical to complaints made at the trial, considered in his motion for a new trial, and * * * now the subject matter of his appeal heretofore granted in his original cause” and dismissed the petition because the appeal was pending. A subsequent order, appointing counsel for this appeal, included an adjudication of indigency.

The present status of the direct appeal is not made completely clear in this record. We assume that it is being prosecuted, and that counsel has now been appointed to that end.

A petition brought under our Post-Conviction Procedure Act, by the express terms of T.C.A. § 40-3802, is seasonal only “after he has exhausted his appellate remedies or his time for appeal in the nature of a writ of error has passed and before the sentence has expired or has been fully satisfied”.

Affirmed.

MITCHELL and O’BRIEN, JJ., concur.


author: OLIVER, Judge.

text:
    Clifford Lee CRAIG, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    Dec. 4, 1974.
    Certiorari Denied by Supreme Court May 19, 1975.

      Howell G. Clements, Grant, Clements & Bowen, Chattanooga (Appointed), for plaintiff in error.
    David M. Pack, Atty. Gen. of Tennessee, R. Jackson Rose, Asst. Atty. Gen., Nashville, Steve Bevil, Robert J. Batson, Asst. Dist. Attys. Gen., Chattanooga, for defendant in error.
   OPINION

OLIVER, Judge.

Indigent and represented by court-appointed counsel below and here, the defendant Craig, convicted of robbery under an indictment charging him with armed robbery and sentenced to not less than five nor more than 12 years in the penitentiary (TCA § 39 — 3901), has perfected an appeal in the nature of a writ of error to this Court.

By his fourth Assignment of Error, Craig assails his conviction upon the basis that the evidence is insufficient, taking the innovative position that it showed he “was either guilty of or innocent of the alleged crime of armed robbery as there was no evidence introduced that the defendant was guilty of simple robbery.”

So, it is necessary that we carefully review and examine the evidence, and in doing so we must adhere to the historic legal principles governing appellate review of the evidence in criminal cases. Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799; McGill v. State, 4 Tenn.Cr.App. 710, 475 S.W.2d 223.

In summary, the material evidence obviously accredited by the jury shows that on the day in question the defendant went to the “Ma and Pa” grocery store in Chattanooga, owned and operated by Mr. and Mrs. William Bell, on three different occasions, buying a soft drink the first time, a package of soap powder the second time, and returned a few minutes later and exchanged the soap powder for another brand; that he had also spent some time sitting outside the store earlier in the day; that he returned just before closing time and asked for some beer and potato chips or pretzels; that Mrs. Bell then became suspicious that the defendant might be preparing to rob the store and told her husband to call their daughter; that the defendant stopped Mr. Bell from using the telephone by striking him and pointing a gun at him and demanding money, and fired the gun at him although no bullet hole or shell casing was found; that Mr. Bell then ran from the store and into the flower shop next door to call the police, but the proprietor of that store had already done so; that after Mr. Bell left the store the defendant demanded money from Mrs. Bell; and that she gave him some money, and he demanded more and she threw at him the remainder of the money that was in the cash register, and he stooped over and picked it up and ran from the store. Investigating police officers found the defendant’s wallet on the floor of the grocery store some three or four feet from the cash register, and his fingerprint was found on a bag of pretzels he brought to the cash register at the time of the robbery. Mr. Bell picked the defendant’s picture from a group of five pictures brought to the store an hour later by the police, and that evening he identified the defendant in a line-up at the police station.

Relying upon the defense of alibi, the defendant did not testify at his trial and rested his case upon the testimony of his mother, his step-father, and two of his brothers to the effect that he was at home watching a basketball game on television during the time of the robbery. They also testified that he had told them of losing his wallet two or three days before the crime was committed.

Unquestionably, the defendant has failed to carry his burden of demonstrating here that the evidence preponderates against the verdict of the jury finding him guilty of robbery. It is no basis for complaint that a jury, for some unfathomable reason, elects to find a defendant guilty of a lesser grade of an offense upon proof unquestionably establishing his guilt of a higher grade. T.C.A. §§ 40-2520, 40-2521; Jones v. State, 200 Tenn. 429, 292 S.W.2d 713; Reagan v. State, 155 Tenn. 397, 293 S.W. 755; Howard v. State, Tenn.Cr.App., 506 S.W.2d 951.

The defense of alibi presented an issue of fact determinable by the jury, as the exclusive judges of the credibility of the witnesses testifing in support of that defense and of the weight to be given their testimony. Jones v. State, 2 Tenn.Cr.App. 160, 452 S.W.2d 365, and authorities therein cited. By its verdict the jury rejected the defendant’s alibi defense in this case, and upon this record we cannot say that the evidence preponderates against the jury’s decision upon that issue.

What we have said about the robbery also demonstrates how untenable is the defendant’s first Assignment complaining that over objection the trial judge admitted testimony about his encounter with Mr. Bell. As noted, the defendant drew a gun on Mr. Bell and demanded money, struck him on the head or face and stopped him from using the telephone and fired the gun in his direction. Patently, that was part and parcel of the robbery of the store owned by Mr. and Mrs. Bell and operated by them as a family enterprise, even though the indictment charged that he robbed her and the proof shows that after Mr. Bell left the store to call the police the defendant forced Mrs. Bell to give him the money in the cash register. Of course, the question raised with respect to the admission of that evidence is that it prejudicially violated the general rule precluding admission of evidence of other crimes not charged in the indictment. As the trial court held in overruling the defendant’s objection, a recognized exception to the rule just stated is that evidence of another and distinct crime is admissible if it was committed as a part of the same transaction and forms part of the res gestae. Stated in another way, the rule is that acts which are res gestae are admissible, even though they may show the commission of another crime by the accused. Coffman v. State, 3 Tenn.Cr.App. 634, 466 S.W.2d 241 and authorities therein cited.

Also without any foundation is the second Assignment charging the trial judge erroneously instructed the jury that armed robbery was punishable by death by electrocution. In the course of the charge the judge read T.C.A. § 39 — 3901 as follows:

“Robbery is the felonious and forcible taking from the person of another, goods or money of any value, by violence or putting the person in fear. Every person convicted of the crime of robbery shall be imprisoned in the penitentiary not less than five nor more than fifteen years; provided, that if the robbery be accomplished by the use of a deadly weapon the punishment shall be death by electrocution, or the jury may commute the punishment to imprisonment for life, or for any period of time not less than ten years.”

This trial was on October 25, 1973. At that time, by reason of the unconstitutionality of Chapter 192 of the Acts of 1973 (State v. Hailey, Tenn., 505 S.W.2d 712), which in Section 4 eliminated the capital punishment provision, T.C.A. § 39-3901 as read to the jury by the trial judge was the statutory law of this State, with one exception. Capital punishment had been outlawed by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (June 29, 1972). Accordingly, the trial judge went on to say to the jury, “The penalty of death by electrocution may not be considered as punishment for this crime.”

Moreover, needless to add, the jury did not impose the death penalty.

There is no merit in the defendant’s Assignment that the judge improperly commented on defense counsel’s argument and that the Attorney General in effect argued or commented on the defendant’s failure to take the witness stand. During his argument to the jury, defense counsel said:

“Now you may ask, well, now why didn’t you put him on the stand. I think that the judge will charge you that there’s a presumption of innocence and he doesn’t have to take the stand and you’re not to consider this, but I believe in your sub-conscience that you do consider this. And I tell you why I didn’t put him on the stand is because really there’s nothing he could have added to his family. They all testified that during that period of time in the evening that he was at home all that day.”

Then one of the Assistant District Attorneys General made the following statement in his argument:

“Mr. Clements gets up here and says, no, these four witnesses that I’ve put on here, who do not have records when they take the stand, I can put them on. They tell you that he was at home, and I’m not going to put my man up here because, well, here’s why. Use your common sense, ladies and gentlemen—

Then the following colloquy occurred between the court and the Assistant District Attorney General:

“THE COURT: (Interposing) Just a moment; let me interrupt so we won’t get into what might well be an error. Even though you didn’t object to Mr. Clements referring to reasons why he didn’t put his man on, I would have sustained such objection, because it’s not, it would not be a matter which should have been argued to the jury, and certainly if the State gets into any counter argument on that, I’m afraid we’d be getting into reversible error, so let’s avoid that, if that’s what I felt like you were about to get into—
MR. BEYIL: (Interposing) Well, Your Honor, I just felt like he opened the door.
THE COURT: Yes, but I’m going to close it.
MR. BEVIL; All right, sir.”

In the charge the court instructed the jury:

“A defendant is not required to testify on his own behalf, and his failure to do so cannot be considered for any purpose against him nor can any inference be drawn from such failure to testify.”

While we deprecate the remarks of defense counsel and the Assistant District Attorney General with reference to the failure of the defendant to testify, in view of the court’s instruction to the jury on the subject we are satisfied that the minds of the jurors were not corruptly influenced against the defendant. There is a presumption that the jury does not disregard the trial court’s instructions. Howard v. State, Tenn.Cr.App., 501 S.W.2d 573; Klaver v. State, Tenn.Cr.App., 503 S.W.2d 946; O’Brien v. State, 205 Tenn. 405, 326 S.W.2d 759. There is nothing in this record even suggesting that the jury disobeyed the court’s instructions.

After careful consideration, we must reject as groundless the defendant’s remaining Assignments, viz. that the court erred in failing to charge his identity must be proved beyond a reasonable doubt, in allowing an FBI fingerprint expert to testify because his name was not listed on the indictment, and that the court erred in charging the law relative to alibi because this shifted the burden of proof to the defendant.

Affirmed.

DWYER and RUSSELL, JJ., concur.


author: PER CURIAM.

text:
    A. K. MEADOWS, Petitioner, v. James A. GREEN et al., Respondents.
    No. B-5111.
    Supreme Court of Texas.
    June 18, 1975.
    Rehearing Denied July 16, 1975.
    Louis M. Moore, Houston, for petitioner.
    Fulbright & Jaworski, Thomas P. Sart-welle, Houston, for respondents.
   PER CURIAM.

James A. Green, Jr., and A. K. Meadows entered into a custom brokerage house business in Houston in 1967. Disagreements arose over whether Meadows was a partner or an employee and whether or not Meadows had used business funds to pay personal debts. The business relationship was terminated in 1969. Green reported to the Harris County District Attorney’s office that Meadows was his employee and that he had misapplied company funds. The district attorney presented this matter to the grand jury which returned two felony indictments for embezzlement. Meadows was tried and acquitted.

This suit was then filed by Meadows for malicious prosecution and a partnership accounting. The jury found that the business was a partnership; Green did not relate fairly and honestly all material facts about the business relationship to the district attorney’s office; the prosecution was instituted by or through Green’s aid and cooperation; Green acted without probable cause and with malice; Meadows was innocent; and substantial damages. Judgment was entered for Meadows for $27,921.35. The Court of Civil Appeals reversed and rendered as to the action for an accounting, which is not before us, and reversed and remanded the cause of action for malicious prosecution. 517 S.W.2d 799. We reverse and remand to the Court of Civil Appeals.

The Court of Civil Appeals held that Green failed to preserve any challenges to the factual sufficiency of the evidence and that there is some evidence to support the jury’s findings of the necessary elements of the cause of action. However, the court found that Meadows failed to prove by clear and convincing evidence that Green was actuated by malice in presenting the matter to the district attorney and therefore remanded the cause to the District Court.

The points of error attacking factual sufficiency of the evidence before the Court of Civil Appeals are in proper form, but the only complaints in the trial court were Green’s contentions that error was committed in submitting issues to the jury and in rendering judgment on the verdict. Those complaints do not go to the great weight and preponderance, or factual sufficiency, of the evidence. Chemical Cleaning, Inc. v. Chemical Cleaning & Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970); McDonald v. New York Central Mutual Fire Ins. Co., 380 S.W.2d 545 (Tex.1964). The Court of Civil Appeals was correct in holding that no factual sufficiency points were before the court.

In reaching its decision the Court of Civil Appeals has sought to apply a third standard of reviewing the evidence presented at trial—the “clear and convincing” standard. In Texas there are but two standards by which evidence is reviewed: factual sufficiency and legal sufficiency. The requirement of clear and convincing evidence is merely another method of stating that a cause of action must be supported by factually sufficient evidence. Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960); Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950).

There being no proper assignments of error before the Court of Civil Appeals challenging the verdict because of the factual sufficiency of the evidence, it was error to reverse and remand the cause for retrial on that ground.

Since the decision of the Court of Civil Appeals is in conflict with our holding in Omohundro v. Matthews, supra, that clear and convincing evidence is but another way of describing factual sufficiency of the evidence, under Rule 483, Texas Rules of Civil Procedure, we grant writ of error and, without hearing oral argument, reverse the judgment of the Court of Civil Appeals and remand the cause to that court for determination of the assignments of error asserting excessiveness of the damages.


author: ROBERTS, Judge. ONION, Presiding Judge

text:
    Jimmy Ray MITCHELL, Appellant, v. The STATE of Texas, Appellee.
    No. 49459.
    Court of Criminal Appeals of Texas.
    June 25, 1975.
    Rehearing Denied July 9, 1975.

      Marvin Collins & Bill R. Magnussen, Fort Worth, for appellant.
    Jim D. Yollers, State’s Attv., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for murder with malice wherein the jury assessed appellant’s punishment at 100 years’ confinement.

The evidence showed that appellant and five others, two other men and three women, were at the Vest Arco Station in Joshua at 6:45 p.m. on January 26, 1973. Appellant’s companions left the station and waited in their car about 150 yards down the highway while appellant and one other companion robbed the station attendant. In the process, the evidence showed, appellant shot and killed the attendant and wounded a customer present at the time. The wounded customer obtained assistance at a nearby grocery store and appellant and his companions were apprehended a short time later near Burleson. They were later identified by the wounded customer and by another customer who had left the station immediately prior to the robbery.

In his first ground of error, appellant complains that the trial court erred in permitting State’s witness Bill Waits to testify at the punishment hearing that appellant’s reputation in his community for being a peaceful and law-abiding citizen was bad. Waits was Chief of Police of Joshua, where the offense occurred. Appellant contends that Waits was not qualified to testify as to appellant’s reputation for two reasons:

(1) The officer’s opinion as to appellant’s bad reputation was based solely on the facts of the case for which he was being tried; and
(2) The officer had never discussed appellant’s reputation with anyone.

In perfecting his ground of error, appellant took Chief Waits on voir dire and ascertained that the Chief’s knowledge of appellant’s reputation was based on the following. Waits had never heard of appellant before the date of the offense, nor did he know in what part of Fort Worth the appellant lived. His knowledge of appellant’s reputation was based in part on the facts of the offense for which appellant was being tried and in part on a copy of appellant’s “rap sheet” which Waits had received from the Fort Worth Police Department. Waits had never discussed appellant’s reputation with anyone who knew appellant, either before or after the offense involved.

In Stephens v. State, 128 Tex.Cr.R. 311, 80 S.W.2d 980 (1935), this Court laid down the following rule with regard to testimony as to an appellant’s bad reputation:

“. . . the fact that he was indicted in the case on trial and that by reason of said charge alone his reputation at the time of his trial was bad, should not be provable when such reputation is based solely on the discussion of the alleged events for which he is on trial. .
If subsequent to the return of an indictment against a defendant there arose a discussion of his reputation based on matters other than the present indictment, proof of such general reputation might not be inhibited . . . .” Stephens, supra, 80 S.W.2d 982.

The first requirement of Stephens — that bad reputation testimony not be based solely on the offense for which appellant is on trial — -has been reiterated many times by this Court. Clark v. State, 500 S.W.2d 469 (Tex.Cr.App.1973); Nichols v. State, 494 S.W.2d 830 (Tex.Cr.App.1973); Twine v. State, 475 S.W.2d 774 (Tex.Cr.App.1972); Frison v. State, 473 S.W.2d 479 (Tex.Cr.App.1971); Martin v. State, 449 S.W.2d 257 (Tex.Cr.App.1970). Although appellant strenuously urges this ground, the record clearly indicates that Chief Waits’ knowledge of appellant’s bad reputation was based on his “rap sheet” as well as on the facts of the offense for which he was on trial.

The requirement that a reputation witness have discussed the bad reputation of the accused has received somewhat less attention from this Court. The requirement is understandable, however, in light of the fact that reputation evidence is, of necessity, based upon hearsay. Sanchez v. State, 398 S.W.2d 117 (Tex.Cr.App.1966). Without the requirement of discussion with other members of an accused’s community, a witness’ testimony concerning the accused’s reputation for being a peaceful and law-abiding citizen would be nothing more than an inadmissible opinion. Many cases of this Court have addressed themselves to the issue of when such a discussion of an accused’s reputation should take place. Because of the Stephens requirement that reputation not be based on the facts of the instant offense, many appellants have urged that discussions of an accused’s reputation had to have taken place before the date of the offense for which he was on trial. But this Court has made it clear that such discussions of an accused’s bad reputation need not take place before the date of the alleged offense, as long as they included matters other than the crime for which the accused was on trial. Twine v. State, supra; Frison v. State, supra; Broadway v. State, 418 S.W.2d 679 (Tex.Cr.App.1967).

In Weatherall v. State, 159 Tex.Cr.R. 415, 264 S.W.2d 429 (1954), the State’s character witness was held not to be qualified to testify as to the appellant’s bad reputation because the witness’ “testimony in this regard was not based on anything he had heard from other persons.” See also Carver v. State, 510 S.W.2d 349, 355 (Tex.Cr.App.1974) which distinguishes Weather-all. Likewise in Broussard v. State, 134 Tex.Cr.R. 1, 114 S.W.2d 248 (1938), the State’s witness was held to be unqualified to testify because “he had never heard any person say that appellant’s reputation in the respect mentioned was bad.” The rules were summarized in Gilson v. State, 140 Tex.Cr.R. 345, 145 S.W.2d 182 (1940) as follows:

“A witness who testifies that he knows the general reputation of the accused as a peaceable and law-abiding man should be permitted to testify that such general reputation in that respect is good, notwithstanding such witness states that he has never heard that reputation discussed in the community. See Henderson v. State, Tex.Cr.App., 39 S.W. 116. A different rule prevails where the witness testifies that the reputation is bad. In such event, if the witness states that he has never heard any person say that the reputation of the accused was bad, he is not qualified to speak. Broussard v. State, 134 Tex.Cr.R. 1, 114 S.W.2d 248.”

In the case at bar, it appears that Chief Waits, although basing his knowledge of appellant’s bad reputation on his “rap sheet” as well as the facts of the offense for which he was on trial, never discussed appellant’s reputation with anyone else. In this connection, the case of Martin v. State, 449 S.W.2d 257 (Tex.Cr.App.1970) is very close in point. There, the police officer witness stated on cross-examination that his knowledge of appellant’s bad reputation was based on the facts of the case on trial and on appellant’s “past record,” and that he had not heard appellant’s reputation discussed before the date of the offense. The officer was not disqualified, however, when it was established on re-direct that he had discussed appellant’s reputation with other officers after the date of the offense. Outside of the context of the crime involved in the instant case, it does not appear that Chief Waits ever discussed appellant’s bad reputation with anyone before or after the offense. Under the cases that have been cited, therefore, Waits was not qualified to testify that appellant had a bad reputation.

We have concluded, however, that the error in permitting the witness to testify was harmless. Waits’ testimony was extremely terse, without embellishment. Moreover, the record shows that he was followed at the punishment phase by three other witnesses from law enforcement agencies in or near Johnson County who gave, without objection, testimony identical to that of Chief Waits’. We conclude that the effect of Waits’ testimony was harmless beyond a reasonable doubt.

Appellant next complains of the trial court’s failure to grant a change of venue from Johnson County. The trial took place in the 18th District Court of Johnson County, in Cleburne; the offense took place in the town of Joshua and appellant was arrested in Burleson, both in Johnson County. At the hearing on appellant’s motion for a change of venue, a private investigator testified for appellant that almost all of the 35-50 people he had interviewed said that appellant could not get a fair trial in Johnson County, but he could only obtain affidavits to that effect from two people. The evidence also showed that Johnson County had 47,000 residents, 20,000 of whom were voters. Two newspaper publishers testified that their papers had county-wide circulations of 8,000 daily and 3,000 weekly, respectively, but appellant was able to show only one or two front page stories concerning the crime at issue in each newspaper. Almost every witness who was called by either party to give evidence at the hearing testified that he thought appellant could get a fair trial in Johnson County.

The applicant for a change of venue has a heavy burden of proving the existence of such prejudice in the community that the likelihood of obtaining a fair and impartial jury is doubtful. Absent such a showing, the trial court is well within the limits of his discretion in denying the change of venue. Ward v. State, 427 S.W.2d 876 (Tex.Cr.App.1968). Appellant has not shown that he was required to exhaust his challenges and accept an objectionable juror; nor is there a transcription of the voir dire examination of the prospective jurors so that this Court might inspect it for evidence of prejudice in the community. We are therefore unable to conclude that the trial judge abused his discretion in denying the change of venue. Brantley v. State, 522 S.W.2d 519 (Tex.Cr.App.1975); Jones v. State, 489 S.W.2d 618 (Tex.Cr.App.1973).

Appellant further complains that the trial court erred in permitting Chief Waits to testify as to the contents of a radio message he broadcast on the grounds it was hearsay based on hearsay. Waits testified at trial that Sylvia Montanez, a material witness, volunteered information to him at the scene of the crime. On the basis of such information, Waits testified, he broadcast on his two-way police radio the fact of the robbery and shooting, a description of the individuals believed responsible — three black males and three black females — and a description of the car they were driving.

Appellant objected in the course of this testimony that Waits was being permitted to give hearsay information based on hearsay information. We note, however, that Waits was not relating a message he had received on the police radio but, rather, he was testifying to what he transmitted on the radio. Sowers v. State, 160 Tex.Cr.R. 456, 272 S.W.2d 119 (1954); Bowman v. State, 504 S.W.2d 880 (Tex.Cr.App.1974); Mejia v. State, 505 S.W.2d 532 (Tex.Cr.App.1974), and Cozby v. State, 506 S.W.2d 589 (Tex.Cr.App.1974) are thus inapplicable. All four cases involved testimony of information received on police radios. We need not reach that issue. The record shows that the witness Sylvia Montanez was permitted to testify at length concerning her observations of appellant, his companions, and the car they were driving immediately prior to the commission of the offense. Thus the essence of the information earlier objected to later came in without objection, and any error is waived or at least rendered harmless. 5 Tex.Jur.2d, Appeal and Error— Criminal, Sec. 446 (1959). In light of the witness Montanez’ later testimony, it is impossible to see how appellant was harmed by Chief Waits’ recitation of his radio broadcast. Alvarez v. State, 511 S.W.2d 493 (Tex.Cr.App.1974) (opinion on State’s Second Motion for Rehearing).

Appellant has presented one final ground of error in a pro se brief submitted during the week of oral argument in this case. We shall briefly discuss his contentions.

Appellant complains that an eyewitness to the shooting was shown and identified appellant’s photograph while appellant was in custody and could have been placed in a line-up. He also complains of the trial court’s failure to hold a hearing outside the presence of the jury on the identification issue.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court indicated its preference for line-up identifications over photographic identifications but declined to place such preference on a constitutional footing. Texas courts have followed Simmons, holding that photographic identification of an accused before trial does not automatically taint an in-court identification. Johnson v. State, 494 S.W.2d 870 (Tex.Cr.App.1973). And see United States v. Broadway, 477 F.2d 991 (5th Cir. 1973) where a pre-trial photographic identification that was not shown to be impermissibly suggestive was approved even though the defendant was in custody and readily available for line-up identification.

The record in the instant case will not support appellant’s contentions. There is no mention of the alleged pre-trial photographic identification, or of the procedures employed therein. And the in-court identification of appellant by the eyewitness to the shooting was clearly shown to be based on the witness’ independent recollection of the events in question. Thus, no harm was shown from any pre-trial identification procedures. Nor did appellant object at the time of the in-court identification and request that its admissibility be ascertained outside of the presence of the jury. Any defect in the pre-trial identification procedures was thus waived. Evans v. State, 444 S.W.2d 641 (Tex.Cr.App.1969); Gleffe v. State, 509 S.W.2d 323 (Tex.Cr.App.1974).

Appellant’s grounds of error are overruled and the judgment is affirmed.

ONION, Presiding Judge

(concurring).

I concur in the result of the majority’s opinion reluctantly because of the disposition of ground of error # 1.

Chief of Police of the City of Joshua Bill Waits, who was a material witness for the State at the guilt stage of the trial, was recalled by the State at the penalty stage of the trial to testify that the appellant’s reputation for being a peaceful and law-abiding citizen was “bad.” When the question was propounded to him, the appellant’s counsel asked to have the jury removed and developed in their absence that Waits had never heard of the appellant before the date of the offense and had not discussed his reputation with anyone. It appeared from his testimony in the absence of the jury that’ his reputation testimony was based on the details of the offense charged and on the “rap sheet” or police records supposedly those of the appellant received from the Fort Worth Police Department.

It was clear that Waits was not qualified as a reputation witness and, despite the fact that the appellant objected and called this to the court’s attention, the objection was overruled, and Waits was permitted to then testify for the first time in the presence of the jury that appellant’s general reputation in the community in which he lived for being a peaceful and law-abiding citizen was “bad.”

This was error and should not have been permitted, but I reluctantly agree that the error is harmless in view of the overwhelming evidence of guilt and circumstances surrounding the killing of the 17 year old service station attendant and the shooting of the 21 year old customer during the course of the robbery. The customer lived to testify and identify the appellant as the gunman who shot and killed the attendant and who subsequently shot the witness in the head.

The majority concludes that the error was harmless beyond a reasonable doubt because Waits’ testimony was terse and he was followed by three other law enforcement witnesses who gave testimony, without objection, that appellant’s reputation was “bad.”

I would caution against interpreting the majority’s opinion as meaning that in any case the State is entitled to one free unqualified reputation witness provided there are other reputation witnesses to the same effect whose testimony is unchallenged. Each case must stand on its own bottom. For the State to call a well-known, respected and popular citizen or law enforcement officer as a reputation witness knowing he is not a qualified witness while hoping to render any error harmless by calling other witnesses who are qualified would, in my opinion, be bad faith.

For the reasons stated, I concur.