author: BROCK, Justice.

text:
    STATE of Tennessee, Petitioner, v. Andrew MACKEY, Respondent.
    Supreme Court of Tennessee.
    June 20, 1977.

      Michael E. Terry, Asst. Atty. Gen., Nashville, for petitioner; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    Edward A. Love, Chattanooga, for respondent.
   OPINION

BROCK, Justice.

This is an appeal from a judgment and sentence of not less than one or more than two years in the state penitentiary on a plea of guilty to the charge of felonious escape. Two principal questions are presented: (1) whether the trial record adequately demonstrates that the guilty plea was voluntarily, understandingly, and intelligently made as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); and (2) whether evidence of defendant’s prior convictions and other alleged misconduct was admissible before the jury selected to determine the issue of punishment.

Andrew Mackey was charged with felonious escape from the custody of the Hamilton County sheriff while awaiting trial on charges of grand larceny, burglary, and possession of burglarious tools. Represented by appointed counsel, the defendant pleaded guilty to the charge, and requested that a jury be impanelled “to hear the evidence and fix the time of confinement” in the penitentiary.

The record discloses that the trial judge asked no questions of the defendant concerning his plea, and the defendant did not address the court. The total colloquy between the judge and the defendant was as follows:

“The Court: . . . How do you plead,
Mr. Mackey, how do you plead to the indictment?
“Mr. Mackey: Guilty.
“The Court: How?
“Mr. Mackey: Guilty.
“The Court: All right. . . ."

The record discloses a reference to a somewhat protracted discussion between the defendant and his lawyer as to whether defendant should plead guilty. This discussion, of course, was off the record; nothing is actually known regarding the import or content of the discussion.

Six months before this trial for felonious escape, defendant was convicted for armed robbery and rape, felonies committed the day following his escape. On the day of this trial, before defendant entered his plea of guilty to the charge of felonious escape, defense counsel made a motion in limine that the State be prohibited from introducing evidence of defendant’s convictions for the armed robbery and rape, apparently taking the position that such evidence was irrelevant to the determination of punishment for felonious escape. The trial judge declined to rule immediately on counsel’s motion but subsequently, over defense counsel’s objection, admitted into evidence court records of the convictions. At this juncture, defense counsel objected to the admission of defendant’s prior convictions on the premise that defendant had not taken the stand in his own defense and, hence, his character and reputation were not in issue.

During a recess of the hearing, Mackey allegedly attempted to escape once again. Testimony of the deputy sheriff regarding this attempt was also admitted into evidence over defense counsel’s objection.

Defendant Mackey never took the stand during the course of the hearing nor did counsel introduce any mitigating evidence in his behalf. No attempt was made to withdraw defendant’s plea of guilt.

The jury set defendant’s punishment for his admitted felonious escape at a minimum of one (1) year and a maximum of two (2) years in the penitentiary.

Defendant appealed to the Court of Criminal Appeals, assigning as error: (1) that the trial court admitted evidence of defendant’s convictions for armed robbery and rape; (2) that the trial court admitted testimony regarding defendant’s attempted escape during a recess of the trial; and (3) that defendant’s guilty plea was involuntary because he had not been advised by the trial judge that his prior convictions would be allowed in evidence.

The Court of Criminal Appeals determined that proof of defendant’s prior convictions was inadmissible but disposed of the case on grounds that the guilty plea was not voluntary under the authority of Boykin, supra. Finding that the trial judge made no affirmative investigation as to the voluntariness or intelligence of defendant’s guilty plea, the Court of Criminal Appeals vacated defendant’s guilty plea and reversed and remanded the case for a new trial.

We granted the State’s petition for cer-tiorari review.

I

As the United States Supreme Court recognized in Boykin, supra, “a plea of guilty is more than an admission of conduct; it is a conviction." When a plea of guilty is entered in a criminal trial, the defendant simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to a trial by jury, and his right to confront his accusers. Moreover, in this State, as we hold infra, he also waives the right to exclude from the jury determining his punishment evidence of his prior convictions. For this waiver to be valid under the due process clause of the Fourteenth Amendment, it must be “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Our system of justice cannot tolerate the presumption that a defendant voluntarily relinquished such fundamental rights. Therefore, the record of acceptance of a defendant’s plea of guilty must affirmatively demonstrate that his decision was both voluntary and knowledgeable, i. e., that he has been made aware of the significant consequences of such a plea; otherwise, it will not amount to an “intentional abandonment of a known right.”

Boykin concerned a defendant who had pleaded guilty in a state court to five armed robbery indictments and thereafter received the death penalty. At arraignment, “so far as the record shows, the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court.” Thereafter, as required by Alabama law, a jury was impanelled to fix the penalty, and the prosecution presented its case to this jury “largely through eyewitness testimony.” Taking an automatic appeal to the Alabama Supreme Court, petitioner argued unsuccessfully that a sentence for death for robbery was cruel and unusual punishment, but three members of the Alabama court dissented on the ground that the record was inadequate to show that petitioner had intelligently and knowingly pleaded guilty.

The United States Supreme Court reversed, concluding that it “. . . was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.” The Court clearly stated its position: “We cannot presume a waiver of [. . .] important federal rights from a silent record.”

The Court further stated:

“What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought (citations omitted), and forestalls the spin-off of collateral proceedings that seek to probe murky memories.” 89 S.Ct. at 1712-1713.

The State contends that the Boykin issue was not properly raised before the Court of Criminal Appeals or before this Court, but we do not agree. On appeal, the defendant’s brief contained the following assignment of error:

“The defendant was not fully advised by the judge of the consequences of pleading guilty before the jury in that he was not aware that the crimes for which he had been convicted would be allowed into evidence at his trial, and therefore his guilty plea was not a knowing, voluntary and intelligent consent to let the jury decide his punishment.”

It thus appears that the defendant did assign as error the voluntariness and understanding of his guilty plea, though the assignment narrows the grounds for the error.

Whether properly assigned or not, appellate courts of this State may properly consider plain error upon the record. Rule 15(2), Tennessee Supreme Court Rules; Davidson v. State, 223 Tenn. 193, 443 S.W.2d 457 (1969); Baldwin v. State, 213 Tenn. 49, 372 S.W.2d 188 (1963); T.C.A. § 40-3409.

In our opinion, the record fails to disclose compliance with the requirements of the Boykin decision, but, we are not content to allow the issue to rest there. This Court in the exercise of its supervisory power to insure that the courts of this State afford fairness and justice to defendants in criminal cases may require stricter standards than those mandated by the Boykin decision. Smith v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959). In the exercise of that jurisdiction, we hold that trial judges in accepting pleas of guilty in criminal cases must adhere, substantially, to the following procedure, to wit:

A. Before accepting a plea of guilty, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:

(1) The nature of the charge to which the plea is offered, and the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and, if applicable, that a different or additional punishment may result by reason of his prior convictions or other factors which may be established in the present action after the entry of his plea; and
(2) If the defendant is not represented by an attorney, that he has a right to be represented by an attorney at every stage of the proceeding against him, and if necessary, one will be appointed to represent him; and
(3) That he has a right to plead not guilty or to persist in that plea if it has already been made, and, that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and
(4) That if he pleads guilty, there will not be a further trial of any kind except to determine the sentence so that by pleading guilty he waives the right to a trial; and
(5) That if he pleads guilty, the court or the state may ask him questions about the offense to which he has pleaded, and if he answers these questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury or false statement, and, further, that, upon the sentencing hearing, evidence of any prior convictions may be presented to the judge or jury for their consideration in determining punishment.

B. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant’s willingness to plead guilty results from prior discussions between the District Attorney General and the defendant or his attorney.

C. Notwithstanding the acceptance of a plea of guilty, the court shall not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.

D. A verbatim record of the proceedings at which the defendant enters a plea shall be made and, if there is a plea of guilty, the record shall include, without limitation, (a) the court’s advice to the defendant, (b) the inquiry into the voluntariness of the plea including any plea agreement and into the defendant’s understanding of the consequences of his entering a plea of guilty, and (c) the inquiry into the accuracy of a guilty plea.

In the instant case, the prior convictions of the defendant would not have been admissible before the jury if the defendant had entered a plea of not guilty but, as we hold infra, such convictions were admissible in evidence upon a plea of guilty. There can be no doubt that the admission of such evidence is calculated to have the effect of enhancing the punishment; therefore, the defendant should have been informed by the trial judge that such evidence would be admissible as a consequence of his entering a plea of guilty. Moreover, the record should affirmatively disclose that such advice was imparted to the defendant before his plea of guilty was accepted. Since the record in the instant case is silent in this respect, we cannot presume that the defendant was so advised, but, on the contrary, must conclude that the defendant entered a plea of guilty without understanding the consequences in this respect of such a plea. Accordingly, we affirm the judgment of the Court of Criminal Appeals, reversing the conviction and remanding the case to the trial court for a new trial.

II

Was it error for the trial court, after the defendant had entered a plea of guilty, to admit evidence before the jury of his prior convictions? We hold that it was not.

In Tennessee, the jury is required to fix the sentence in all cases when the punishment is confinement in the penitentiary. See T.C.A. §§ 40-2707 and 40-2310. When the charged offense is a misdemean- or, punishable by imprisonment in the county jail or workhouse, the term of imprisonment is fixed by the judge, T.C.A. § 40-2704, but if the defendant pleads not guilty to the misdemeanor, sentencing by the jury as part of its verdict is available at the defendant’s option.

At common law, the jury returned a verdict of guilty or not guilty; the power to sentence rested with the court. After the jury returned a verdict of guilty, the court heard additional character evidence before determining the sentence. In many jurisdictions, distrust of a powerful judiciary motivated a statutory transfer of the power of sentencing from the court to the jury. Tennessee enacted such a statute in 1829, Acts of 1829, ch. 23, sec. 76, amending the penal laws two years later to provide for jury sentencing upon a plea of guilty. Acts of 1831, ch. 83, § 1.

Much of our case law dealing with evi-dentiary questions must be read with an appreciation of the distinctions implicit in the jury sentencing statute. Thus, in Cason v. State, 160 Tenn. 267, 23 S.W.2d 665 (1930), the defendant was tried for public drunkenness on a plea of not guilty. He was found guilty by the jury and the court imposed a fine and workhouse sentence. After the jury’s verdict, several adverse witnesses were called and examined by the court and testified that defendant had the reputation of a bootlegger. Defendant objected to the admission of their testimony. The Court replied:

“It is now well settled that, where it devolves on the court to determine the amount of punishment, either on a verdict by a jury or on a plea of guilty, evidence may be received in aggravation or mitigation of the punishment. (Citing authorities.) The reason for the admission of such evidence is to enable the court to inform himself as to the character of the accused and the circumstances of the crime, so that he may be able to exercise his discretion intelligently and pronounce a just sentence; a privilege of his in the exercise of which he doubtless should use the utmost caution. The punishment should be proportioned to the offense, and should be made to fit the crime and not the offender. On a charge of drunkenness, the accused could not be punished for some other offense.” 23 S.W.2d at 667.

A cluster of confusing “bootleg” cases have followed Cason. Anderson v. State, 165 Tenn. 569, 56 S.W.2d 731 (1933); Cox v. State, 184 Tenn. 203, 197 S.W.2d 812 (1946); Courtney v. State, 185 Tenn. 247, 205 S.W.2d 752 (1947); McInturff v. State, 207 Tenn. 108, 338 S.W.2d 564 (1960); Vowell v. Tennessee, 207 Tenn. 598, 341 S.W.2d 735 (1960). In Anderson v. State, supra, the defendant pleaded not guilty to a violation of the prohibition statute. His reputation as a bootlegger was admitted into evidence but limited to the question of punishment. While citing Cason, supra, the Court observed that:

“. . . where the punishment is to be fixed by the jury, we have been unable to find any authority authorizing the introduction by the state of testimony as to the bad reputation of accused, where his character is not in issue, even though it be limited as to the amount of punishment, as was done in this case.” 56 S.W.2d at 732.

The Court apparently accepted the effectiveness of the trial court’s limiting instruction but held the reputation testimony error because of the lack of specific precedent.

The rule somehow distilled from this line of cases was stated by the Court in Vowell, supra:

“Since Anderson v. State (citation omitted) decided more than 25 years ago, it has been the established rule of this Court that where the defendant has not testified and has not put his character in issue, it is error to permit the State to prove that he has the reputation of being a ‘bootlegger * * * or a violator of the liquor laws.’ ” 341 S.W.2d at 737.

It may be doubted whether this “rule” or any other can be derived from a reading of the “bootleg” cases. Fundamental procedural distinctions are not dealt with satisfactorily. None deal with the jury sentencing problem with which we are concerned in the instant case, i. e., after a plea of guilty.

That Vowell does not state a settled rule of law on the subject under consideration is shown by the Tennessee cases involving habitual criminal statutes or other statutes providing for an enhanced penalty upon repeated convictions. These cases are well summarized in Harrison v. State, 217 Tenn. 31, 394 S.W.2d 713 (1965).

One other significant Tennessee case should be mentioned. In Knowles v. State, 155 Tenn. 181, 290 S.W. 969 (1927), the defendant pleaded guilty to embezzlement and his punishment fixed by the jury at 5-10 years. The State introduced no evidence upon which the jury might base their exercise of discretion in determining the period of punishment. Apparently, the jury simply heard the charge and returned the verdict. The Court determined that the legislative purpose of the statute providing for jury sentencing upon a plea of guilty was:

“. . .to vest in the jury the power to exercise a sound discretion impossible of intelligent exercise without a hearing of at least such of the evidence as might reasonably affect the judgment of the jury as to the proper degree ... of the punishment.” 290 S.W. at 969.

The Court reversed and remanded the case.

It appears that a majority of other jurisdictions considering this issue have adopted a policy of admitting evidence of prior convictions for consideration by the sentencing agency whether it be judge or jury. See Annotation, “Sentence — Other Offenses— Consideration,” 96 A.L.R.2d 768 (1964). As shown by Rojas v. State, Tex.Cr.App., 404 S.W.2d 30 (1966), the Texas courts admit evidence of prior convictions before the jury at a sentencing hearing, pursuant to the Texas Code of Criminal Procedure which provides:

“Regardless of whether the punishment be assessed by the judge or the jury, evidence may be offered by the State and the defendant as to the prior criminal record of the defendant, his general reputation and his character.” [Art. 37.07, § 2(b)]

The court said such evidence should go to the jury “. . .to protect the interests of the State, by preventing aggravated cases of crime to be covered up by the plea of guilty, so as to allow the criminal to escape with the minimum punishment fixed by law.” 404 S.W.2d at 34. See also Basaldua v. State, Tex.Cr.App., 481 S.W.2d 851 (1972).

For similar cases in other jurisdictions, see People v. Tolbert, 70 Cal.2d 790, 76 Cal.Rptr. 445, 452 P.2d 661 (1969) (statute allows evidence of “any facts in aggravation or mitigation of the penalty.”); Dudley v. State, 228 Ga. 551, 186 S.E.2d 875 (1972) (statute allows jury to hear evidence “in extenuation, mitigation and aggravation of punishment, including the record of any prior criminal convictions . . . .”); U.S. v. Dalhover, 96 F.2d 355 (7th Cir. 1938), cert. den. 305 U.S. 632, 59 S.Ct. 100, 83 L.Ed. 406; and other cases cited in 96 A.L.R.2d at 811, and in the State’s brief.

Although most of the cases from other jurisdictions are based upon statutory law, they are, nonetheless, useful. The above mentioned Annotation states that the “great majority” of jurisdictions hold that it is proper for a sentencing judge to consider a past criminal record, for the following reasons:

“(The cases) have declared that such practice is in keeping with the philosophy that the punishment should be suited to the offender as well as to the crime, and that the defendant is benefited and society protected, since a first offender is usually dealt with leniently, and deservedly severer measures are authorized in the case of a hardened criminal; and the arguments have been rejected that such practice involves double punishment for crimes for which the defendant has been previously convicted and punished, or violates his constitutional or fundamental rights, or that the rule ordinarily excluding evidence of unrelated other offenses at a criminal trial of the guilty issue is applicable.” 96 A.L.R.2d at 772. And see 21 Am.Jur.2d, Criminal Law, § 585.

We are of the opinion that the proper procedure to be followed at a hearing to determine the sentence following a plea of guilty is as follows:

A. Evidence may be presented by the defendant and by the State with respect to any matter relevant to the issue of sentence.

B. Matters relevant to the issue of sentence shall include but not be limited to the following:

(1) Matters of fact concerning the offense and the circumstances surrounding it, not limited to aspects developed for the record as part of the determination of guilt;
(2) a full description of any prior criminal record of the defendant, his reputation and character;
(3) a description of the educational background of the defendant;
(4) a description of the employment background of the defendant, including any military record and including present employment status and capabilities;
(5) the social history of the defendant, including family relationships, marital status, interests and activities, residence history, and religious affiliations;
(6) the defendant’s medical history, and, if available, a psychological or psychiatric report, copies of which shall be furnished adversary counsel immediately upon acceptance of a plea of guilty; and
(7) supplementary reports from clinics, institutions, and other social agencies with which the defendant has been involved.

Any such evidence that the court deems to be trustworthy and probative may be received, regardless of its admissibility under exclusionary rules of evidence.

It is our hope that this procedure will improve the administration of justice and will align this State with the modern philosophy that punishment should fit the offender as well as the crime. This concept was well stated by the United States Supreme Court recently as follows:

“The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender. This whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions — even for offenses today deemed trivial. Today’s philosophy of individualizing sentences makes sharp distinctions for example between first and repeated offenders.” Williams v. New York, 337 U.S. 241, 247-8, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949).

Such a procedure violates no constitutional right of the defendant. Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Crampton v. Ohio, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971); U. S. v. Dalhover, supra.

Accordingly, we hold that the admission by the trial judge of evidence of the defendant’s prior convictions and of his attempt to escape from custody during the instant trial was entirely proper and that the Court of Criminal Appeals erred in holding to the contrary.

The judgment of the Court of Criminal Appeals is vacated and that of the trial court is reversed and the cause is remanded for a new trial, consistent with this opinion.

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

      . See footnote 2.

      . It should be kept in mind that we do not here deal with the admissibility for impeachment purposes of evidence of prior convictions or specific acts of a defendant who becomes a witness. The rules governing that situation were recently laid down in State v. Morgan, Tenn., 541 S.W.2d 385 (1976) in a definitive opinion written for the Court by Mr. Justice Fones. Neither do we deal with the problem posed when evidence of the commission by the defendant of other crimes is offered as being relevant to an issue raised in the case on trial. See Collard v. State, Tenn., 526 S.W.2d 112 (1975), opinion by Mr. Chief Justice Cooper.

      . The procedure herein specified does not apply to “agreed cases” which continue to be governed by T.C.A., § 40-2310.


source: Caselaw Access Project

author: HENRY, Justice.

license: Public Domain

text:
    Howard Able SAMPSON, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    July 5, 1977.
    Knox Bigham, Lewisburg, for petitioner.
    Robert E. Kendrick, Deputy Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, for respondent; Brooks McLemore, Atty. Gen., Nashville, of counsel.
   OPINION

HENRY, Justice.

In this criminal action, involving a conviction for murder in the second degree, we are called upon to determine whether to apply the ALI Model Penal Code test of criminal responsibility, as announced in Graham v. State, 547 S.W.2d 531 (Tenn.1977), to a criminal conviction pre-dating Graham. We conclude that Graham is applicable and reverse and remand for a new trial.

I.

Pertinent Factual Background

The defendant pleaded not guilty by reason of insanity.

We omit any discussion of the evidence relating to the commission of the crime, because in our grant of certiorari we restricted consideration to the issues dealt with in this opinion. Suffice it to say, defendant killed a Lewisburg police officer under circumstances which would have justified a verdict of murder in the first degree, but for the question of mental competence.

Counsel for the petitioner concedes in brief and at the bar of this Court during the course of oral argument that the defendant knew right from wrong and that the evidence, when tested by M’Naghten, is sufficient to sustain a conviction. He insists, however, that the rejection of M’Naghten, and the application of the ALI Model Penal Code, as adopted in Graham, supra, results in the evidence preponderating against the verdict. Perhaps so, but subject to the proposition that the question is one for the determination of the jury.

Under the proof, and under either test, the jury would have been warranted in returning a verdict of guilty, or one of not guilty by reason of insanity. The only difference is the guidance given by the trial judge in his instructions.

We turn now to the testimony as it relates to mental capacity. First, it should be noted that the proof shows that the defendant knew the difference between right and wrong. It is inferable that he knew the nature and quality of the act. It is impossible, however, to read this record without being convinced that this defendant suffered from mental difficulties.

The testimony is replete with examples of his fears, delusions, bizarre thoughts, odd actions, and disturbed and agitated state of mind. He had harassed the police department with reports of people trying to poison him. He seemed to have a fixation about poison, much testimony being offered to show that he constantly believed people were trying to blow poison into his house. He dusted his home with flour so that he might track people coming into his house. He feared that people were trying to kill him. On one occasion he called a representative of the county health department to come and examine his house fearing that he was about to be killed by poisonous gas. Another witness had seen flour strewn around the upstairs windows so that he might detect any entry. He believed that his cattle were being poisoned. A lawyer at the Lewisburg bar testified to conversations with him during which he insisted that he was being watched by an FBI man in disguise. He had also told him of sprinkling flour on the floor and letting himself out the back window so he could tell if anybody had walked on the floor. On occasions he would be afraid to sleep in his house and would go to the home of a neighbor and sleep in a car.

In 1973 he was diagnosed by Dr. William F. Orr, of the Mental Health Clinic in Lew-isburg as suffering from “acute brain syndrome; questionable schizophrenic paranoid.” The Acting Director of the Clinic described petitioner as being “really spacey.” A medical doctor who had treated him found him to be disturbed and agitated at times. Another medical doctor diagnosed him in 1973 as being a paranoid-schizophrenic.

We have attempted to analyze the abnormal thinking of this petitioner and his bizarre conduct as described by the lay witnesses in the light of the medical testimony.

Reference to Lawyer’s Medical Cyclopedia, Revised Volume 3, Sec. 17.5, reveals that schizophrenia is “a severe emotional disorder characterized by the presence of delusions, hallucinations, or disturbances in the emotional sphere . . .” and that there are four reaction types. One of these is the paranoid type.

In this reaction the individual has delusions of grandeur. He may misinterpret the behavior or speech of others around him. He may have hallucinations. As a result of his delusions and hallucinations he may be hostile and aggressive toward others.

In Guttmacher & Weihofen, Psychiatry and The Law (Norton & Co. 1952) at page 73, speaking of the schizophrenics and the schizophrenic type reactions, it is said:

The outstanding features of these disorders are the bizarre thought content and the odd behavior of the patient, his apparent alienation from the world of reality, an apathetic flattening of mood which may at intervals be punctuated by apparently inappropriate periods of great intensity, the presence of delusions (false beliefs), illusions (false interpretations of stimuli), and hallucinations (perception of external stimuli not present).

And in Dr. Karl A. Menninger’s book, The Human Mind (Alfred A. Knopf, 1959) at pages 86, 87 we find this apt exposition:

Paranoid tendencies may develop into full-fledged paranoia, an insidious and malignant “insanity” characterized by a slowly progressing tendency to regard the whole world in the light of a system of delusions, chiefly delusions of persecution which enhance the importance of the ego. First a feeling of being slighted and unappreciated and then of being avoided and disregarded, then of being watched and pursued, then slandered, insidiously attacked, openly attacked, plotted against, etc.

We do not hold that this defendant was a paranoid schizophrenic either as a matter of fact, of psychiatry or of law. We have cited these treatises along with the medical testimony to aid in our analysis of the lay testimony in the light of the medical testimony and generally accepted principles of psychiatry. This analysis has a direct bearing upon the application of Graham v. State, supra.

II.

The Significance of Graham

In Graham, we adopted the ALI Model Penal Code test of criminal responsibility. We laid down rules for its retroactive application. First, we said that the new standards would be applicable “in all criminal trials or re-trials beginning on or after the date of the release [January 31, 1977] of this opinion.” 547 S.W.2d at 544.

Secondly, we held that for it to be applied retroactively it was necessary that “appropriate special requests” had been made or that the “issue otherwise [had been] fairly raised in the trial court and supported by competent and credible testimony.” Id. In the instant case, the defendant tendered a special request patterned after United States v. Smith, 404 F.2d 720 (6th Cir.1968). In fact the precise language from Smith, as set forth in our subsequent opinion in Graham, was the basis of the special request.

We find that all criteria of Graham governing retroactivity have been met. We specifically hold that there was “competent and credible” testimony from which the jury, if properly instructed, might have found the defendant not guilty by reason of insanity.

Subsequently, in Graham and in response to the state’s petition to rehear, we said:

Nothing in this opinion is subject to the construction that all cases wherein an insanity defense was interposed will ipso facto be subject to retrial. 547 S.W.2d at 544.

This conclusion should have been obvious from our principal opinion and we think it was. We, of course, would not reverse and remand in any case wherein the plea of insanity was interposed and was not supported by competent and credible evidence.

For reasons which do not appear and which we are unable to fathom the state insists that “an insufficient evidentiary basis was present to reverse in that [Graham ] case.” This insistence is in the very face and teeth of the statement in concluding the opinion that “[w]e expressly do not reverse this particular case on the basis of the use of the M’Naghten Rules since the trial judge and the Court of Criminal Appeals correctly applied Tennessee Law.” 547 S.W.2d at 544. This Court merely recognized an inherent unfairness in charging a trial judge with error in a case wherein he had correctly applied the law. We reversed for other error wherein we disagreed with the trial judge. The facts in Graham, as in this case, made out a jury question on the issue of insanity.

We, therefore, apply Graham because an appropriate special request was tendered and there was competent and credible evidence upon the issue of insanity.

III.

Argument of Counsel

The trial of this case was marred by the prejudicial injection, as an issue of first magnitude, of the post-trial disposition of the defendant, first as related to the length of his sentence and secondly as to his disposition in the event of a finding of not guilty by reason of insanity.

The opening gambit came from the District Attorney General, who, in opening argument, told the jury:

I ask you, in the interest of the people of this county and of the community, to put this man where he won’t be back out on the streets of Marshall County again. That, you know how it is, you send them down to the penitentiary, the parole system, they are back in a little while. . (Emphasis supplied)

The General was interrupted by an objection not ruled upon by the trial judge. After the interruption he argued:

If you find him guilty of murder in the second degree, he ought to get ninety-nine years, to let the people in the Parole System know that you don’t want this . . (Emphasis supplied)

An objection was made and overruled. Whereupon, the General continued:

Before we were interrupted, I asked you to let those in the Parole System know you don’t want this man back out on the streets of Marshall County with a sentence that you deem sufficient; and I submit, a sentence, if you find him guilty of murder in the second degree, that he ought to get a sentence of ninety-nine years in order to insure that. (Emphasis supplied)

Defense counsel responded to the District Attorney General’s “back out on the street” argument thusly:

If you acquit him, if you bring in a verdict saying he’s not guilty, that doesn’t mean that he’s going to be out here walking the streets. Because the law is, and I know that His Honor, the Court, will follow the law — the law is that if you find him not guilty because of insanity, this Court right here can commit him to a mental institution. And I’m confident in my mind that that’s exactly what he’ll do. So, I don’t think that Mr. Kidd, nor you, nor I, nor anybody else needs to worry about you turning Howard Sampson loose and him being roaming around on the streets of Lewisburg tonight. I think I can assure you that regardless of what your verdict is — THAT will NOT happen!

This argument by defense counsel was not objected to and, indeed, it was not objectionable except to the limited and technical extent of the statement: “this court right here can commit him to a mental institution.”

The law (Sec. 33-709, T.C.A.) at the time of this trial provided that when a criminal defendant is found not guilty by reason of insanity “the district attorney-general may seek hospitalization . . . if he determines hospitalization to be justified.” In our recent case of Graham v. State, supra at 544, we criticized this law and recommended to the legislature that it “be changed so as to clothe the trial judge with the authority to cause the defendant to be committed to the custody of the Commissioner of Mental Health to be placed in an appropriate institution for custody, care and treatment.” While we recognized then that there were serious constitutional implications, we did not go into the specifics, choosing instead to speak in generalities.

The closing argument for the state does not appear in the Bill of Exceptions, and we have no way of determining to what extent it contributed to the charge of the court discussed in the next section.

IV.

The Charge

The trial judge charged the jury, in part as follows:

Members of the jury, it has been argued by counsel as to the legal effect of a verdict of Not Guilty, or a verdict of Not Guilty because of insanity. The plea of the defendant is the general plea of Not Guilty. Under this plea, the defense of insanity at the time of the alleged act is an issue. If you find the defendant Not Guilty, or if you find the defendant Not Guilty because of insanity at the time of the alleged act; then, in either of these events the defendant would be a free man. And, the Court could not hold him nor have him placed in any hospital for the mentally ill or insane, unless a further hearing was held, and it was determined that the defendant was insane at this time. (Emphasis supplied)

We think this charge was plainly erroneous.

In the first place, it was not a complete statement of the law. Just as the argument made by defendant’s counsel was technically incorrect in that it short-cut the necessity for a proceeding instituted by the attorney general, the charge of the court was incorrect in that it too failed to mention the procedure available to the state, leaving the impression that, come what may, the defendant would walk the streets as a free man. We cannot conceive of any District Attorney General not taking immediate action to secure the person of any defendant acquitted of murder by reason of insanity.

As observed by counsel for the defendant, “this instruction was erroneous, not so much for what was said, but because it was said by the trial judge at all and because so much was left unsaid.” (Emphasis supplied.)

While we have every confidence that the trial judge did not so intend, the fact remains that this portion of his charge tended to put the stamp of approval upon the district attorney-general’s “back out on the street argument.”

Here we have the reverse of the situation presented in Edwards v. State, 540 S.W.2d 641 (Tenn.1976). There the defendant endeavored to persuade the trial judge to instruct the jury on the legal effect of a verdict of not guilty by reason of insanity. The majority opinion observed that “the trial judge is not supposed to tell the jury what the legal effect of their verdict is.” The Court further held [i]t is not relevant to the issue of petitioner’s guilt or innocence.” Further we noted that there are “so many options and alternatives available, depending upon the mental condition of the accused, it would be highly conjectural and would involve the jury in speculation as to what might happen to the accused.” 540 S.W.2d at 648-649.

V.

The Farris Issue

Petitioner also assigns as error the action of the trial judge in charging the provisions of Sec. 40-2707, T.C.A.

The instant case was tried on June 21, 1975, prior to the release of Farris [Farris v. State, 535 S.W.2d 608 (Tenn.1976)] in February 1976; however, at the time Farris was released direct review of this case was pending in the Court of Criminal Appeals and that court did not act until October 13, 1976. The conviction of the petitioner in this case had not become final, within the meaning of Farris.

We recently pointed out in Adams v. State, 547 S.W.2d 553, 556 (Tenn.1977) that on consideration of petitions for certiorari we have approached the Farris issue on an ad hoc basis and “[w]hen in our opinion, the Farris charge affected the length of the sentence we have taken corrective action.”

In the context of this case, wherein the length of the sentence was argued to the jury on a “back out on the street” basis, we are of the opinion that the charge materially affected the results of the trial.

Reversed and remanded.

COOPER, C. J., FONES and BROCK, JJ., and LEECH, Special Judge, concur.

      . Petitioner was declared indigent and was represented by court appointed counsel. The diligence and vigor of petitioner’s counsel is in keeping with the highest traditions of the legal profession.

      . M’Naghten’s Case, 1 C. & K. 130, 10 CL. & F. 200, 8 Eng.Rep. 718 (1843).

      . The trial judge in this case charged correctly on the two-pronged test of M’Naghten. See Graham v. State, supra.

      . The 1977 General Assembly, by Chapter 396, clarified the law with respect to commitment procedures when a defendant is found not guilty by reason of insanity. Under these circumstances “the criminal court shall order the person detained for diagnosis and evaluation for a minimum of 60 days and a maximum of 90 days in a hospital or treatment resource.” See subsection 1(a). The ensuing subsection makes it the mandatory duty of the District Attorney General, following the diagnosis and evaluation, to petition the court for judicial hospitalization under the provisions of Sec. 33-604, T.C.A. This enactment fully meets the suggestions made by this Court in Graham.

      . The dissent was not directed to this portion of the Court’s decision.


author: HARBISON, Justice.

text:
    ELMORE’S VARIETY STORE and Genesco, Inc., Appellants, v. Mrs. Mildred E. WHITE, Appellee.
    Supreme Court of Tennessee.
    July 5, 1977.
    Billy C. Jack, Columbia, for appellants.
    Jerry W. Wallace, Pulaski, for appellee.
   OPINION

HARBISON, Justice.

In this workmen’s compensation case the single issue on appeal is whether or not there was sufficient medical testimony to establish a causal connection between an ankle injury sustained by the employee and a later subarachnoid hemorrhage which resulted in her total permanent disability. The trial judge held that there was a causal connection, and we find substantial material evidence to support his conclusion.

The employee, Mrs. Mildred E. White, was 61 years of age and was regularly employed as a saleslady in a variety store in Pulaski, Tennessee when she was injured. There is no evidence in the record of her having any previous serious illness. On November 7, 1975 a bicycle fell in the department store and the kick-stand struck her ankle, apparently causing a fairly painful and severe puncture wound. A bloodclot, or hematoma, developed at the site of this injury. Mrs. White was seen by Dr. W. J. Johnson, a general practitioner in Pulaski, on November 14 and November 29, 1975. On the latter date the hematoma was lanced and a dressing applied. On December 1, 1975 the employee returned to Dr. Johnson’s office. There the dressing on her wound was changed, and while the nurse was in the process of doing this, the employee became faint and nauseated. She also felt the onset of a severe headache. She was examined by Dr. Johnson. He found all of her vital signs normal, and felt that she needed some fresh air. He permitted her to return to her home, and she drove her automobile, accompanied by her mother. She testified, however, that she began to feel a severe stiffness in her neck on the way home, to such an extent that she could not turn her head and had to request her mother to assist her in watching for other automobiles. During that day and the next she continued to suffer from nausea, headache and stiffness of the neck. She returned to Dr. Johnson’s office on December 3, and at that time he at once recognized that she had suffered a sub-arachnoid hemorrhage. He referred her to another physician in Pulaski, and the latter arranged for her to be examined on that same day by Dr. W. H. Bell, a neurosurgeon in Huntsville, Alabama.

Testifying in person at the trial, Dr. Johnson stated that he was of the opinion that an aneurysm on a blood vessel in the brain of the patient had weakened or burst while she was undergoing treatment in his office, and that the onset of the subarach-noid hemorrhage occurred at this time. He stated several times under examination by the Court and by counsel that he felt that there was a causal connection between the treatment being administered to Mrs. White for her work-related injury and the breaking of the aneurysm. He testified that excitement, pressure or tension, in his opinion, could cause the rupture of an aneurysm. In response to questions by the Court, Dr. Johnson testified:

“Q. Well, let me just flat out ask you this, Doctor. Can you, is this related to the injury? Would this injury that she received to her ankle have caused the rupture of the blood vessel?
“A. Probably so, I’d say that, probably so.
“Q. How, Doctor?
“A. Well, sometimes it can rupture any time. You know, a thing like she’s got the aneurysm there and a little excitement or anything like that, exertion, any thing like that can cause the aneurysm to rupture.”

Under examination by counsel, Dr. Johnson expressed the opinion that the original injury and the resulting treatment which the patient was undergoing “aggravated” the aneurysm. He testified:

“This lady was on the table there, the nurse was dressing her wound and she was looking at it and she fainted and she got sick right there at that time. I’ll say this, that this aneurysm started right then when she was dressing her wound and she was undergoing stress and it sounds to me like, it sounds to me like that her looking there seeing the bloody drainage and seeing the puss that could probably cause your ruptured aneurysm.”

Dr. Bell testified essentially to the same effect, stating that worry, apprehension or stress to a patient could cause the rupture of a pre-existing aneurysm. Like Dr. Johnson, he expressed the opinion that the onset of the subarachnoid hemorrhage occurred on December 1 while the employee was receiving treatment for her injury in the office of Dr. Johnson. When she came under Dr. Bell’s care, he concluded from his examination that she had sustained a brain hemorrhage. He performed a spinal tap which confirmed this diagnosis. Subsequent dye studies revealed the source of the brain hemorrhage, but before corrective surgery could be performed, the patient sustained a stroke of paralysis, becoming paralyzed on the left side. Dr. Bell stated that the brain injury was irreversible, not correctable by surgery, and that the patient was totally, permanently disabled.

Dr. Bell testified:

“In this particular instance, her stroke was due to a brain hemorrhage caused, in my opinion, by her being upset or excited with someone working on a wound where she had had surgery on her ankle and ran her blood pressure up probably and blew out an aneurysm she had. No doubt the aneurysm had been there for a number of years possibly or probably.”

Further, he stated:

“And, in my opinion if she had not had to be there having somebody probe her foot or ankle, irrespective of what caused the ankle, I think that she became excited, her blood pressure did go up and she did sustain a brain hemorrhage in his office while under treatment for an ankle injury, and that by her symptoms — she didn’t know they were symptoms of brain hemorrhage — I asked her when did she start having headache, and she went into a even more picturesque and elaborate description and she really didn’t realize, in my opinion, that that was the moment she had had the hemorrhage. She went home and continued to complain of pain and vomiting due to the pressure increase in her brain and the irritation of the blood over her brain.
“Q. So, Doctor, from the history that you received from Mrs. White as to her injuries in her own personal examination, is it or is it not your opinion that the hemorrhage to her sub-arachnoid area is or is not causally connected to the injury she received to her ankle on or about November 1, 1975?
“A. I think they are connected in my opinion, as I just stated it.”

The employer had Dr. Arnold M. Meirow-sky, a highly qualified and widely known neurosurgeon of Nashville, Tennessee, to review “certain medical reports and medical depositions” concerning the employee. Exactly what documents or records Dr. Meir-owsky examined does not appear in the record, but from those which he did examine, and in response to a hypothetical question, he concluded first that the onset of the subarachnoid hemorrhage did not occur on December 1, and that there was no causal connection whatever between the rupture of the aneurysm and the compensable injury or medical care resulting therefrom. We note from an examination of the record, however, that in the hypothetical question put to Dr. Meirowsky, there was no mention of the severe onset of neck stiffness which the patient experienced on December 1, and which all of the physicians, including Dr. Meirowsky, testified was a classic symptom of a subarachnoid hemorrhage.

Recovery was permitted for the death of an employee where an aneurysm of the aorta burst within an hour after he had sustained a severe injury to his finger in the case of Lucey Boiler & Manufacturing Gorp. v. Hicks, 188 Tenn. 700, 222 S.W.2d 19 (1949). In that case there was testimony that the employee sustained severe pain together with excitement and anxiety from the injury to his hand, and that shortly after he had visited an attending physician, he suddenly died. Death was due to the rupture of a pre-existing aneurysm on the aorta, and there was medical testimony that an increase in blood pressure, resulting from excitement or tension, could cause such a rupture.

As in the Hicks case, supra, the trial judge in the present case was faced with conflicting expert testimony on the critical issue of causation. There was material evidence by qualified medical witnesses that such a connection did exist. Under well-settled rules governing the review of workmen’s compensation cases, this Court will not disturb the findings and conclusions of the trial judge which are supported by such evidence.

The judgment of the trial court is affirmed at the cost of appellant, and the cause will be remanded to the trial court for entry of such further orders as may from time to time be necessary or appropriate.

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


author: SHRIVER, Presiding Judge.

text:
    John W. CRUMP, Jr., Plaintiff-Appellant, v. Gene CROSSGROVE, the Jewel Box of Knoxville, Inc., and Jewel Box Stores Corporation, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Oct. 29, 1976.
    R. B. Parker, Jr., Parker, Nichol & Finley, Nashville, for plaintiff-appellant.
    Thomas H. Peebles, III, Trabue, Sturdi-vant & DeWitt, Nashville, for defendants-appellees.
   OPINION

SHRIVER, Presiding Judge.

The Case

This is a suit for damages, both compensatory and punitive, for false arrest, wrongful imprisonment and malicious prosecution.

The case was tried to a jury on December 4, 1975, before Honorable Stephen North, Judge of the Fifth Circuit Court of Davidson County, Tennessee, and resulted in a verdict and judgment for $1,000.00 compensatory and $10,000.00 punitive damages, or a total of $11,000.00 in favor of plaintiff against all defendants.

From this judgment the plaintiff appealed and has assigned error.

Assignment of Error

There is a single assignment as follows:

“The Court erred in failing to grant the motion of the plaintiff to set aside the verdict of the jury and the judgment entered thereon and to grant plaintiff a new trial on the ground that the verdict of the jury was inadequate, and so inadequate as to evince passion, prejudice and caprice on the part of the jury.”

The Pleadings and the Facts

The original complaint, filed February 1, 1974, sets forth the fact that the plaintiff is a resident and citizen of Davidson County, Tennessee and that the defendant, Gene Crossgrove, is the Manager of The Jewel Box, a jewelry store in the Rivergate Shopping Center in Davidson County; that on or about October 17, 1973, at approximately 9:30 p. m., during regular business hours, plaintiff entered the retail jewelry store of defendants for the purpose of shopping for a gold chain which he believed he might be able to purchase there and, while inspecting a gold medallion owned by the defendants, defendant Crossgrove asked permission to see the diamond ring that plaintiff wore on his finger and suddenly pulled said ring from his finger and locked it in the store safe, announcing to the plaintiff that the ring belonged to the store and that it had been stolen several days earlier; that the ring was valued in excess of $2,500.00 and, although plaintiff demanded its immediate return and insisted that the police be called when the defendant refused to return the ring, the defendant persisted in keeping possession of said ring and when police came secured the arrest of plaintiff on the charge of receiving and concealing stolen goods.

It is charged that plaintiff was arrested and arraigned in the General Sessions Court of Davidson County and held under a $2,000.00 bond pending preliminary hearing on the charge of receiving and concealing stolen property which is a felony in Tennessee, as defined by T.C.A. 39-4217(C).

Without reciting the details as set forth in the complaint, at the preliminary hearing the charges were dismissed against the plaintiff and he subsequently filed this suit for $100,000.00 compensatory and $100,-. 000.00 punitive damages and demanded a jury to try the cause.

Count Two of the complaint charges that as a direct and proximate result of his wrongful arrest and imprisonment and prosecution, he was frightened, humiliated, injured in his good name and reputation, subjected to public disgrace, suffered physical abuse and great mental anguish and lost time from his work and put to the expense of attorneys’ fees and bonding fees, all by reason of the wrongful acts of the defendants.

The defendants filed an answer admitting the facts with respect to the ring and its possession acquired by the defendants as described in the complaint and, by amended and supplemental answer, the defendants made further admissions, including the fact that defendant Crossgrove charged plaintiff with receiving stolen property and that plaintiff was arrested and taken to the Metropolitan Police Headquarters; that they appeared on October 19, 1973 for a preliminary hearing in the General Sessions Court and that at said preliminary hearing it was discovered that the trademark in the ring was “Stylecrest” rather than “Artcrest” but deny that such was clear and obvious. It is further admitted that at this hearing it was determined that the ring did not belong to the defendants but, in fact, belonged to the plaintiff and was not the ring that had been stolen from the defendants. They deny that the action of Crossgrove was malicious or intentional but admit that Crossgrove should have made a more thorough inspection of the ring prior to the prosecution of the plaintiff. The answer proceeds:

“Defendants, therefore, admit liability for compensatory damages proximately caused by the plaintiff’s arrest and prosecution. All other allegations contained in Paragraph 8 of the complaint are denied.”

The record shows that plaintiff was 22 years of age at the time of his arrest and prosecution, unmarried and living with his parents and four brothers and sisters in Nashville; after graduating from Cumberland High School, he attended Tennessee State University two years, majoring in History; that prior to October 17, 1973, plaintiff had never been arrested or charged with any criminal violation in his life. It is shown that plaintiff was resourceful and industrious, having held two or more jobs since High School where for about three and a half years he earned from $800.00 to $1200.00 a month and he had other business interests that produced income for him. It appears that about a year before his arrest, as above set forth, he bought a diamond ring for $2,500.00 which bore a trademark on the inside of the ring “Stylecrest”. This was the ring that defendant Crossgrove took from his finger and locked in the safe, claiming that it was the property of the jewelry store and had been stolen.

At the time the ring was taken plaintiff undertook to point out to Mr. Crossgrove that the ring bore a trademark “Stylecrest” and not the store’s trademark “Artcrest”, but defendant would not heed his protestations and also refused to call persons whose names were given him by the plaintiff to verify the fact that the ring was his.

Plaintiff was placed in jail, fingerprinted, booked and mugged, his arrest record recorded and his bail set at $2,000.00, and he had to pay a professional bondsman $200.00 to get out of jail.

At the preliminary hearing, the Assistant District Attorney examined the ring and when told that the trademark of The Jewel Box was “Artcrest” and was imprinted in the ring, he discovered that the imprinted name in the ring was “Stylecrest”, whereupon, after Mr. Crossgrove examined and found this was true, the accused who is plaintiff-appellant here was released and his ring restored to him.

It is argued by counsel for the plaintiff that after the charges against plaintiff were dismissed at the preliminary hearing, neither Mr. Crossgrove nor any of the other corporate defendant’s representatives expressed any apology, sorrow or regret to the plaintiff for their contumacious, grossly negligent and malicious acts that caused irreparable harm and damage to the plaintiff.

Our Conclusions

Counsel for plaintiff earnestly insist that the verdict and judgment of $1,000.00 compensatory and $10,000.00 punitive damages is so inadequate as to evince passion, prejudice and caprice on the part of the jury, and that we should, therefore, reverse the judgment of the Court and remand for a new trial limited to a determination of the amount of damages to be awarded, both compensatory and punitive.

Counsel for plaintiff sets out in considerable detail the circumstances surrounding plaintiff’s arrest, imprisonment and prosecution and points to the absolute absence of any justification on the part of the defendants for their conduct.

Plaintiff testified that he was humiliated and embarrassed and, while the proof introduced shows that as a result of his arrest and prosecution he had to make a bond at the cost of $200.00, pay his attorney $200.00 for defense in the case and missed two days from his work, it also appears that the plaintiff did not lose his job because of the incident, and of the several witnesses who were called in his behalf, their testimony seems to indicate that plaintiff’s reputation was, in fact, not damaged, at least among his friends and those who knew him and where his reputation remained very excellent. There is also the testimony of Mr. James W. Chambers, III, a banker who stated that this particular incident did not affect plaintiff’s credit or the ability to secure loans.

The proposition is so well established in our jurisprudence in Tennessee that we need only to mention that the verdict of a jury in a suit of this character and which is approved by a Trial Judge is very seldom disturbed by the Appellate Courts and relief such as that sought by the plaintiff herein is generally denied unless the amount of the verdict is so grossly inadequate as to clearly evince passion, prejudice and caprice. Reeves v. Catignani, 157 Tenn. 173, 7 S.W.2d 38 (1927); Lunn v. Ealy, 176 Tenn. 374, 141 S.W.2d 893 (1939); and Phelps v. Magnavox, 497 S.W.2d 898 (Tenn.App.1972).

It has also been held in a number of our cases that punitive damages are not awarded as a matter of right but the amount of such damages is peculiarly within the discretion of the jury. See Davis v. Farris, 1 Tenn.App. 144 (1925); Phillips v. Newport, 28 Tenn.App. 187, 187 S.W.2d 965 (1945).

We think it not inappropriate to observe that the facts and circumstances surrounding the arrest and prosecution of this young man are such as would have supported a considerably larger award of damages, both compensatory and punitive. On the other hand, we cannot consistently hold that the verdict of the jury, as approved by the Trial Judge in this case, is so grossly inadequate as to evince passion, prejudice and caprice on the part of the jury. It must be admitted that the award is within the range of reasonableness to the extent that the jury who saw the witnesses and the parties and heard the case and the Trial Judge who was closer to the facts and circumstances than we are acted within the bounds of reason in respect to the award of damages to the plaintiff.

It results that the assignment of error must be overruled and the judgment of the Trial Court affirmed.

AFFIRMED.

TODD and DROWOTA, JJ., concur.


author: TODD, Judge.

text:
    Nola CARPENTER, Individually, as Administratrix of the Estate of Donald Ray Carpenter, Deceased, and as parent and next friend of Carlas Reneah Carpenter, Regena Lee Carpenter and Donna Ann Carpenter, etc., Plaintiffs-Appellees, v. HOOKER CHEMICAL & PLASTICS CORP. et al., Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    April 1, 1977.

      Sanders & Steenbergen, Columbia, for plaintiffs-appellees.
    Donald P. Paul, H. T. Finley, Nashville, for defendants-appellants.
   OPINION

TODD, Judge.

The defendants, Hooker Chemical & Plastics Corp. and Alfred Ingram, have been allowed and have perfected an interlocutory appeal from an order of the Trial Judge which overruled their motion for summary judgment and dismissal.

Plaintiffs have sued for the wrongful death of Donald Ray Carpenter, an employee of Maury Steel, Inc., whose death was allegedly the result of injuries received on the industrial premises of the defendant Hooker while under the supervision of the defendant Ingram, an employee of Hooker.

Defendants insist that plaintiff should not prevail in this common law action because the sole remedy against defendants for the death of deceased is a suit under Workmen’s Compensation Law because, (1) deceased was the employee of a subcontractor under defendant as a general contractor, as provided by T.C.A. § 50-915; or (2) deceased was a “loaned employee” and therefore was an employee of defendant, Hooker.

It is uncontroverted that deceased was employed and paid by Maury Steel, Inc., doing work on the premises of defendant, Hooker, under a contract between Maury Steel and Hooker.

On August 15, 1974, Hooker issued to Maury Steel its purchase order No. 41-4742 which reads in pertinent part as follows:

“Furnish eight (8) Iron Workers for two (2) 12 hour shifts from 8-13-74 until notification.
CONFIRMING . . .
FORM SAF-101 FORMS A PART OF THIS CONTRACT ...”

The uncontroverted evidence shows that the contract required Maury Steel, Inc. to furnish no materials, machinery, equipment or supplies, nor supervision, and that, at the time of his injury, deceased was working under the supervision of the defendant, Ingram, an employee of Hooker; that Hooker is required to rebuild its reduction furnaces once each three years; that the work is not done entirely by Hooker, but is done partly by Hooker employees and partly by employees of outside contractors; that Hooker is not in the business of rebuilding reduction furnaces except for itself; that deceased was one of sixteen iron workers furnished by Maury for cutting and removing certain pipes in the dismantling of the furnace; that a Maury Steel supervisor was present on the day shift, but no Maury Steel supervisor was present during the night shift when deceased was injured; that deceased was told by defendant, Ingram, which pipes to cut; and that, while cutting one of said pipes, deceased was injured.

First, it is insisted by defendants that Maury Steel was a subcontractor of Hooker as general contractor, so that Hooker was liable for the injury of deceased under the Workmen’s Compensation Law (T.C.A. § 50-915), but not otherwise (T.C.A. § 50-908).

In Clendening v. London Assurance Company, 206 Tenn. 601, 336 S.W.2d 535; (1960), a house builder took title to property in his own name and constructed houses thereon for resale, contracting with various subcontractors for parts of the construction. Plaintiff, who contracted to lay bricks on a per unit basis, was injured on the job. The Supreme Court held the compensation insurer of the builder liable for benefits, stating that the owner of the premises was, nevertheless, a general contractor under the Workmen’s Compensation Law and, as such, liable for benefits to any person employed on the job.

To the same effect is Billings v. Dugger, 50 Tenn.App. 403, 362 S.W.2d 49 (1962).

In Clower v. Memphis Light, Gas & Water Div., 54 Tenn.App. 716, 394 S.W.2d 718 (1965), plaintiff was employed by Tri State Armature and Electrical Works, but was injured while working on the premises of Memphis Light, Gas and Water Div. pursuant to a contract of Tri State to furnish workmen to repair fire damage under the direction and supervision of Memphis Light. Workmen’s Compensation benefits were paid by the insurer of Tri State, and Clower sued Memphis Light in a common law action for tort. This Court affirmed a directed verdict for the defendant, holding that Memphis Light was not a “third party” against whom an action is permitted by § 50-914, T.C.A.

It appears that the only difference between Clower and the present case is that in Clower there was a “one-time” repair of fire damage, whereas in the present case, there was a recurrent rebuilding of fire deterioration of a furnace. The difference is inconsequential for purposes of determining the rights and liabilities of the parties. Actually, the facts of the present case are more convincing than Clower because the rebuilding of its furnaces was a part of the business of the defendant, Hooker.

In Winchester v. Seay, 219 Tenn. 321, 409 S.W.2d 378 (1966), plaintiff was a hotel employee, but was requested by his employer to perform a minor maintenance chore for the owner of a restaurant, during which work he was injured. The Supreme Court allowed a workmen’s compensation claim against the restaurant holding,

“. . . such ancillary activities as maintenance and repair are now generally deemed to be within the course of the employer’s usual business.”

In Winchester, the Supreme Court also quoted with approval from Section 48, Larson on Compensation in regard to the workmen’s compensation liabilities of general and special employers of loaned employees.

Plaintiff urges that this case is controlled by Hendrix v. Ray-Ser Dyeing Company, 224 Tenn. 690, 462 S.W.2d 483 (1970) wherein the Supreme Court denied compensation benefits to a painter who contracted with defendant to paint its smokestack according to plaintiff’s own method for a stipulated price without any assistance or participation by any employees of defendant. The distinctions are obvious. In the present case, the employees of Maury Steel were used for an indefinite time to perform whatever details were assigned to them by Hooker, and employees of Hooker were engaged in the same reconstruction project.

Plaintiff also relies upon a district court decision, Chappell v. Olin-Mathieson Chemical Corp., 305 F.Supp. 544 (1969). This Court does not ordinarily accord appellate status and consideration to the opinions of trial judges. Moreover, this Court does not agree entirely with the reasoning and pronouncements of Chappel v. Olin which relies principally upon Siskin v. Johnson, 151 Tenn. 93, 268 S.W. 630 (1924) wherein the workman was not working on the premises of the defendant and under the control of the defendant, as in the present case. In Chappel v. Olin there was a complete assignment of work to be performed by the electrical contractor by his own methods and means, which places Olin in the classification with Hendrix v. Ray-Ser which has already been differentiated.

Defendants’ first insistence is sustained. Where a business enterprise undertakes to act as its own general contractor and contracts directly with subcontractors for various phases of construction on its own premises, such business enterprise is subject to the liability imposed by the Workmen’s Compensation Law upon general contractors and, consequently is entitled to the immunities conferred by the same law.

The uncontroverted facts therefore require dismissal of this common law action.

Defendant’s second contention is also correct. The uncontroverted facts establish a situation of “loaned servant” whereby the defendant was likewise subject to the liability and entitled to the immunity provided by the Workmen’s Compensation Law. Winchester v. Seay, supra.

Plaintiffs resist adoption of the “loaned servant theory,” insisting that the status of loaned servant is a question of fact for the jury. This is so only when the evidence is disputed or reasonable minds might draw differing inferences of fact from the undisputed evidence. Such is not true in the present case. All of the evidence shows that the deceased employee was a loaned servant under the criteria set out in Winchester v. Seay, supra.

Plaintiffs rely upon Dedman v. Dedman, 155 Tenn. 241, 291 S.W. 449 (1926); but that case involved a borrowed chauffeur driven automobile and common law liability of the master under the rule of respondeat superior. In plaintiffs’ authority, Chamberlain v. Lee, 148 Tenn. 637, 257 S.W. 415 (1928), an elevator repairman sued a building owner for injuries sustained by the operation of an elevator by the employee of the building owner acting on instructions of the repairman. So also in Gaston v. Sharpe, 179 Tenn. 609, 168 S.W.2d 784 (1942), cited by plaintiffs, wherein plaintiff was injured by the operation of a dragline in control of an employee of the owner of the machine acting under instructions of the city who had rented the dragline. So also in Hot Blast Coal Co. v. Williax, 10 Tenn.App. 226 (1929) involving the operation of a truck. Owen v. St. Louis Spraying Co., 175 Tenn. 543, 136 S.W.2d 498 (1940) involved the furnishing of an instructor to instruct employees of defendant, hence he could not have been under the control of defendant or its employees. He was in control. Plaintiffs also rely upon the Trial Court decision in Latham v. Technar, Inc., D.C., 390 F.Supp. 1031 (1974), however this involved a transfer from one manufacturing plant to a subsidiary and is distinguishable from the present case.

Plaintiffs undertake to rely upon a statement in an affidavit of David McClain. Plaintiffs’ brief makes no citation to the record as required by the Rules of this Court, and diligent search of the record fails to disclose such an affidavit or reference thereto. The motion for summary judgment lists the evidence upon which it is based and such affidavit is not so listed. The record contains no response to the motion for summary judgment.

According to plaintiffs’ brief, the McClain affidavit would show that deceased was hired by Maury Steel, could have been fired by Maury Steel, was paid by Maury Steel and his questions about his work would have been answered by Maury Steel. This evidence, if shown, would not change the undisputed fact that deceased was working as a part of an eight-man crew which had no supervision or direction on the job except the defendant, Ingram, a supervisory employee of Hooker, who directed deceased to cut the particular pipe which produced the injury of deceased. No Maury Steel foreman or supervisor was on the premises.

Plaintiffs insist the right of control should be a jury question, but relies upon the written contract for evidence of right of control. Generally, the interpretation of a written instrument is a question of law for the court. Provident Washington Insurance Company v. Reese, 213 Tenn. 355, 373 S.W.2d 613 (1963) and authorities cited therein.

Even though the printed conditions on the reverse side of the order to Maury Steel referred to diligence and care in performing work and the furnishing of materials, equipment and supplies, such printed provisions are superseded by the typewritten items on the face of the order as follows:

“Furnish eight (8) Iron Workers for two (2) 12 hour shifts from 8-13-74 until notification.”

It is unthinkable that the contract contemplated more than furnishing the designated number of workmen to do whatever was desired by Hooker for whatever period of days Hooker might desire. This is a classic example of loaned servants. Moreover, the uncontradicted evidence supports this interpretation. The deposition of Mr. Ingram states that Maury Steel furnished no machinery, equipment, or supplies. No supervision was furnished on the night shift during which deceased was injured. At the time of the injury, Hooker employees and Maury Steel employees were working together under the immediate supervision of Ingram.

This Court is satisfied with the correctness of the conclusion that deceased was a “loaned servant.”

The previously stated rulings in favor of defendant, Hooker, are also available to the other defendant, Alfred Ingram, Hooker’s supervisory employee. In Majors v. Moneymaker, 196 Tenn. 698, 270 S.W.2d 328 (1954) it was held that the immunity from common law liability applies to both employer and fellow employees. There appears to be no specific authority exempting fellow employees under the peculiar circumstances of this case. However, this Court is of the opinion that, once Workmen’s Compensation liability is fixed upon an employer, the immunity from common law liability protects such employer and employees of such employer in the same manner as in the uncomplicated case involving only one employer and his direct employees.

The disposition of this appeal does not deny all relief to plaintiffs. The record does not show whether Maury Steel carried Workmen’s Compensation insurance, but, from the employment of sixteen men, it must be presumed that such insurance was in force. It is shown that Hooker had Workmen’s Compensation in force. There is no suggestion that liability has been denied by either concern or its insurer under the Workmen’s Compensation Law. There is, therefore, no reason to fear that the dependents of deceased may have been or may be denied their rightful benefits under the Workmen’s Compensation Law. Common sense and common justice strongly support the liability of Hooker under the Workmen’s Compensation Law and the immunity of Hooker under the common law.

The purpose of the Workmen’s Compensation Law is to assure workmen and their dependents of some compensation for injuries on the job. A workman, such as deceased, or his dependents, should not be deprived of benefits for injuries sustained while performing work on the premises of a large industry merely because he is on the payroll of a smaller concern which has loaned his services to the large industry. This is especially true where all of the conditions and hazards of work are determined and controlled by the larger industry. If Maury Steel had not employed sufficient workers to be subject to the Workmen’s Compensation Law, deceased, as a member of a large crew working under Hooker’s direction was entitled to protection. The ruling of this Court assures this protection.

On the other hand, being subject to the liabilities of the Workmen’s Compensation Law, and having made adequate provision for discharge of such liabilities, Hooker and its employee, Ingram, are entitled to have their liability limited as provided in said law.

The judgment of the Trial Court overruling defendants’ motion for summary judgment is reversed. Summary judgment is granted in favor of both defendants and plaintiffs’ suit is dismissed. All costs, including costs of this appeal, are taxed against plaintiff.

Reversed and Dismissed.

SHRIVER, P. J., and DROWOTA, J., concur.


author: DAVIS, Commissioner.

text:
    Edward SCOTT, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 53164.
    Court of Criminal Appeals of Texas.
    July 6, 1977.
    Gerald P. Burleson, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, John S. Holleman, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for burglary of a building with intent to commit theft. The jury found appellant guilty and the trial court found the paragraphs in the indictment charging appellant with having been previously convicted of two felonies to be true, and the punishment was assessed under V.T.C.A., Penal Code, Sec. 12.42(d), at life.

At the outset, appellant contends that the trial court erred in denying his “motion to quash the enhancement paragraphs of the indictment on the ground that there is no allegation that the most recent alleged pri- or conviction became final prior to the commission of the primary offense.”

The indictment alleges in pertinent part: “EDWARD SCOTT, JR. . . . on or about July 12, 1974, did then and there unlawfully commit an offense hereafter styled the primary offense in that he did with intent to commit theft, enter a building not then open to the public, owned by Glenn Parmer, hereafter styled the Complainant, without the effective consent of the Complainant.
“ENHANCEMENT PARAGRAPHS
“Before the commission of the primary offense, on February 13, 1970, in Cause No. 67787, in the Nineteenth Judicial District Court of East Baton Rouge Parish, Louisiana, the Defendant was convicted of the felony of Simple Burglary.
“Before the commission of the primary offense, and after the conviction in Cause No. 67787 was final, the Defendant committed the felony of Attempted Simple Burglary and was convicted on December 13, 1971, in Cause No. 80375, in the Nineteenth Judicial District Court of East Baton Rouge Parish, Louisiana.”

V.T.C.A., Penal Code, Sec. 12.42(d), provides:

“If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.”

In Carvajal v. State, Tex.Cr.App., 529 S.W.2d 517, we noted that, “The language of Sec. 12.42(d) is similar to that of Art. 63 [V.A.P.C.],” and quoted from the Practice Commentary following Sec. 12.42(d), where it was stated:

“Subsection (d) preserves prior Article 63. . And presumably, in the context of this and the following section, the old rules regulating use of prior convictions for enhancement will also apply. See e. g., Mayo v. State, [166 Tex.Cr.R. 470,] 314 S.W.2d 834 (Cr.App.1957); Kinney v. State, [45 Tex.Cr.R. 500,] 79 S.W. 570 (Cr.App.1904).” Also see Hernandez v. State, Tex.Cr.App., 530 S.W.2d 563.

Appellant cites Rogers v. State, 168 Tex. Cr.R. 306, 325 S.W.2d 697, and Barnwell v. State, Tex.Cr.App., 504 S.W.2d 877. In Barnwell, it was stated:

“The indictment clearly alleges that the 1960 conviction was for an offense committed after the 1954 conviction had become final, and that both prior convictions were final and for offenses committed prior to the commission of the primary offense. Such allegation was sufficient to meet the requirement set out in Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697 that, in order to invoke the provisions of the habitual criminal statute, the indictment must allege that each succeeding conviction is subsequent to the previous conviction both in point of time of commission of the offense and conviction thereof, and that the primary offense was committed after the two prior convictions had become final.”

In Ex parte Holley, 170 Tex.Cr.R. 206, 339 S.W.2d 903, where punishment was enhanced under Art. 63, V.A.P.C. by virtue of a prior conviction for forgery in the State of Oklahoma in 1947 and a felony theft conviction in Bailey County in 1950, it was stated:

“The indictment is insufficient in law to support a life term under Art. 63, Vernon’s Ann.P.C., because there is no allegation that the theft for which relator was convicted in 1950 was committed after the judgment in the forgery conviction became final.”

Alvarez v. State, Tex.Cr.App., 472 S.W.2d 762, cites Holley with approval.

On the other hand, the Court has expressly rejected the contention that it must be alleged in the indictment that prior convictions relied on for enhancement had become final. In Ellis v. State, 134 Tex.Cr.R. 346, 115 S.W.2d 660, it was stated:

“Another objection urged to that part of the indictment charging prior convictions was that it contained no averment that the judgments under said convictions had become ‘final judgments.’ In the recent case of Arbuckle v. State, 132 Tex.Cr.R. 371, 105 S.W.2d 219, many cases upon the subject of increased punishment were re-' viewed, and it was there held that when the state pleaded a ‘prior conviction ’ it necessarily meant a final conviction before the commission of the offense which was being presently prosecuted. In the first paragraph of the indictment heretofore quoted it was alleged that ‘prior to the commission of the offense by the said defendant hereinbefore alleged — that is, the theft of Strickland’s horse — the said defendant was four times convicted of a felony,’ etc. This sufficiently alleged the finality of the convictions thereafter particularly designated. If any of said convictions were not final it became a matter of defense subject to proof.”

In Broughton v. State, 148 Tex.Cr.R. 445, 188 S.W.2d 393, Ellis was cited with approval, the Court stating:

“It was sufficient to charge that he had been convicted of an offense of like character prior to the primary offense charged. A conviction means a final conviction. If a conviction was not final, it could be shown as a matter of defense.” (Emphasis supplied.)

In Martinez v. State, 163 Tex.Cr.R. 10, 288 S.W.2d 71, where appeal was taken from a conviction for the felony offense of driving while intoxicated, Ellis and Broughton were cited with approval and it was stated:

“The averment in the indictment that the appellant had been duly and legally convicted was sufficient to charge the finality of the alleged prior conviction. Hence, appellant’s contention that a final conviction was not alleged is overruled.”

We conclude that the holdings in Ellis v. State, supra; Broughton v. State, supra; and Martinez v. State, supra, are consistent with Sec. 12.42(d), and the sounder rule. We reaffirm the rule stated in those cases that the averment in an indictment that a defendant has been convicted is sufficient to charge the finality of the alleged prior conviction.

To the extent that Ex parte Holley, supra; Barnwell v. State, supra; Alvarez v. State, supra; Rogers v. State, supra, and any other cases are in conflict, they are overruled.

We reject appellant’s contention that the court erred in denying his motion to quash.

Appellant contends that the proof is insufficient to show that he has been previously convicted of the two prior offenses alleged in the indictment in that “the prison packets were not properly attested by the legal custodian of such records as required by Texas law” and that judgments, if any, and sentences in each of the two prior convictions should not have been admitted into evidence.

First, it is noted that the pen packets contain no judgments upon which sentences for the two prior offenses can be based. In Aaron v. State, Tex.Cr.App., 546 S.W.2d 277, where Louisiana convictions were relied on for enhancement of punishment purposes, it was stated,

“ ‘The absence of a judgment invalidates a sentence, and without a sentence no final conviction has resulted from the trial.’ Morgan v. State, 515 S.W.2d 278 (Tex.Cr.App.1974). A conviction that is not final cannot be used at the punishment stage of a trial under Art. 37.07, Sec. 3(a), V.A.C.C.P. Morgan v. State, supra.”

Further, the certifications on both pen packets make no reference to the authenticity of the sentences included in the packets specifically, nor are the sentences included in the certification by general reference. The certifications on both packets recite:

“I, J. B. Rabalais, in my official capacity as Record Clerk and legal Custodian of the records of the Louisiana State Penitentiary, do hereby certify that attached hereto are true and exact copies of the document of commitment, photographs, and fingerprints relative to one Edward Scott, a former inmate of this institution.”

The instruments themselves, which appear to be sentences, in the two Louisiana convictions bear no certification as to their authenticity. Appellant timely and properly objected to the admission of the pen packets for this reason. We find that the sentences were not properly authenticated and were inadmissible.

The error herein relates to punishment only; the court assessed the punishment. Inasmuch as the State’s proof of prior convictions is insufficient, the proper remedy is to set aside the life sentence and remand the case to the trial court for a new hearing or trial on the issue of punishment to be assessed by the court, at which time the State may again attempt to prove the prior convictions for the purpose of enhancing punishment.

It is so ordered.

Opinion approved by the Court.

      . It has long been held that if a conviction relied on for enhancement is urged not to be final, it is a matter of defense subject to proof. Gardner v. State, 486 S.W.2d 805; Miller v. State, Tex.Cr.App., 472 S.W.2d 269; Johnson v. State, Tex.Cr.App., 435 S.W.2d 512; Woolsey v. State, 166 Tex.Cr.R. 447, 314 S.W.2d 298; Smothermon v. State, Tex.Cr.App., 383 S.W.2d 929; Whiddon v. State, 160 Tex.Cr.R. 23, 266 S.W.2d 167.

      . We have reviewed appellant’s pro se brief, and find that the contentions therein, other than those which relate to grounds of error treated in this opinion, are wholly without merit.

      . See Bullard v. State, Tex.Cr.App., 533 S.W.2d 812.


author: PHILLIPS, Judge.

text:
    Henry KINCHELOE, Appellant, v. The STATE of Texas, Appellee.
    No. 52288.
    Court of Criminal Appeals of Texas.
    July 13, 1977.

      Kenneth A. Back, Amarillo, for appellant.
    Tom A. Curtis, Dist. Atty., and Bruce P. Sadler, Asst. Dist. Atty., Amarillo, for the State.
   OPINION

PHILLIPS, Judge.

The offense is possession of a firearm by a felon; the punishment, enhanced under V.T.C.A., Penal Code, See. 12.42(d), life.

In a per curiam opinion delivered July 7, 1976, the appeal in this cause was dismissed for untimely pronouncement of sentence. See Mendez v. State, Tex.Cr.App., 535 S.W.2d 365; Woods v. State, Tex.Cr.App., 532 S.W.2d 608. A supplemental transcript shows the cause is now properly before us and the appeal is reinstated.

Appellant challenges the sufficiency of the evidence.

Bill Brice testified that on September 18, 1974, he was the manager of Billy Fred’s Gun Shop in Amarillo and he sold a Winchester Model 94 30-30 to appellant. He said appellant took a gun off the rack, but Brice put it back on the shelf and sold appellant one in a box. In filling out the Firearms Transaction Record, Brice entered the serial number as it appeared on the box; he did not at any time open the box. Brice stated the manufacturer of the gun puts the serial number on the box and it is a standard custom among wholesalers and gun dealers to refer to the number on the box. Brice stated the seal was unbroken on the box he sold appellant and in his 15 years’ experience he had never seen a rifle box that did not contain a rifle if the seal was unbroken when received from the manufacturer.

Witness Bevers, a special agent with the Treasury Department, testified he arrested appellant at home on October 17, 1974, under the authority of an arrest warrant. Appellant signed a consent to search form and Agent Bevers found three weapons in the house, including State’s exhibit two, identified by serial number as the Winchester 30-30 sold to appellant by Brice.

Appellant asserts in light of the passage of time between the alleged purchase of the rifle and the search of his residence “it is impossible to conclude that the appellant actually had care, custody and management of the firearm away from the premises where he lived.” Appellant also contends the evidence fails to show that the rifle was actually in the box appellant carried out of the gun shop.

Viewing the evidence in a light most favorable to the jury’s verdict, we find the evidence is sufficient to show appellant was in possession of the rifle when he left the gun shop. See and compare McCollum v. State, Tex.Cr.App., 441 S.W.2d 534.

In two grounds of error appellant contends the indictment as drawn cannot support a life sentence. Omitting the formal parts, the indictment alleges that on or about September 18, 1974, appellant did then and there:

“knowingly and intentionally possess a firearm, to-wit: a rifle, away from the premises where he lived; and prior to the commission of said act, the said Henry Kincheloe was duly and legally convicted of the felony offense of Murder without Malice, being a felony involving an act of violence to a person, to-wit: on the 10th day of May, 1968 in the 69th District Court of Dallam County, Texas, in a ease on the docket of said Court, Number 2201, and entitled The State of Texas vs. Henry Hamilton Kincheloe, the said Henry Hamilton Kincheloe was duly and legally convicted of the felony offense of Murder without Malice, of which said offense said Court had jurisdiction and which conviction occurred and the judgment thereon became final prior to the commission by the said Henry Kincheloe of the act hereinbefore charged against him”.

The second and third paragraphs of the indictment allege appellant had previously been convicted of two felony offenses: Ex-Convict in Possession of Firearms in cause number 15129 in the 108th District Court of Potter County and Burglary in cause number 12019 in the 47th District Court of Potter County.

The indictment in cause number 15129, made a part of this record, charged appellant with the offense of Ex-Convict in Possession of Firearms under Art. 489c, V.A. P.C. (1925), and alleged appellant had been convicted of Murder without Malice in cause number 2201 in the 69th Judicial District Court of Dallam County, Texas.

Appellant alleges because the murder without malice conviction in cause number 2201 had been used in cause number 15129 to show appellant was a felon it could not be used again for the same purpose.

In Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93, the defendant was convicted of driving while intoxicated as a second offender under Art. 802b, V.A.P.C. (1925). To make the offense a felony the State alleged the defendant had been convicted of the misdemeanor offense of driving while intoxicated in 1947. This misdemeanor conviction had previously been successfully used in a 1949 felony conviction for driving while intoxicated. We held the prior use of the misdemeanor conviction did not prevent its subsequent reuse for the same purpose and that such reuse did not violate the constitutional prohibition against placing an accused twice in jeopardy. In so holding this Court distinguished the use of a prior conviction to enhance punishment under Arts. 61 through 64, V.A.P.C. (1925), from its use as an essential element of Art. 802b, supra, to create a new and independent crime of the grade of felony.

The conviction for murder without malice is alleged in both indictments for jurisdictional purposes as an element of the primary offense. Under our holding in Hill v. State, supra, the prior use of the murder without malice conviction in cause number 15129 did not prevent its use for the same purpose in the instant case.

Appellant also contends the rationale of Ramirez v. State, Tex.Cr.App., 527 S.W.2d 542, should be extended to prohibit the State from using the conviction in cause number 15129 for enhancement in order to prevent the State from doing indirectly what Ramirez holds it cannot do directly. In Ramirez v. State, supra, at page 544, we held:

“V.T.C.A. Penal Code, Sec. 46.05, supra, is a special statute which, as an element of the offense, requires proof of a prior final conviction of a felony involving an act of violence in addition to proof of the possession of a firearm away from the premises where the accused lives. Having been alleged as an element of the offense charged in the first paragraph, the conviction in cause No. 12,736 in the 105th District Court of Nueces County on December 1, 1967, was not available and could not be again used to enhance the punishment under V.T.C.A. Penal Code, Sec. 12.42(a), supra."

In Garcia v. State, 169 Tex.Cr.R. 487, 335 S.W.2d 381, cited in Ramirez, we held a prior conviction is not available to enhance punishment for an offense of which it is an essential element. We further noted:

“We are not to be understood as holding that in prosecutions under Article 489c, Vernon’s Ann.P.C., the State is precluded from using felony convictions other than the one alleged as an element of the offense to secure an enhancement of punishment under Article 63, V.A.P.C.” Garcia v. State, supra, at page 383.

The situation in the case at bar is one step removed from that before us in Garcia and Ramirez. Appellant seeks to prohibit the State from using, for enhancement purposes, a felony conviction in which an essential element of the offense is the same conviction alleged as an essential element of the primary offense. Although there are no cases which speak to this issue, the following cases are instructive.

In Ex parte McLane, Tex.Cr.App., 417 S.W.2d 405, the relator was convicted in 1963 of robbery by assault and punishment was enhanced with a 1957 robbery by assault conviction. In 1959 relator was convicted of unlawful possession of a pistol, ripened into a felony by use of a second robbery by assault conviction in 1957. Both 1957 robbery convictions occurred on the same day and were for offenses committed on the same day. Relator alleged the use of one of these robbery convictions in 1959 as an element of the offense prohibited the State from using the other robbery conviction for enhancement in 1963. In overruling relator’s contention, this Court stated that Garcia v. State, supra, did not apply and that a prosecution under Art. 489c, V.A.P.C., was not governed by the rules applicable in a prosecution under the enhancement statute. We further noted that our holding did not restrict the further use, for enhancement purposes, of the robbery by assault conviction that had been alleged as an element of the unlawful possession of a pistol offense.

In Mena v. State, Tex.Cr.App., 504 S.W.2d 410, the defendant was convicted of the felony offense of possession of a pistol under Art. 489c, supra, and the punishment was enhanced under Art. 63, V.A.P.C. The defendant contended the punishment was improperly enhanced under the rule prohibiting the use of two convictions occurring on the same date to enhance punishment under Art. 63, supra. This Court overruled the contention because one of the two convictions was used as an element of the offense and the other conviction was alleged for enhancement.

It is apparent from the foregoing cases that the rules governing the repetition of offenses statutes are not applicable when a prior conviction is alleged as an element of the primary offense. The use of the murder without malice conviction as an element of the offense in cause number 15129 did not prevent its use for enhancement purposes in a subsequent conviction. However, the prior murder conviction could not have been used for enhancement in the instant indictment because it was alleged as an element of the primary offense, and a prior conviction may not be used for both purposes in a single indictment.

We do not agree that the use of a prior possession of a firearm conviction is an indirect use of the otherwise unavailable murder without malice conviction. The basis for the enhancement of punishment is the subsequent conviction, not the elements of the offense for which appellant was convicted. We decline to extend the holding of Ramirez v. State, supra, to prohibit the State from using as enhancement a prior felony conviction obtained under an indictment which alleged as an essential element the same prior conviction alleged as an element of the primary offense.

There being no showing of reversible error, we affirm the judgment.

      . The indictment further alleged two prior convictions for enhancement purposes, the conviction for murder without malice in cause number 2201 and the conviction for burglary in cause number 12019; however, in light of the sentence imposed, not less than two nor more than ten years, we presume the enhancement counts were waived and abandoned.