author: WILLIAM I. DAVIS, Special Judge.

text:
    C. Howard BOZEMAN et al., Appellants, v. Herbert BARKER et al., Appellees.
    Supreme Court of Tennessee.
    Sept. 11, 1978.

      Dale C. Workman, Asst. Knox County Law Director, Knoxville, for appellants.
    Richard W. Krieg, William A. Zierer, Knoxville, for appellees; Morton, Lewis, King & Krieg, Knoxville, of counsel.
    Brooks McLemore, Jr., Atty. Gen., Kenneth R. Herrell, Asst. Atty. Gen., Nashville, for intervenor-appellee.
   WILLIAM I. DAVIS, Special Judge.

The parties will be referred to as they appeared in the trial court, appellants as defendants and appellees as plaintiffs.

The Tennessee General Assembly enacted Chapter 485, Public Acts 1977 which is, caption and body, as follows:

AN ACT to provide for minimum annual salaries of certain court officers in counties having populations in excess of 250,000, according to the federal census of population of 1970 or any subsequent federal census of population.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
SECTION 1. In counties having populations in excess of 250,000, according to the Federal Census of Population of 1970, or any subsequent Federal Census of Population, a minimum annual salary of seven thousand eight hundred dollars ($7,800) shall be paid by the county to any person appointed to serve as court officer for the trial level courts of record in the county regardless of whether or not the duties of such persons includes the service of process issuing from any of such courts. The compensation authorized by this Act shall not include the expense allowance for the use of an automobile by any such person. However, the provisions of this Section shall not apply to counties having populations in excess of 600,000 according to the Federal Census of Population of 1970.
SECTION 2. The provisions of this Act shall not apply to counties of this state having populations of not less than 200,000 nor more than 275,000, according to the U.S. Census of Population of 1970, or any subsequent U.S. Census of Population.
SECTION 3. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be sever-able.
SECTION 4. This Act shall take effect July 1, 1977, the public welfare requiring it.
PASSED: May 12, 1977.

The population provisions of the Act have the effect of making only Knox and Davidson counties presently subject to the Act. The Act was not ratified or approved by any governing body of Knox County nor is there a provision in the Act for such action.

Defendants attacked the Act as being violative of Article XI, Sections 8 and 9 of the Tennessee Constitution. The Chancellor held Chapter 485 to be constitutional and not in contravention of Sections eight (8) or nine (9), Article XI of the Tennessee Constitution. The case is here for review of that decision.

The basic facts appear to be that plaintiffs were deputies sheriff, otherwise referred to as Court officers, the duties of some being to act as bailiffs waiting on or attending the Chancery, Circuit and Criminal Courts of Knox County and others having duties to serve process from said Courts. Fourteen of plaintiffs were process servers and received travel allowances of $1,800.00 per annum in addition to the $7,022.00 annual salary each plaintiff received. For the year prior thereto the salary was $6,563.00. An across the board salary increase of seven per cent was given all Knox County employees as of July 1, 1977. Plaintiffs were carried on the payroll as either process servers or bailiffs and all under the same account number as well as all being included under item 409 of the Knox County budget. The Knox County General Accounting Office considered plaintiffs as court officers and sub-classified them as process servers and bailiffs. Plaintiffs’ duties were such as to bring them within the designation of “Court officers for the trial level Courts of record in the County” as that phrase was used in the Act and entitled to the minimum salary provided in Chapter 485 Public Acts 1977 if that Act be constitutional.

Deputies Sheriff who worked as bailiffs and process servers in Knox County General Session Courts were paid on a fee basis and bore their own expenses with the exception of one deputy who was on a salary. Field deputies sheriff were paid $8,250.00 per an-num plus $200.00 uniform allowance. These field deputies are not paid pursuant to a salary suit.

According to the Federal Census 1970 Knox County had a population of 276,293 and Davidson County a population of 447,-877.

The pertinent parts of the Tennessee Constitution asserted to be violated are as follows:

Article XI, Section 9:
The General Assembly shall have no power to pass a special, local or private act having the effect of removing the incumbent from any municipal or county office or abridging the term or altering the salary prior to the end of the term for which such public officer was selected, and any act of the General Assembly private or local in form or effect applicable to a particular county or municipality either in its governmental or its proprietary capacity shall be void and of no effect unless the act by its terms either requires the approval by a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected. Article XI, Section 9, Constitution of Tennessee.
Article XI, Section 8:
The Legislature shall have no power to suspend any general law for the benefit or any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunitie, (immunities) or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law. Article XI, Section 8, Constitution of Tennessee.

In 1963 Chapter 53 of the Private Acts was passed providing that court officers for Knox County be paid a certain salary. This Act was ratified by the County Commissioners. Chapter 45 of the Private Acts 1973 amended the 1963 Act to permit deputies sheriff to earn fees in addition to salary. This latter Act was ratified by the County Court after Chapter 353, Private Acts 1972, purporting among other things to repeal the 1963 Act failed to be ratified by any competent governing body. Chapter 186, Private Acts 1975, purported to amend the 1963 Act so as to increase court officers’ compensation but failed of ratification. Chapter 126, Private Acts 1975, provided that court officers in Knox County serving process be paid the same as uniformed deputies sheriff. This Act also failed of ratification.

Defendants stress the foregoing “legislative history” of the questioned Act as reflected by the various amendatory acts to Chapter 53, Private Acts 1963, as just listed. However, there appears nothing doubtful or uncertain about the Act in question and such history or policy of legislation is not of determinative materiality for the reason there exists no ambiguity in the Act that needs explanation. Nashville, Chattanooga & St. Louis Railway v. Marshall County, 161 Tenn. 236, 30 S.W.2d 268 (1930). The “history” merely discloses that such legislation had been desired for a number of years.

Defendants attempt to make a material distinction between County officials and County employees. They assert that plaintiffs are merely employees and that the decision law to the effect that the legislature may regulate compensation of County officials does not contemplate such regulation of compensation of County employees. The Courts have consistently applied similar rulings to employees such as teachers, (see State ex rel. Bise v. Knox County, 154 Tenn. 583, 290 S.W. 405 [1926]; Hamilton County v. Gerlach, 176 Tenn. 288, 140 S.W.2d 1084 [1940]), and County officials such as Clerks, Sheriffs, etc., (see Union County v. Sexton, 197 Tenn. 515, 276 S.W.2d 6 [1955]; Hobbs v. Lawrence County, 193 Tenn. 608, 247 S.W.2d 73 [1952]). We see no just reason to differentiate or discriminate between the two groups.

There is a strong presumption in favor of the constitutionality of acts passed by the Legislature and its acts will not be held unconstitutional merely for reasons of policy. Dennis v. Sears, Roebuck & Company, 223 Tenn. 415, 446 S.W.2d 260 (1969).

Defendants’ first assignment of error asserts the act in question was local in effect and application in violation of Article XI, Section 9 of the Constitution of Tennessee. If the act is private or local in form or effect, it is void because the act fails to provide by its terms for approval by one of the methods stated in said article and section. If the act is a public and general law, the “Home Rule Amendment” is not applicable and Chapter 485 is valid under Article XI, Section 9.

The questioned act is certainly public and general in form. We hold it is also public in effect and application, not private or local in effect. It presently applies to two populous counties. It can become applicable to many other counties depending on what population growth is reflected by any subsequent Federal Census. The compensation of county officials has been held not to be a private or local affair within the meaning and intent of Article XI, Section 9 of the Tennessee Constitution. Hobbs v. Lawrence County, supra.

Defendants rely strongly on Farris v. Blanton, 528 S.W.2d 549 (Tenn.1975), to support their contention that the questioned act violates Article XI, Section 9. Farris v. Blanton is not here controlling. Chapter 354, Public Acts 1975, according to its caption, provided “for a run-off election in counties with a mayor as head of the executive or administrative branch of the county government.” The Court observed that:

Shelby County stands unique among counties in Tennessee. It, and it alone, has a county mayor. No other county may have such a form of government except by the affirmative action of the General Assembly. There is no general enabling act under which any other county may opt to so operate. Thus, Chapter 354 of the Public Acts of 1975 relates to Shelby County alone. Id. at 552.

Also in response to the suggestion that the County Mayor of Shelby County could be equated with the Mayor of the Metropolitan Government of Nashville and Davidson County, or with any Mayor of any consolidated government which may hereafter emerge under the Metropolitan Government enabling act, the Court further stated:

Thus it follows that Nashville and Davidson County, or any other principal city and county in the state may have a county mayor, but he would be the chief executive officer of a consolidated entity and not merely the executive head of a single coordinate branch of government. He would not be a “County Mayor” as contemplated in Chapter 345 of the Public Acts of 1975. Id. at 553.

The Court stated additionally that under the present law said Chapter 354 applied solely to Shelby County and that it could not conjecture what the law may be in the future. Said act was held to violate Article XI, Section 9 of the Tennessee Constitution because private and local in effect and application with no provision for its ratification by any approved method.

Farris v. Blanton is distinguishable on its facts and is no authority for defendants’ contention. We hold that Article XI, Section 9, is not applicable and overrule defendants’ assignment of error number one.

Defendants’ second assignment of error asserts that the act in question violates Article XI, Section 8 of the Tennessee Constitution in that it conferred on one class benefits from which others were deprived, thus superseding general law for the benefit of individuals.

The questioned act affects the counties subject to it in their governmental or political capacities or agencies. Setting minimum compensation of county officials and employees is a governmental function and it is permissible to confer benefits on private citizens as governmental employees. Hobbs v. Lawrence County, supra; Union County v. Sexton, supra; State ex rel. Bise v. Knox County, supra; Hamilton County v. Bryant, 175 Tenn. 123, 132 S.W.2d 639 (1939); Hamilton County v. Gerlach, supra. Thus the provisions of Article XI, Section 8, are not contravened by the act in question.

Should Article XI, Section 8, be otherwise applicable, the questioned act is not invalid because a reasonable classification, that is by population, affirmatively appears and satisfies the constitutional requirements. And this even though only two counties are at present subject to its terms, it appearing that all counties, presently or in the future subject to its provisions are or will be treated the same under its provisions. Union County v. Sexton, supra; Hobbs v. Lawrence County, supra.

Defendants’ assignment of error number two is overruled.

The judgment of the trial court is affirmed and defendants-appellants taxed with cost of the appeal.

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


source: Caselaw Access Project

author: COOPER, Justice. HENRY, Chief Justice.

license: Public Domain

text:
    Donald Ray EVANS, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Sept. 11, 1978.

      Jack M. Rudolph, Clarksville, for petitioner.
    William O. Kelly, Asst. Atty. Gen., Brooks McLemore, Jr., Atty. Gen., Nashville, for respondent.
   OPINION

COOPER, Justice.

Petitioner, Donald Ray Evans, was convicted of first degree burglary, with the punishment for that crime being fixed by the jury at five to ten years in the penitentiary. The punishment was enhanced to life imprisonment under the provisions of T.C.A. § 40-2801 et seq. upon the jury’s finding that the petitioner was an habitual criminal. On appeal, the Court of Criminal Appeals affirmed the judgment. We granted certiorari to clarify certain language in the principal opinion of that court concerning the number of convictions required to bring the habitual criminal statutes into play, and also to determine if the petitioner’s prior felony convictions were such as to support his sentencing as an habitual criminal. While the petitioner has raised several other issues in his assignments, we believe that these were disposed of correctly by the Court of Criminal Appeals, and do not merit further consideration by this court.

The habitual criminal act, T.C.A. § 40-2801 et seq., does not create an independent offense, but merely serves to enhance the punishment for a crime committed by a person who is an “habitual criminal.” Harrison v. State, 217 Tenn. 31, 394 S.W.2d 713 (1965). An habitual criminal is defined in T.C.A. § 40-2801 as

[a]ny person who has either been three (3) times convicted within this state of felonies, not less than two (2) of which are among those specified in §§ 39-604, 39-605, 39-609, 39-610, 39-3708, 40-2712, 52-1432(a)(1)(A) or were for a crime punishable by death under existing law . or who has been three (3) times convicted under the laws of any other state, government, or country of crimes, not less than two (2) of which, if they had been committed in this state, would have been among those specified in said §§ 39-604, 39-605, 39-609, 39-610, 39-3708, 40-2712, 52-1432(a)(1)(A) or would have been punishable by death under existing laws . . . . [,]

with the provisos that petit larceny is not to be counted as one of the three convictions, and that each conviction must be for a separate offense, committed on a separate occasion. Under T.C.A. § 40-2803, when an habitual criminal is indicted for one of the offenses specified in § 40-2801, the indictment may also include a count charging that the defendant is an habitual criminal. In the event that the defendant is convicted of this, the principal offense, the jury then considers the habitual criminal count. Harrison v. State, 217 Tenn. 31, 394 S.W.2d 713 (1965). If the jury finds that the defendant was an habitual criminal at the time he committed the principal offense, the punishment for that offense is enhanced to life imprisonment, with the further provision that the defendant is not eligible for parole. T.C.A. § 40-2806.

The principal opinion of the Court of Criminal Appeals, over the strong disagreement of two of the judges, stated that the crime of which the defendant stands charged may be used as one of the three felonies that are required under T.C.A. § 40-2801 to impose habitual criminal status on the defendant. Under this reading of the statute, the State would need to show a total of only three convictions in order to impose the increased punishment set forth in T.C.A. § 40-2806: Two prior convictions, and the present conviction, the punishment of which the State seeks to enhance. In reaching this conclusion, the author of the principal opinion relied on some admittedly misleading dicta in Pearson v. State, 521 S.W.2d 225 (Tenn.1975). Such an interpretation of the habitual criminal act is incorrect. The act provides that “when an habitual criminal as defined in § 40-2801 shall commit” [emphasis supplied] one of the enumerated felonies, the punishment for that crime will be enhanced. T.C.A. § 40-2806. Clearly, then, to bring the defendant within the ambit of the statute, the State must show that he was an habitual criminal at the time he committed the principal offense. Of necessity, such a showing must be made independently of that offense. Therefore, we hold that the present offense, the punishment of which the State seeks to enhance, may not be used as one of the convictions necessary to bring the defendant within the definition of an habitual criminal. Wright v. State, 217 Tenn. 85, 394 S.W.2d 883 (1965); Brown v. State, 186 Tenn. 378, 210 S.W.2d 670 (1948); McCummings v. State, 175 Tenn. 309, 134 S.W.2d 151 (1939).

In his assignments of error, the petitioner has questioned whether the prior crimes of which he was convicted are such as will support a finding that he was an habitual criminal at the time he committed this burglary.

In so far as it is material to this aspect of the case, the record reflects that, prior to his present conviction for burglary, the petitioner had been convicted twice of felonious escape and once of crime against nature in Tennessee, and of both larceny from the person and the attempted breaking and entering of a building in Michigan. Faced with this evidence, the petitioner quite understandably does not question whether the number of his prior convictions is sufficient to bring him within the definition of an habitual criminal. He does, however, contend that the nature of those offenses is inadequate to do so. As we noted previously, for a person to be an habitual criminal, at least two of the three convictions necessary to bring him within that status must be for certain felonies specified in T.C.A. § 40-2801. Of the crimes committed by the petitioner, only larceny from the person and crime against nature are arguably among those specified in T.C.A. § 40-2801, the former as a result of the inclusion, by reference to T.C.A. § 40-2712, of larceny among the specified offenses, and the latter as a result of the inclusion of both sodomy and buggery by reference to the same statute. If the petitioner’s conviction for larceny from the person was for “larceny” and if his conviction for crime against nature was for either “sodomy” or “buggery,” as those three terms are used in T.C.A. § 40-2712, then the petitioner’s sentencing as an habitual criminal may stand. If either proposition is false, then it may not, for then his prior crimes would not include two specified in T.C.A. § 40-2801, as required.

First, then, the question is whether the petitioner’s conviction for the offense of larceny from the person in Michigan may serve as one of the specified offenses. We note that, at the time this offense was committed, the statutes of Tennessee and of Michigan that defined this offense were, in all respects material to this case, identical. Compare Tenn.Code of 1932, § 10927, with Mich.C.L.A. § 750.357. Thus, the acts that the petitioner committed in Michigan, and which led to his conviction under the Michigan statute, necessarily would have supported a conviction of larceny from the person under T.C.A. § 39 — 4206 as it was in force at that time had they occurred in this state. The question thus becomes whether “larceny,” as that term is used in T.C.A. § 40-2712, includes the offense of larceny from the person under Tennessee law. “Larceny,” without further qualification, is a general term encompassing all of the statutory forms of larceny. See People v. Crane, 356 Ill. 276, 190 N.E. 355 (1934); State v. Cabell, 252 N.W.2d 451 (Iowa 1977). It is apparent from the language of T.C.A. § 40-2801 that the legislature understood the term’s use in T.C.A. § 40-2712 to be in this general sense, for after incorporating by reference “larceny” as used in that statute as one of the specified crimes under the habitual criminal act, they expressly excluded petit larceny from that category. Such a proviso would have been unnecessary had they not understood “larceny” as used in T.C.A. § 40-2712 to include all of the statutory forms of that crime. Thus, a conviction for any of these offenses — with the express exception of petit larceny — may serve as one of the specified offenses for the purpose of establishing a defendant’s status as an habitual criminal, and the trial judge’s instruction to the jury in this case to the effect that the petitioner’s conviction for larceny from the person could be employed for that purpose were correct.

The petitioner has also questioned whether his conviction for committing a crime against nature, as proscribed by T.C.A. § 39-707, may be counted as one of the two specified felonies. As we noted previously, T.C.A. § 40-2801 includes by reference the crimes listed in T.C.A. § 40-2712 as ones which may be used for this purpose, and among the crimes set forth in that statute are sodomy and buggery. There is no dispute but that the petitioner’s conviction for crime against nature must fall within the definition of one of the two to be considered a specified offense under T.C.A. § 40-2801.

Neither sodomy nor buggery is defined in T.C.A. § 40-2712, or elsewhere in the code. Furthermore, there appears to have been no authoritative determination by the courts of this state as to their respective meanings as employed in this statute. Therefore, we must look to the common law. Cf. McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934). At common law, these two terms do not appear to have been employed with complete consistency. However in our view of this case, only one aspect of their definitions is determinative, and on that aspect there appears to be little disagreement. The consensus of the authorities is that at common law neither sodomy nor buggery included any form of oral-genital sex, but rather, taken together, referred only to anal copulation among humans and to the copulation of a human with a beast. R. M. Perkins, Criminal Law 389-390 (1969). In view of the extreme penalty provided by the habitual criminal act, a conviction for acts outside the strict common law definitions of sodomy and buggery will not be held to be within the meaning of those terms as used in T.C.A. § 40-2712 absent a clear indication that such was the intent of the legislature. See, e. g., Chadwick v. State, 201 Tenn. 57, 296 S.W.2d 857 (1956). From this it follows that neither sodomy nor buggery as those terms are used in T.C.A. § 40-2712 is coextensive with the “crime against nature” prohibited by T.C.A. § 39-707, which has been interpreted as including several oral sex acts. See Stephens v. State, 489 S.W.2d 542 (Tenn.Cr.App.1973).

At trial, the judge instructed the jury to the effect that “crime against nature” and “sodomy” were synonymous, and that the petitioner’s conviction for the former could be counted as one of the two specified crimes required under T.C.A. § 40-2801. This instruction was incorrect, and, as the petitioner’s conviction for larceny from the person was the only other conviction that was for a specified crime that error was not harmless. As a result, the petitioner must receive a new trial on the question of whether he was an habitual criminal at the time he committed this burglary. At that trial, the judge should instruct the jury that the petitioner’s conviction for crime against nature may be considered to be one of the offenses specified under T.C.A. § 40-2801 only if the acts that resulted in his conviction for that offense were such as would have made him guilty of either sodomy or buggery at common law. The trial judge should further instruct the jury that, for this purpose, “sodomy” is defined as anal copulation among humans, while “buggery” is defined as the copulation of a human with an animal. While, as we noted previously, there is some disagreement among the authorities as to the precise meanings of these terms, the definitions that we have adopted have the advantages that they make the use of neither term redundant, and that, taken together, they embrace the core definitions of the two terms at common law.

The remaining assignments of error raised by the petitioner ai;e without merit, and are overruled. Accordingly, his conviction for burglary is affirmed. His sentencing as an habitual criminal is set aside, and the case is remanded for a new trial on the habitual criminal count of his indictment, consistent with this opinion.

BROCK and HARBISON, JJ., concur.

HENRY, C. J., and FONES, J., concur in part and dissent in part.

HENRY, Chief Justice.

I.

CONCURRING

I concur in so much of the majority opinion as holds that “the present offense, the punishment of which the State seeks to enhance, may not be used as one of the convictions necessary to bring the defendant within the definition of an habitual criminal.”

I file this concurring opinion because I feel under a form of moral compulsion to confess error in the conclusion reached by this Court in Pearson v. State, 521 S.W.2d 225 (Tenn.1975) wherein we unanimously declared:

The third conviction of one of the prescribed felonies is the triggering mechanism which brings the habitual criminal statute into play.
521 S.W.2d at 227

This admittedly erroneous dictum prompted Judge Tatum’s holding in the opinion of the Court of Criminal Appeals. For its inclusion in Pearson, as a part of the “prelude to our consideration of the petitioner’s double jeopardy claim”, 521 S.W.2d at 227, I take full responsibility.

At the time I prepared the opinion in Pearson, I was fully aware of the successive holdings in McCummings v. State, 175 Tenn. 309, 134 S.W.2d 151 (1939); Brown v. State, 186 Tenn. 378, 210 S.W.2d 670 (1948); and Wright v. State, 217 Tenn. 85, 394 S.W.2d 883 (1965). However, I was also aware that these cases either did not address the issue or did not analyze the Habitual Criminal Statutes, § 40-2801, et seq., T.C.A.

Under these circumstances I followed the plain language of the statute which is couched in terms of a defendant having been “three (3) times convicted” of the various qualifying offenses, and thereby evincing a strong public policy established by the Legislature that those who have been “three (3) times convicted” should be removed from society as a class of confirmed criminals who are “menace[s] to society and should be confined to prevent the committal of other, and probably more serious, crimes.” McCummings v. State, 175 Tenn. 309, 311, 134 S.W.2d 151, 152 (1939). Since a construction of this phase of the statutory scheme was not involved in Pearson, I had no reason to consider the matter in depth.

No reported decision affords any guidance as to the reason that a third conviction will not trigger the habitual criminal statutes. The majority opinion sheds no light upon the matter. It contains this unfortunate statement:

Clearly, then, to bring the defendant within the ambit of the statute, the state must show that he was an habitual criminal at the time he committed the principal offense. (Emphasis in original).

Habitual criminal status does not attach until a jury has so determined. What the state actually must show is that he has been convicted of three qualifying offenses prior to the time of the commission of the triggering offense and that those convictions have become final. The rationale of this statement appears infra.

I look to the cases cited by the majority and as set out hereinabove.

In McCummings, the issue is not discussed. The question there was one of notice. The defendant first learned that he was going to be proceeded against as an habitual criminal during the voir dire examination of the jury. The indictment only charged the commission of the substantive offense, with no reference to the habitual offender statutes. This Court held that such a practice did not jeopardize the accused and upheld the imposition of the habitual criminal status. The Court suggested, however, “the practice of giving him notice in the indictment, or otherwise, as early as possible.” 175 Tenn. at 318-14, 134 S.W.2d at 153. State v. Gore, 182 Tenn. 94, 184 S.W.2d 366 (1945), was not cited in the majority opinion but specifically supports the four conviction rule. There the Court held to the four conviction requirement because of the State’s concession (182 Tenn. at 97, 184 S.W.2d 366) and did not address the issue. The principal complaints made by the defendant were^ that (1) the indictment did not alert him that the Habitual Criminal Statutes would be invoked and (2) that he was not given notice that he would be proceeded against under this law until so short a time before his trial that he had no opportunity to prepare his defense. The Court rejected these insistences and affirmed.

In Brown, supra, the Court simply followed McCummings and Grandstaff. There the indictment contained a count on the Habitual Criminal Act. The Court held it to be “surplusage” because there was no requirement that he be charged with habitual criminality in the indictment. The Court held that the statute itself is notice.

It should be pointed out that the principal holdings of these three cases were obliterated by the enactment of Section 11863.5 of the 1950 Supplement to the Official Code, which modified Section 5, of the Acts of 1939 (See Sec. 40-2803, T.C.A.) so as to require the inclusion of the habitual criminal accusation in the indictment.

Wright, supra, the remaining case cited in the majority opinion, simply holds that four convictions were sufficient, without any analysis of the issue. The same is true of Beeler v. State, 206 Tenn. 160, 332 S.W.2d 203 (1959).

Thus, it will be seen that as of this time our courts have not made even a simple analysis of the issue here involved.

In the face of at least a superficial legislative intent that three convictions will trigger the application of the Habitual Criminal Act, it becomes the duty of the Court to uphold the act and apply it in accordance with the plain provisions of the statute, unless other critical considerations force a contrary construction.

Here such a consideration is present. The only reason that the third conviction may not trigger the application of the statute is that it has not become final. It may be set aside by the trial judge or may be reversed on appeal. In either event the status of habitual criminality would be obliterated. The word “convicted” used in our Habitual Criminal Act must be construed to denote a final conviction. See Anno., 5 A.L.R.2d 1808 (1949).

A criminal defendant whose convictions of three qualifying offenses have become final may be proceeded against as an habitual criminal. His indictment need not await the finality of the qualifying convictions but the final imposition of the status may not be made until all underlying convictions have become final. But the statutory scheme contemplates a trial of the habitual criminal charge at the same time as that of the underlying felony.

The trial is bifurcated, with the jury first determining guilt of the underlying felony before considering the habitual criminal count. Harrison v. State, 217 Tenn. 31, 394 S.W.2d 713 (1965). Upon the rendition of the verdict of guilty, the same jury considers the habitual criminal count. Beeler v. State, supra.

Thus, while the third final conviction forms the basis for the invocation of the Habitual Criminal Act, the fourth felony actually triggers its application and serves as the carrying vehicle to bring the habitual criminal charge before the Court.

II.

I respectfully dissent from the remainder of the opinion.

The following tabulation shows, in chronological order, petitioner’s pertinent criminal history:

Date Offense State
July 13,1961 Felonious escape Tennessee
October 11,1961 Felonious escape “
September 15,1964 Crime against nature “
March 6,1970 Larceny from the person Michigan
November 14,1973 Attempted breaking “ and entering

In the present case, the underlying felony conviction was for first.degree burglary.

I agree with the conclusion reached in the majority opinion that larceny from the person is a qualifying offense.

I disagree with and dissent from so much of the majority opinion as remands on the crime against nature question.

Judge Tatum, writing for the majority in the Court of Criminal Appeals, held that a crime against nature is a scheduled crime under the Habitual Criminal Act. His reasoning:

The term “Crime Against Nature” is an euphemism for the particular acts that constitute sodomy at common law. (citing Stephens and Locke, supra) Our courts, in effect, have held the terms “Crime Against Nature” and “Sodomy” to be synonymous.

I agree with this conclusion.

Section 39-707, T.C.A. denounces “[cjrimes against nature, either with mankind or any beast.” This “expression is a euphemism for the particular acts that constitute the offense of sodomy at common law” and “means the common law offense of sodomy.” Stephens v. State, 489 S.W.2d 542, 543 (Tenn.Cr.App.1972). It includes cunnilingus, Young v. State, 531 S.W.2d 560 (Tenn.1975); Locke v. State, 501 S.W.2d 826 (Tenn.Cr.App.1973), and fellatio, Young v. State, supra; “sodomy per anus and per os”, Cook v. State, 506 S.W.2d 955, 958 (Tenn.Cr.App.1973); and “all unnatural copulation with mankind or a beast, including sodomy.” Sherrill v. State, 204 Tenn. 427, 429, 321 S.W.2d 811, 812 (1959), quoting State v. Cyr, 135 Me. 513, 198 A. 743 (1938).

These definitions embrace all known forms of sodomy. Thus, under Tennessee law, sodomy is a crime against nature embracing carnal copulation between man and beast and all forms of unnatural, abnormal and deviant copulation between human beings, to include cunnilingus, fellatio and sodomy per anus.

As stated in Johnson, Crimes Against Nature in Tennessee: Out of the Dark and Into the Light, 5 Mem.St.L.Rev. 319, 329 (1975):

Most statutes prohibit acts that are referred to variously as sodomy, buggery, or crimes against nature. For the purpose of statutory law, these terms are equivalent; they are intended to reach the same kind of conduct.

This is the devolution of our law. It may not strictly accord with the common law, but it is too late now for us to overrule this established decisional law by attributing to the legislature an intent to use technically precise phraseology as opposed to words that have come to have a common meaning. In my view the legislature intended that all forms of crimes against nature be embraced within the term “sodomy”.

I would affirm the judgment of the Court of Criminal Appeals in respects, the requirements of the statute having been satisfied. I am authorized to state that Mr. Justice FONES concurs in Section II of this opinion.

      . Beginning with Fisher v. State, 197 Tenn. 594, 277 S.W.2d 340 (1955), a number of cases have stated that Tennessee has adopted a broad definition of the term “sodomy.” See, e. g., Stephens v. State, 489 S.W.2d 542 (Tenn.Cr.App.1973). Cf. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). Strictly speaking, however, those statements have been dicta. The statute being construed in the decisions in which the statements appear was T.C.A. § 39-707, which prohibits “crimes against nature,” and they were made in the course of providing a definition for that phrase. At no time were the courts called upon to define “sodomy,” as it is used in T.C.A. § 40-2712. Thus, it would be more accurate to say that Tennessee has adopted a broad definition of “crime against nature.” That definition has been refined over the years so that it now includes virtually every unnatural sexual act. See, e. g., Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811 (1959); Stephens v. State, supra. We have no quarrel with that proposition. From it, however, it does not follow that the definition of either “sodomy” or “buggery” is similarly broad.

      . “Buggery” has been held both to include any unnatural sexual act, and to be limited to copulation with animals. Compare Ausman v. Veal, 10 Ind. 356 (1858), with State v. Morrison, 25 N.J.Super. 534, 96 A.2d 723 (1953) and Comm. v. Poindexter, 133 Ky. 720, 118 S.W. 943 (1909). Similarly, “sodomy” has been held both to refer to any unnatural sexual act, and to be limited to anal homosexual copulation. Compare Smith v. State, 150 Ark. 265, 234 S.W. 32 (1921), with Ausman v. Veal, supra.

      . That the legislature in enacting T.C.A. § 40-2712 intended to use both buggery and sodomy in a limited sense is shown by the inclusion of both in the statute. Obviously, had the broadest meaning of either term been intended, the use of the other would have been superfluous. The derivation of the two statutes is also persuasive. The first progenitor of T.C.A. § 39-707 was the Acts of 1829, ch. 23, § 17, which proscribed sodomy and buggery specifically. Section 71 of the same chapter made both crimes infamous. In the Code of 1858, § 4843, the wording was changed so as to use “crime against nature” in the statute defining the offense. However, the infamy statute continued to use the words “sodomy” and “buggery.” Code of 1858, § 3812. The difference in the language supports the inference that the legislature did not consider the acts referred to in the two statutes to be identical.

      . This holding is not at variance with the opinion of the Court of Criminal Appeals in Beard v. State, 542 S.W.2d 389 (Tenn.Cr.App.1976). There the Court was dealing with convictions that had become final in that they had been affirmed by the Court of Criminal Appeals and certiorari was not petitioned for.

      . Harrison further holds that “[i]f the jury finds not guilty of the present crime then the habitual criminal count is not at issue.” 217 Tenn. at 34, 394 S.W.2d at 714. This is a correct conclusion because the fourth offense charged in the indictment is the carrying vehicle and without a conviction of the fourth offense there is no punishment to enhance.


author: W. E. QUICK, Special Judge.

text:
    CITY OF BARTLETT, Appellant-Plaintiff, v. Frances HOOVER, Appellee-Defendant.
    Supreme Court of Tennessee.
    Sept. 25, 1978.
    George D. McCrary, Gardner, Hester & McCrary, Memphis, for appellant-plaintiff.
    Henry H. Hancock, Julia Smith Gibbons, Memphis, for appellee-defendant; Farris, Hancock, Gilman, Branan & Lanier, Memphis, of counsel.
   OPINION

W. E. QUICK, Special Judge.

This case originated in the city court of Bartlett, Tennessee, in which appellee, Francis Hoover, was fined the sum of fifteen dollars ($15.00) for violation of Bartlett City Ordinance 76-9, Section 4, prohibiting “pay-off” on pinball machines.

On appeal to the Circuit Court of Shelby County, the case was presented on stipulation of facts, to which both parties filed motions for summary judgment addressing the question of legality of the ordinance. Upon hearing of the cause, the trial court held Bartlett City Ordinance 76-9, Section 4, to be in conflict with the general statutes of the State of Tennessee and, therefore, invalid, null and void.

Motion for summary judgment filed by defendant-appellee was accordingly sustained and the case dismissed. From the judgment of the trial court, appellant-plaintiff has appealed directly to this Court on the stipulation of facts as filed in the record.

As the record will indicate, the City of Bartlett, on December 8,1976, enacted City Ordinance 76-9, Section 4, which reads as follows:

“No award, pay-off, or delivery of anything of value, or representing, or exchangeable, or redeemable for anything of value, shall be made in any contest, tournament, league or individual play on any mechanical amusement device, and it shall be unlawful for any owner or operator of a mechanical amusement device to cause, permit, or allow the same; Provided, however, a mechanical amusement device may reward a player with repeat games so long as no other reward, pay-off or exchange for anything of value is made by the owner or operator.”

On the occasion here involved, defendant-appellee, Frances Hoover, was an employee of The Tennessee Poor Boy restaurant, specializing in fast food service, located at 6301 Stage Road. The restaurant maintained one or more pinball machines for the use and amusement of its customers. The machines were operated by the insertion of coins with a promise of reward in repeat games to those whose luck or skill should surpass a certain level of play.

On April 6, 1977, a customer of the restaurant, in the course of playing one of the pinball machines and by means of skill and/or luck, managed to win forty-one (41) repeat games.

The defendant, Francis Hoover, paid to the customer, from business funds, the sum of two dollars and five cents ($2.05) as pay-off for the repeat games which he had won. For this violation of the city ordinance, defendant was arrested and upon trial in the city court of Bartlett was fined the sum of $15.00.

It is agreed that the sole issue for determination in this case is the legality of Section 4 of Bartlett City Ordinance 76-9.

It is the position of the City of Bartlett that under the provisions of Tennessee Code Annotated, § 6-202, the City of Bartlett, and every other municipal corporation so organized, is empowered to enact such bylaws and ordinances as may be necessary and proper to preserve the health, quiet and good order of the town which includes, among other things, the power to restrain and prohibit gambling.

It is further the insistence of appellant, City of Bartlett, that the lifting of the ban on gambling on pinball machines by the enactment of Chapter 406 of the Acts of 1957, T.C.A., § 39-2033, subsections 2 and 4, does not thereby inhibit the City of Bartlett from enforcing its ordinance against “payoffs” on pinball machines and imposing penalties for violations.

It is not believed this contention can be sustained. It has long been the law of this State that a municipality, by ordinance, may not contravene the established principles of the common law or the constitution or the statutes of the State. This principle was very clearly enunciated in the early case of Farmer v. City of Nashville, 127 Tenn. 509, 515-516, 156 S.W. 189, 190 (1913) wherein the Court held:

“Whenever a by-law seeks to alter a well-settled principle of the common law, or to establish a rule interfering with the rights of an individual or the public, the power to do so must come from plain and direct legislative enactment. No implied power to pass by-laws, and no express general grant of the power, can authorize a by-law which conflicts either with the national or State constitution, or with the statutes of the State, or with the general principles of the common law adopted or in force in the [S]tate. Ordinances must be consistent with public legislative policy, may regulate, not restrain, trade, and must not contravene common right. These are general principles, universally recognized, and to some extent illustrated by our own cases.” (Citing authorities.)

Again, in State ex rel. Lightman v. City of Nashville, 166 Tenn. 191, 194-195, 60 S.W.2d 161, 162 (1933), there was involved a conflict between an ordinance of the City of Nashville and a provision of a private act of the legislature with reference to the zoning of property. In resolving the conflict, the Court held:

“When the delegation of a police power is relied on by the municipality to support measures that curtail or impair the rights of ownership and use of private property, the organic rights to acquire, possess, and enjoy the use of property, and the guaranties of due process of law and equal protection of the laws assured to individuals must be regarded. There must be a valid statute delegating the power, and in determining whether the power was delegated and subsequently exercised by a valid ordinance or regulation the courts have always applied familiar rules of statutory construction.”

It would appear, therefore, that when the constitutional rights of a citizen is at issue, or when questions of due process or equal protection of the law is involved, there can be no doubt but what an act of the Legislature will prevail over the provisions of a municipal ordinance.

But to be more specific, it appears that the precise question here involved was before this Court in Smith Amusement Company v. Mayor and Board of Commissioners of the City of Chattanooga, 205 Tenn. 712, 330 S.W.2d 320 (1959), wherein the trial court upheld Ordinance No. 4448 of the City of Chattanooga, making it unlawful to possess or display pinball machines.

On direct appeal to the Supreme Court it was held that the language of subsections 2 and 4 of Tennessee Code Annotated, § 39-2033, excluding pinball machines as gambling devices, was unambiguous as declaring the general law of the State. The Court accordingly reversed the judgment of the lower court, and held the ordinance to be unconstitutional as in derogation of the general law.

In State v. Ashley, 532 S.W.2d 289 (Tenn.Cr.App.1975) there was involved a conviction for money “pay-off” on pinball machines where the player had accumulated a certain number of credits, which is the identical situation involved in the case at bar. On appeal, the Criminal Court of Appeals, following Smith Amusement Company, supra, held that under the provisions of Chapter 406 of the Public Acts of 1957 (T.C.A. § 39-2033) pinball machines were excluded from the statutory definition of gambling devices. The conviction was accordingly reversed. See also State v. Lawson, 537 S.W.2d 448 (Tenn.Cr.App.1975).

Counsel for appellant cites a number of cases wherein municipal ordinances operating in concert with statutory regulations have been upheld. It is, of course, conceivable that both city and state may regulate certain practices, and they may differ in some particulars, and we have no argument with those authorities. But in the case at bar, where a citizen of the State of Tennessee has been arrested and charged with the violation of an ordinance, which, by specific statutory provision, is not a violation of law, we have a vastly different situation.

There can be no direct conflict between the provisions of a municipal ordinance and an act of the Legislature adversely affecting the constitutional rights of a citizen.

In a most recent opinion by Mr. Justice Harbison in Capitol News Company, Inc. et a1. v. Metropolitan Government of Nashville and Davidson County, Tennessee, 562 S.W.2d 430, 1978, this Court, in addressing the question of conflict between municipal ordinances and state statutes, held:

“ ‘The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two, and the requirements of the municipal by-law are not pernicious, as being unreasonable or discriminatory, both will stand, but municipal authorities, under a general grant of power, cannot adopt ordinances which infringe the spirit of a state law or are repugnant to the general policy of the state.’ ”

For the reasons herein indicated, the Court is of opinion the judgment of the trial court should be, and the same is hereby affirmed, at appellant’s cost.

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


author: HENRY, Chief Justice.

text:
    Allan Thomas YATES, Petitioner, v. Patsy Ingram YATES, Respondent.
    Supreme Court of Tennessee.
    Oct. 2, 1978.

      Sam M. Plummer, Chattanooga, for petitioner.
    Michael M. Raulston, Chattanooga, for respondent.
   OPINION

HENRY, Chief Justice.

This is essentially a suit for the partition of land. The Chancellor, after hearing substantial proof, divested petitioner of all his right, title and interest in real estate owned as a tenant in common, and ordered him to execute a quitclaim deed to his co-tenant. The Court of Appeals affirmed and remanded, holding that respondent furnished all the purchase money and was the beneficiary of a resulting trust.

We granted certiorari to examine this holding; but after a thorough examination of the record in light of the applicable law, we reluctantly reached the conclusion that the relief granted is beyond the scope of the pleadings and, therefore, the judgment must be vacated. We examine the pleadings.

I.

The Complaint

The body of the complaint (designated as a Petition to Sell Real Estate) contains two paragraphs. The first alleges the joint ownership by the parties of a house and lot located at 1710 Gray Road, Chattanooga, Tennessee, having a value of $35,000.00 and encumbered by an indebtedness of $16,-037.61 to Chattanooga Federal Savings and Loan Association. The second paragraph contains nothing of relevance to a partition suit. Chattanooga Federal is not made a party to the suit. No mention is made of any personal property.

Petitioner prays that the property be “sold at private sale if same can be agreed upon between the parties and upon their failure to agree, the Clerk and Master sell said property;” for a reference to the clerk and master to ascertain the equities of the parties in the real estate and “equity in personal property acquired by the parties jointly;” and for a restraining order to prevent the disposition of the personal property.

The pleadings, practice and procedure followed in this lawsuit are not in accord with the established rules with respect to the pleadings and practice of partition suits.

The land is not described in the complaint or any other pleadings, nor in the final decree. There is no allegation, beyond a bare recital of ownership, of the respective interests of the parties, or of any claim or demand of either for contributions made individually, or of any necessity for an accounting between the co-tenants. The holder of the first mortgage indebtedness is not made a party to the action. Better practice requires that all persons or entities having an interest in the property or in the distribution of the proceeds be made parties and served with process.

It is essential that the complaint in a partition suit set out a correct legal description of the property, and its situation, the interest of each of the parties, and such other facts as may be necessary to show the various rights and equities of the parties and those interested in the distribution of the proceeds of any sale or who might be affected by a partition in kind. See Gibson’s Suits in Chancery, Sec. 1106 (Fifth Ed. 1956).

There is no allegation that the premises are “so situated that partition thereof cannot be made” or “that it would be manifestly for the advantage of the parties that the same should be sold instead of partitioned.” Section 23-2128, T.C.A. Nor was there any reference to the master to determine these and other vital questions.

II.

Answer and Counterclaim

The answer admits joint ownership in unspecified proportions and asserts that petitioner has made no contribution.

The counterclaim asserts an indebtedness of $3,500.00 owed respondent by the petitioner and charges that petitioner is liable to her “for damages for personal injuries” sustained when she was “beaten and kicked severely by the counter-defendant and robbed of all her money.” For this tor-tious conduct respondent demands judgment in the sum of $70,000.00.

The counterclaim prays that “the Court divest all interests out of the counter-defendant and vest all interests in the real property in the counter-complainant,” for judgments in the sums of $3,500.00 and $75,000.00 and that the court “declare all right, title and interest in the property to be in the counter-complainant.”

The net legal effect of this pleading is to assert a claim for $3,500.00 and, when viewed with the same liberality as we have indulged the defective complaint, to invoke Section 23-2115, T.C.A., thereby seeking to have the court adjust the respective rights, titles and interests of the parties in and to the real estate. Again, the personal property is not involved.

The answer of the counter-defendant to what his counsel denominates as a cross-complaint, denies the $3,500.00 indebtedness and the infliction of personal injury upon counter-claimant.

This is the fragile pleading predicate upon which this lawsuit is based.

III.

The Issues Before The Court

From the foregoing analysis it is apparent that there are only two issues before the Court, viz:

1. The right of the petitioner to partition and the respective rights and interests of the parties in and to the proceeds of partition.
2. The entitlement of respondent to a judgment for $3,500.00.

IV.

The Right to Partition

As a general proposition of law, a tenant in common is entitled to partition, or sale for partition. Section 23-2101, T.C.A. As stated by Chancellor Gibson:

The policy of the law is to give each person his own, in severalty, and not to force a person to continue in partnership with another. Section 1105, Gibson’s Suits in Chancery (Fifth Ed.)

The statutory recognition of this to-each-his-own policy mandates that the courts decree partition of real estate owned as tenants in common if the property is susceptible of such partition. Otherwise, or if manifestly to the advantage of the parties, it must be sold. Courts have a measure of discretion as to the manner of partition but none as to the fact.

Petitioner was entitled to partition in this case.

While the Court has a statutory and inherent right to adjust the equities and settle all claims between or among the parties, it has no power to divest title out of one tenant and vest it in another. The statutory adjustment must be made by an appropriate allocation of the net sales proceeds, to be reflected in the Court’s decree on distribution.

V.

Remand

We remand this cause to the Chancery Court at Chattanooga for the following action:

a. Partition by public sale and in the usual manner.
b. The entry of judgment in favor of respondent in the sum of $3,500.00 or in such other amount as may be due her as a result of the petitioner’s wrongful appropriation of her share of the proceeds of the sale of their former home.
c. A declaration and adjustment of all rights and claims between the parties and an appropriate allocation of the proceeds of the partition sale. The judgment in respondent’s favor should be deducted from petitioner’s share of the net proceeds of the sale.

Reference to the master need not be made. The Chancellor is at liberty, without hearing additional proof, to take further and final action in this matter. We concur in all findings made by the Chancellor and Court of Appeals with respect to the financial dealings between these parties. Unless other or different questions of fact or law arise, no appeal will be granted.

The Chancellor is at liberty to allow appropriate amendments to bring the personal property of the parties before the Court, and such further amendments as may be necessary to meet the ends of justice and the demands of equity under the peculiar facts and circumstances of this case.

Reversed and Remanded.

FONES, COOPER, BROCK and HARBI-SON, JJ., concur.

      . The prayers relating to personal property are nullities since they are neither prompted by, or predicated upon, any allegation contained in the complaint.

      . The Court of Appeals remanded for the purpose of amending the pleadings to include a legal description of the property and for the entry of a revised decree.

      . It is doubtful that this portion of the counterclaim states a cause of action with sufficient specificity; however, this is of no consequence in view of the fact that this tort issue was not heard and determined by the court. While the record is meager, it contains a suggestion that this portion of the counterclaim was non-suited.

      . We assume that the property consisting of a house located on a city lot is not susceptible of partition in kind.


author: BROCK, Justice.

text:
    CITY OF LENOIR CITY and Lenoir City Utilities, Appellants, v. STATE of Tennessee ex rel. the CITY OF LOUDON, Appellee.
    Supreme Court of Tennessee.
    Oct. 2, 1978.

      Alfred Lee Hathcock, Jr., Terry G. Vann, Lenoir City, for appellants.
    Arthur M. Fowler, Fowler & Gibson, Lou-don, for appellee.
   OPINION

BROCK, Justice.

This is a mandamus action by the City of Loudon to require the City of Lenoir City and Lenoir City Utilities Board to submit to arbitration as required by T.C.A., § 6-318, for the purpose of reaching an agreement for the transfer of utility functions and facilities to Loudon.

In 1977, the City of Loudon, by Ordinance No. 569, annexed a territory that is presently provided with electricity by Lenoir City Utilities. The annexed area includes the Union Carbide Corporation, an industrial park of approximately 280 acres and a road leading to the industrial park. After annexation, Loudon, pursuant to T.C.A., § 6-318, notified Lenoir City and its Utilities Board that it desired to purchase all utility functions and facilities in the area. Lenoir City rejected the offer to negotiate the transfer, contending that municipalities are not “affected instrumentalities” under T.C.A., § 6-318, and, therefore, that it does not have to comply with the provisions of that statute.

The City of Loudon filed a petition for mandamus in the Circuit Court of Loudon County to require Lenoir City to submit the issues to arbitration as required by the statute. The case was submitted to the trial court on a stipulation of fact. The trial court found that the City of Loudon had the exclusive right to provide utility services in the newly annexed territory. An alternative writ of mandamus was issued but a discretionary appeal under T.C.A., § 27-305, was granted on the following question, certified by the trial court: Whether a municipality is “any affected instrumentality of the state” within the meaning of T.C.A., § 6-318.

In support of its contention that a municipality is not an affected instrumentality of the state, Lenoir City relies on the case of Hamilton County v. City of Chattanooga, 203 Tenn. 85, 310 S.W.2d 153 (1958), wherein it is stated concerning T.C.A., § 6-318:

. . Now it seems to us that the draftsman of the act in question has simply condensed his thoughts to include every State instrumentality other than a municipality by the expression ‘any affected instrumentality of the State of Tennessee, . . . ’ ” (Emphasis supplied.) 310 S.W.2d at 155.

It is our opinion that this language is not controlling of the issue presented. The question in the Hamilton County case was whether counties are “affected instrumentalities” under T.C.A., § 6-318. The holding of this Court was that counties are such instrumentalities. The reference to municipalities, however, was a dictum and has no authoritative value here.

T.C.A., § 6-318, provides in part:

“. . .an annexing municipality and any affected instrumentality of the state of Tennessee, such as, but not limited to, a utility district, ... or other public service district, shall attempt to reach agreement in writing for allocation and conveyance to the annexing municipality of any or all public functions, . . . ” (Emphasis added.)

The words of a statute must be given their natural and ordinary meaning. Hall Contracting Corp. v. Tidwell, Tenn., 507 S.W.2d 697 (1974); Partee v. Memphis Concrete Pipe Co., 155 Tenn. 441, 295 S.W. 68 (1927). The draftsman of the statute in question lists some state instrumentalities in order to give the general focus of the legislation. The inclusion of the phrase “but not limited to” indicates that the statutory listing is not exclusive. Clearly the statute encompasses state instrumentalities other than those listed.

It is the duty of this Court to give effect to the Legislature’s reasonable intent. Franklin Power & Light Co. v. Middle Tennessee Electric Membership Corp., 222 Tenn. 182, 434 S.W.2d 829 (1968). The meaning of the statute is determined by viewing the statute as a whole and in light of its general purpose. The general purpose of T.C.A., § 6-318, is to provide an outline of the procedure for transferring utility functions to an annexing municipality. When read in its entirety, it becomes clear that the Legislature means municipalities and any other instrumentality by the expression “any affected instrumentality of the state . . .” For example, T.C.A., § 6-318, provides that an annexing municipality shall have the exclusive right to provide utility functions and services to any territory which it annexes. To hold that municipalities are exempt from T.C.A., § 6-318, would defeat the clear intent of the Legislature to vest in the annexing municipality the authority to determine how utility services will be provided within its boundaries. Franklin Power & Light Co. v. Middle Tennessee Electric Membership Corp., supra. Our duty is to give effect to, not to modify the Legislature’s intent. We, therefore, hold that a municipality is an affected instrumentality of the State within the meaning of T.C.A., § 6-318.

The City of Loudon could allow Lenoir City to continue servicing the area by granting it a franchise, but it has elected to provide the service itself. Loudon acquired the exclusive right to make this election upon annexing the territory; Lenoir City has no authority to refuse to arbitrate as required by T.C.A., § 6-318.

For the reasons stated herein, the judgment of the trial court is affirmed and the case remanded for further proceedings consistent with this Opinion.

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

APPENDIX

“6-318. Municipal property and services. —Upon adoption of an annexation ordinance or upon referendum approval of an annexation resolution as hereinabove provided, an annexing municipality and any affected instrumentality of the state of Tennessee, such as, but not limited to, a utility district, sanitary district, school district, or other public service district, shall attempt to reach agreement in writing for allocation and conveyance to the annexing municipality of any or all public functions, rights, duties, property, assets and liabilities of such state instrumentality that justice and reason may require in the circumstances. Provided, however, that any and all agreements entered into before March 8, 1955 relating to annexation shall be preserved. The annexing municipality, if and to the extent that it may choose, shall have the exclusive right to perform or provide municipal and utility functions and services in any territory which it annexes, notwithstanding § 6-2607 or any other statute, subject, however, to the provisions of this section with respect to electric cooperatives. Subject to such exclusive right, any such matters upon which the respective parties are not in agreement in writing within sixty (60) days after the operative date of such annexation shall be settled by arbitration with the laws of arbitration of the state of Tennessee effective at the time of submission to the arbitrators, and subsection (2) of § 23-501 shall not apply to any arbitration arising under §§ 6-308 — 6-320. The award so rendered shall be transmitted to the chancery court of the county in which the annexing municipality is situated, and thereupon shall be subject to review in accordance with §§ 23-513 — 23-515 and 23-518.

“If the annexed territory is then being provided with a utility service by a state instrumentality which has outstanding bonds or other obligations payable from the revenues derived from the sale of such utility service, the agreement or arbitration award referred to above shall also provide (a) that the municipality will operate the utility property in such territory and account for the revenues therefrom in such manner as not to impair the obligations of contract with reference to such bonds or other obligations, or (b) that the municipality will assume the operation of the entire utility system of such state instrumentality and the payment of such bonds or other obligations in accordance with their terms. Such agreement or arbitration award shall fully preserve and protect the contract rights vested in the holders of such outstanding bonds or other obligations.”

      . This statute is set out in the Appendix to this opinion.


author: ROBERTS, Judge.

text:
    Jerry ANGELLE, Appellant, v. The STATE of Texas, Appellee.
    No. 57460.
    Court of Criminal Appeals of Texas, Panel No. 3.
    July 12, 1978.
    Court’s Motion for Rehearing En Banc Denied Oct. 18, 1978.
    Charles E. Myers, Beaumont, on appeal only, for appellant.
    Tom Hanna, Dist. Atty. and William G. Ogletree, Asst. Crim. Dist. Atty., Beaumont, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated robbery. The appellant pleaded guilty, and after a trial before the court, the trial judge assessed the appellant’s punishment at twenty-five years in the Texas Department of Corrections.

The appellant contends that the trial judge erred by ordering a presentence investigation and by considering, as a factor in the assessment of punishment, pending charges against the appellant. We affirm.

The record reveals that on April 13, 1977, the appellant pleaded guilty before the court. At that time, the trial judge had a written statement from the prosecutor recommending that the appellant’s punishment be assessed at twenty-five years. The trial judge also had been supplied with a written statement from the appellant and his attorney requesting that his punishment be assessed at 20 years. The trial judge deferred his decision on the punishment to be assessed and ordered a presentence investigation. At that time, the trial judge stated:

“Now, a pre-sentence report will be conducted in your case, Mr. Angelle. That means that the probation officer will interview you and get all your background and all the details of this event and everything. So when you go over there — will you take him over there and talk to Mr. Morgan. Be sure to tell him anything that you think is favorable in your case or background so he can investigate it and put it in your report.”

On May 16, 1977, the trial judge held a hearing to assess the appellant’s punishment. During the hearing, the trial judge noted that the presentence report, a copy of which had been given to the appellant, was adverse to the appellant. Accordingly, the trial judge decided to follow the prosecutor’s recommendation.

The appellant’s first contention is that the trial judge erred by ordering a presen-tence investigation and report since probation was not an issue. The appellant also contends that the report contained hearsay which was prejudicial to the appellant and that the trial judge erred by considering the hearsay contained in the report. The appellant relies on Valdez v. State, 491 S.W.2d 415, 417 (Tex.Cr.App. 1973), in which we stated:

“While not required to utilize a pre-sentence report, it is desirable in such cases that the trial court . . use the probation officer’s report and take into consideration all of the pertinent information to more intelligently determine if the person convicted is entitled to probation. . . . ’ McNeese v. State, 468 S.W.2d 800, 801 (Tex.Cr.App. 1971).”

We are not convinced that a presen-tence investigation and report are appropriate only when the issue of whether a trial judge should grant a defendant probation is raised. Rather, whenever an issue of the proper punishment is present a presentence investigation and report may be utilized to assist the trial judge in the exercise of his discretion. We hold that the trial judge did not abuse his discretion by ordering a pre-sentence investigation and report.

Furthermore, it is well established that “[t]he fact that the court considers the arrest record of a person applying for probation is not error, McNeese v. State, supra, and the court is not required to disregard information in the pre-sentence report because ‘hearsay statements’ are included.” Valdez v. State, supra at 417. [Citation omitted]. See also Clay v. State, 518 S.W.2d 550 (Tex.Cr.App. 1975). Thus, although the presentence report contained hearsay statements, the inclusion of the hearsay statements does not reflect reversible error. We further note that there is no showing that the trial judge relied on or even considered the hearsay statements. Finally, the appellant failed to object, at the hearing on May 16, 1977, to the inclusion of the hearsay statements. We are unable to conclude that reversible error is shown. Appellant’s first contention is overruled.

The appellant’s second contention is that the trial judge erred by considering statements in the presentence report and statements made by the prosecutor during the punishment hearing that reflect that there were charges pending against the appellant. The appellant relies on Article 37.07, Section 3(a), Vernon’s Ann. C.C.P., which states:

“Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty.
“(a) Regardless of the plea and 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. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred pri- or to trial, or any final conviction material to the offense charged.”

The appellant contends that Article 37.07, Section 3(a), Vernon’s Ann. C.C.P., does not permit the introduction of pending charges.

As noted above in connection with the appellant’s first contention, McNeese v. State, supra, held that it was not error for the trial judge to consider the arrest record of a defendant. McNeese was decided by this Court on June 2, 1971. At the time McNeese was decided, Article 37.07, Section 3(a) was identical to its current form.

Since Article 37.07, Section 3(a), Vernon’s Ann. C.C.P., was in its present form prior to our opinion in McNeese, we hold that McNeese is still viable. Thus, since McNeese is still the law, we have no difficulty in concluding that the trial judge would not have abused his discretion by considering the charges pending against the appellant as reflected by the presentence report and the prosecutor’s statements. Indeed, in Clay v. State, 518 S.W.2d 550 (Tex.Cr.App. 1975), we held that it was not an abuse of discretion for the trial judge to consider a pending indictment when he was considering the appellant’s motion for probation.

Moreover, although the appellant had not filed a motion for probation in the present case, the issue of what punishment was appropriate had been raised. Probation, as well as incarceration, is a form of punishment. We hold that McNeese and Clay are equally applicable to those situations, like the present case, where the trial judge orders a presentence investigation and report and probation is not an issue.

Furthermore, there is no showing that the trial judge relied on or even considered the charges pending against the appellant. Also, the appellant did not object to the inclusion of the pending charges in the presentence report or to the prosecutor’s statements concerning the pending charges. Appellant’s second contention is overruled.

The judgment is affirmed.


author: TOM G. DAVIS, Judge.

text:
    Ricardo MARES, Appellant, v. The STATE of Texas, Appellee.
    No. 55778.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.
    Appellant’s Motion for Rehearing En Banc Denied Oct. 18, 1978.

      Phil Harris, Weslaco, for appellant.
    Oscar R. Mclnnis, Dist. Atty. and Robert D. Ralston, Asst. Dist. Atty., Edinburg, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for delivery of a controlled substance, to-wit: heroin. Art. 4476-15, Sec. 4.03, V.A.C.S. The jury assessed punishment at 36 years.

I. C. Galvan, a Department of Public Safety narcotics agent, testified that he first met the appellant in July of 1975. On August 26, 1975, the appellant offered to sell him 90 ounces of “high grade heroin.” They agreed to meet the next day at the appellant’s home, where the appellant was to deliver 25 ounces of heroin in exchange of $31,250. According to the witness, on the morning of August 27, 1975, he arrived at the appellant’s house and was invited in. The appellant left in a car with an unidentified man and returned after a few minutes carrying a paper sack. The delivery took place and the witness gave a predetermined signal and other officers closed in and made the arrest.

■Initially the appellant contends that the trial court erred in conducting a portion of the proceedings in his absence.

The record reflects that on three occasions objections to certain questions were taken up in chambers with both counsel for the appellant and the State present with a court reporter. The first instance involved the State’s objection to a question asked the undercover agent on cross-examination. The court sustained the objection and appellant’s counsel noted an exception and reurged his objection. The court requested counsel to approach the bench and they then retired to the judge’s chambers. The record reflects that while in chambers counsel for the appellant and counsel for the State reargued the objection and the trial court indicated that he would continue to sustain the objection. The matters considered in chambers were strictly questions of law dealing with the scope of the cross-examination.

The second instance cited by the appellant also occurred during the cross-examination of the undercover agent. Appellant’s counsel asked to approach the bench and after a brief off-the-record discussion the trial court moved the conference to chambers. It appears that the matter was initiated by appellant’s counsel and again the issue discussed was the proper scope of cross-examination.

The third instance cited by the appellant occurred when appellant’s counsel asked to make an objection outside the presence of the jury. Counsel retired to chambers with the trial court and made his objection having to do with the admissibility of State’s Exhibits Numbers 1 and 2. The objection was overruled by the court.

After the State rested, appellant for the first time moved for a mistrial on the grounds that several motions were taken up and ruled on by the court in chambers without the defendant’s presence.

Article 33.03, V.A.C.C.P., “Presence of defendant,” provides:

“In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, the trial may proceed to its conclusion. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial. Provided, however, that the presence of the defendant shall not be required at the hearing on the motion for new trial in any misdemeanor case. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.”

In Cartwright v. State, 96 Tex.Cr.R. 230, 259 S.W. 1085 (1924), a rule which has been cited with approval in a number of cases was stated as follows:

“It is not everything that takes place in the absence of a defendant upon trial for which a reversal should be ordered. There must be an actual showing of injury or a showing of facts from which injury might reasonably be inferred.”

Appellant cites a number of cases where a defendant’s absence from the trial resulted in reversal.

In Harris v. State, 396 S.W.2d 880 (Tex.Cr.App.), reversal resulted where the defendant was not present at trial when he was convicted of a misdemeanor and assessed punishment which included a jail sentence. The absence of defendant at trial when the punishment or any part thereof is imprisonment in jail was found to be in contravention of Art. 580, V.A.C.C.P.

In Phillips v. State, 163 Tex.Cr.R. 13, 288 S.W.2d 775, it was held that the conviction must be reversed where the defendant was not present at the proceeding when his motion for new trial was overruled.

In Webb v. State, 161 Tex.Cr.App. 442, 278 S.W.2d 158, reversal was required where the court continued with the hearing on a defendant’s motion to quash the indictment after the defendant had become ill and was taken to the hospital.

Lastly, appellant cites Padillo v. State, 159 Tex.Cr.R. 435, 264 S.W.2d 715. There it was held error to admit a prior conviction where defendant had been assessed a jail term when conviction had been based upon a guilty plea entered by his attorney in the absence of the defendant.

A number of Federal Circuit Courts have addressed the question of conferences held at the bench and in chambers in the defendant’s absence. We find the opinion in Egger v. United States, 509 F.2d 745 (9th Cir.), to be instructive. In Egger, it was stated:

“Appellant complains that his absence during the trial from side-bar conferences between the Court and counsel for both sides constitutes a violation of Rule 43 F.R.Crim.P. and the Sixth Amendment. However, Egger never asked to attend any of these side-bar conferences nor was he prevented from doing so. He was, in fact, physically present throughout the trial, which is all that Rule 43 and the Sixth Amendment would seem to require. Any greater ‘right to be present’ was effectively waived by Egger’s failure to request it.
“Appellant relies upon Stein v. United States, 313 F.2d 518 (9th Cir. 1962) to support his contention that a defendant’s absence from side-bar conferences can be prejudicial, and uses the rationale of Kaufman v. United States, supra [394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969)], as a basis for raising this issue in a § 2255 motion. Stein requires that before this absence will constitute prejudicial error, ‘The presence of a defendant must bear a reasonably substantial relationship to the opportunity to defend.’ Supra, p. 522. After a careful review of the record, the Stein panel concluded that there had been no prejudice to the defendant. We are of a like opinion regarding the Appellant. Egger was represented at trial by an experienced criminal defense attorney with a reputation for responsibility and effectiveness. In each of the significant side-bar conferences from which Appellant was absent, counsel for defense argued strongly and effectively on Appellant’s behalf whenever his rights as a defendant were threatened. Egger’s presence would have added nothing substantial to his opportunity to defend. No error resulted from his absence; in any event, any error appropriately raised under the Kaufman rationale was constitutionally harmless as required by Chapman v. State of California, supra [386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)].” See also United States v. Sinclair, 438 F.2d 50 (5th Cir. 1971); United States v. Allison, 481 F.2d 468 (5th Cir. 1973).

It is difficult to imagine a trial fraught with complex legal problems when there will not be occasions where counsel and the court will confer on questions of law at the bench or in chambers out of the presence of the defendant. If injury is shown to defendant or if there are facts from which injury can be inferred resulting from such conferences, reversal is mandated. See Cartwright v. State, supra. We cannot envision harm to a defendant unless the presence of the defendant bears “a reasonably substantial relationship to the opportunity to defend.” Egger v. United States, supra.

In the instant case, no request was made by appellant or his counsel to attend the conferences at the bench or in chambers where questions of law were discussed between the court and counsel on both sides. No injury is shown to appellant, nor are there facts from which injury can be inferred. The presence of appellant at such conferences did not bear “a reasonably substantial relationship to the opportunity to defend.” We find no violation of Art. 33.-03, supra, nor do we find that appellant was deprived of any right guaranteed by the Sixth Amendment. No error is shown.

Appellant next contends that the trial court erred in admitting evidence obtained by a search warrant which did not properly describe the premises to be searched. No motion to suppress was filed, and at the time the heroin was offered into evidence no objection was made on the grounds now urged. The objection at trial must comport with the complaint made on appeal. Nothing is presented for review. Bouchillon v. State, 540 S.W.2d 319 (Tex.Cr.App.); Williams v. State, 531 S.W.2d 606 (Tex.Cr.App.); Reece v. State, 521 S.W.2d 633 (Tex.Cr.App.).

Lastly, appellant contends, “The court allowed Galvan, undercover agent to testify as to what he was told by another policeman about an informer and information and about what the other policeman said and planned to do (get a search warrant), etc. (R. 70-73). All was allowed in over Defendant’s objection that it was hearsay.”

Appellant’s complaint appears to be directed to the testimony of Galvan relative to being contacted by Officer Sanchez, who advised Galvan that he was planning to execute a search warrant at appellant’s house. The witness at no time related anything about what an informer had told Sanchez. The record reflects that Sanchez later took the stand and testified without objection relative to receiving information from a confidential informer, talking to Galvan, and securing a search warrant for appellant’s residence. Thus, the evidence about which appellant complains was admitted without objection during the testimony of Sanchez. Error, if any, was waived. Davis v. State, 516 S.W.2d 157 (Tex.Cr.App.).

We have reviewed appellant’s pro se brief and find same to be without merit.

The judgment is affirmed.

      . Our prior statute, Art. 580, V.A.C.C.P., Acts 1907, did not include the provision authorizing the trial to proceed in all felonies and misdemeanors punishable by jail where the defendant voluntarily absents himself after pleading, nor did it provide that a defendant is not required to be present at the hearing on the motion for new trial in any misdemeanor case. See “Special Commentary” by Hon. John F. Onion, Jr., following the statute. Art. 33.03, supra.

      . See Fredericksen v. State, 155 Tex.Cr.R. 287, 234 S.W.2d 872; Tischmacher v. State, 221 S.W.2d 258; Boatright v. State, 118 Tex.Cr.R. 547, 42 S.W.2d 422.

      . Federal Rule 43 provides:
      “The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. In prosecutions for offenses not punishable by death, the defendant’s voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes. In prosecutions for offenses punishable by fine or by imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial and imposition of sentence in the defendant’s absence. The defendant’s presence is not required at a reduction of sentence under Rule 35.”

      . Appellant’s objection to the introduction of the heroin in the trial court was as follows:
      “MR. MOISES VELA [defense counsel]: Now comes the defendant, Richard Mares, and outside the presence of the jury objects to the introduction of State’s Exhibits 1 and 2, being the alleged heroin in this case, on the basis that the defendant, through his attorney, never announced ready for trial, and did not have ample time to prepare his defense to the allegations in the indictment, and did not have the right, as a consequence of the lack of time, to have an independent analysis made of the substance alleged to be heroin in this case, and we object to the introduction of State’s Exhibits 1 and 2 on those bases.”