author: HENRY, Justice. HENRY, Justice.

text:
    Larry Gene GRAHAM, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Jan. 31, 1977.
    Rehearing Denied Feb. 28, 1977.

      Thomas A. Harris, Chattanooga, for petitioner.
    Tennessee Association of Crim. Defense Lawyers, Jerry H. Summers, Chattanooga, for amicus curiae.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, John Goza, Jerry S. Sloan, Asst. Dist. Attys. Gen., Chattanooga, for respondent.
   OPINION

HENRY, Justice.

We granted certiorari in this criminal action to consider four significant questions, viz:

a. The right of an indigent criminal defendant, pleading not guilty by reason of insanity, to a psychiatric examination at state expense.
b. The admissibility of hospital records under the Uniform Business Records as Evidence Act (Sections 24-712— 24-715, T.C.A.) in a criminal action.
c. The correct test for determining the question of criminal responsibility.
d. The correct jury instruction with respect to the burden of proof in criminal prosecutions wherein insanity is pleaded as a defense.

I.

Factual Background

Petitioner was convicted of bank robbery, grand larceny and assault with intent to commit murder. All convictions grew out of a bizarre series of events that occurred in the Chattanooga vicinity on 14 October, 1974.

Petitioner, a twenty-eight (28) year old man, with a history of mental disorders, marital difficulties and occupational problems, was residing in Chattanooga with his parents. He had been married and was the father of five (5) children. The record suggests his wife’s infidelity; and that she lost her life in an automobile wreck while out with other men. The children ultimately were placed in a foster home by the Tennessee Department of Public Welfare (now Department of Human Services).

He had been treated in the psychiatric ward of Baroness Erlanger Hospital from May 19, 1973 to June 19, 1973, with diagnosis of “paranoid state”, followed by treatment at Central State Psychiatric Hospital. He was again treated at Baroness Erlanger from February 15, 1974 to February 19, 1974, for the same malady, followed by treatment at Moccasin Bend Psychiatric Hospital.

On 14 October 1974, he went to the office of Dr. J. S. Cheatham, who had treated him while a patient at Baroness Erlanger, but the doctor was out. After leaving the doctor’s office, he purchased and consumed a half pint of whiskey. It should be noted that petitioner was a problem drinker if not an alcoholic.

Thus fortified he began his foray. First he went to a hardware store located in the vicinity of his home, where his father formerly worked, where he normally traded, and whose owner had known him for many years. There, in plain view, after pricing a shotgun, he took the gun and two boxes of shells and openly and slowly walked out of the store with them.

Next he went to a service station where he was known by one of the attendants and, after being refused credit, brandished the stolen shotgun and ordered the attendant to fill up his automobile. After the attendant complied, he sped off before the cap could be replaced on the gasoline tank. But, as he left he “throwed out a billfold” containing full identification.

He then drove out to the Red Bank branch of Hamilton Bank where he entered the banking room and, without mask or other disguise, robbed a teller of approximately $2400.00, sauntered out and drove off at a normal rate of speed.

By this time the police had been alerted and ultimately he was pursued by a policeman. He stopped his car and the police car stopped behind him. As the policeman got out of his car petitioner shot and wounded him, rolled him over to the side of the road, and kicked him a few times. He then took charge of the police car and drove it around for a short time with the blue light flashing and rotating. He returned, got back in his own car, and started toward Dayton. He surrendered to the Rhea County Sheriff in the vicinity of Graysville. Subsequently, he made a full confession.

Petitioner’s sole defense was not guilty by reason of insanity.

After his conviction he appealed to the Court of Criminal Appeals and that Court affirmed the verdict of the jury and the judgment of the trial court thereon.

No assignment challenges the sufficiency of the evidence. Indeed, the petitioner, testifying in his own behalf, admitted each offense. The sole issues before the Court are those hereinabove set forth.

II.

Right to Psychiatric Examination

Prior to the trial petitioner’s court appointed counsel moved the Court for an examination by a private psychiatrist, at State expense. The trial judge’s denial of this motion forms the basis of petitioner’s first assignment in this Court.

There is no statutory predicate for the appointment of a private psychiatrist. Section 33-708(a), T.C.A., provides as follows:

When a person charged with a criminal offense is believed to be incompetent to stand trial, or there is a question as to his mental capacity at the time of the commission of the crime, the criminal or circuit court judge before whom the case is to be tried may, upon his own motion or upon petition by the district attorney general or by the attorney for the defendant and after hearing, order the defendant to be evaluated on an outpatient basis by the community mental health center designated by the commissioner to serve the court or, if the evaluation cannot be made by the center, on an outpatient basis by the state hospital or the state supported hospital designated by the commissioner to serve the court. If in the opinion of those performing the mental health evaluation, further evaluation is needed, the court may order the defendant hospitalized, and if in a state hospital or state supported hospital, in the custody of the commissioner for not more than thirty (30) days for the sole purpose of further evaluation. (Emphasis supplied).

It will be noted that the statute is discretionary, since it in no sense requires such an examination, nor does it specify that the examination be conducted by a psychiatrist as opposed to a psychologist, nor does it contemplate the employment of a private practitioner.

Since there is no statutory sanction for the employment of a private psychiatrist at state expense, we look to case law for precedent. Our investigation into the law leads us to the conclusion that this is an area wherein the law has not been fully and finally settled. There is an apparent cleavage, with no qualitative or quantitative preponderance. See annotation, Right of Indigent Defendant In Criminal Case to Aid of State by Appointment of Investigator or Expert, 34 A.L.R.3d 1256, and more particularly, sections 6(c) and (d).

Pertinent to the issue is the rationale of Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), wherein the Court was dealing with the due process right of an indigent defendant to a second tier appellate review. There the Court said:

The Fourteenth Amendment “does not require absolute equality or precisely equal advantages”, (citations omitted) nor does it require the State to “equalize economic conditions.” 417 U.S. at 612, 94 S.Ct. at 2444.

In Collins v. State, 506 S.W.2d 179 (Tenn.Cr.App.1973), the defendant, prior to preliminary hearing, was committed to Central State Psychiatric Hospital for observation and a report thereof was submitted to the Court. Subsequently, both at a hearing to determine competency to stand trial and at the main trial, the reporting psychiatrist testified for the defendant, although “some of his testimony was damaging”. 506 S.W.2d at 187. The trial judge rejected a motion to appoint a private psychiatrist, at state expense, and the Court affirmed, holding that the defendant had no right to a “psychiatric advocate.”

The Collins court relied in part on United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953), which held that the state was not required to appoint a psychiatrist to make a pre-trial examination of an indigent patient.

See also Crum v. State, 530 S.W.2d 103 (Tenn.Cr.App.1975).

Essentially this is a matter that addresses itself to the judgment and discretion of the legislature. Thus far it has not seen fit to provide such services to indigent defendants.

In this particular case the defendant called as a witness a highly qualified psychiatrist whose testimony fully supported his plea of insanity. We cannot see that he was prejudiced by the action of the trial judge, in law or in fact.

We hold that an indigent defendant does not have a right under the federal or state constitution, to the services of a private psychiatrist, at state expense.

III.

Admissibility of Hospital Records

The assignment relating to the admissibility of medical and hospital records of Baroness Erlanger Hospital presents a question of first impression in this jurisdiction.

As has been pointed out, supra, petitioner had a previous history of mental problems with treatment at various hospitals. In order to show this medical history, along with the severity and degree of his previous mental difficulties, and to form a predicate for certain hypothetical questions to the psychiatrist testifying in his behalf, he attempted to introduce the records of Baroness Erlanger Hospital, covering three periods of hospitalization. The trial judge permitted their introduction for identification only.

We briefly summarize these records.

His first hospitalization in 1971 was for gunshot injuries to the right chest.

He was next admitted on May 19, 1973 with admitting diagnosis of “paranoid state.” Two days after his admission the hospital forwarded a form letter to the Mental Health Officer at Chattanooga, requesting that proceedings be initiated to commit petitioner to Moccasin Bend Psychiatric Hospital stating that he is in need of continued care and treatment and is potentially dangerous to himself and others.

The appropriate psychiatric diagnosis was listed as “paranoid schizophrenia.”

Twelve days later, Dr. J. S. Cheatham, a psychiatrist at Baroness Erlanger, addressed an official letter to the then attorney general of Hamilton County, advising:

A diagnosis of “schizophrenia, paranoid type ” has been established. In my opinion, Mr. Graham is in need of continued psychiatric care and treatment and is potentially dangerous to himself and others. (Emphasis supplied).

Pursuant to this letter an order was entered in the criminal court at Chattanooga directing that petitioner remain in the psychiatric ward at Erlanger until arrangements could be made to transfer him to Central State Hospital for further evaluation and treatment. A copy of this order was filed as a part of the medical records. The record contains nothing further in this regard, except memoranda indicating that he reached Central State Hospital and was treated there.

The records so filed next reflect that he was again admitted to Baroness Erlanger on February 15, 1974 with an admitting diagnosis of “PSYCHO, UNSTABLE & DEPRESSED” and a final diagnosis of “(1) Paranoid state” and “(2) alcohol addiction.”

The record indicates that he was discharged to Moccasin Bend for further treatment. It does not reveal how long he remained there but does show that he was there on June 17, 1974, approximately four (4) months before the episode forming the basis for this criminal action.

These are the records the trial judge refused to admit and which petitioner insists are admissible under the Uniform Business Records as Evidence Act, sections 24-712, et seq. T.C.A.

Section 24—714, T.C.A. reads as follows: Records as evidence.—A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness, testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

Prior to discussing the pertinent court decisions construing this statute, it should be pointed out that these records were offered by the Director of Medical Records at Erlanger, their custodian, who identified them and testified that they were “kept and filed in the ordinary course of the business of the hospital on each patient who is admitted there.” This prima facie qualifies the records for admission under the statute.

In Neas v. Snapp, 221 Tenn. 325, 426 S.W.2d 498 (1968), a workmen’s compensation action, the widow of the deceased workman, as a part of her testimony, introduced an autopsy report which showed the cause of death. This Court, in holding the report to be inadmissible under the Business Records Act, was prompted by the facts that (1) the widow was not the custodian; (2) nor an “other qualified witness”; and (3) there was “no evidence from which the trial judge could determine whether, ‘the sources of information, method and time of preparation’ justified the admission of the report.” 221 Tenn. at 330, 426 S.W.2d at 501.

Further the Court said:

Accordingly, a proper foundation for the introduction of the autopsy report does not appear in the record.
Every report or other writing is not admissible simply because it was made or rendered in the conduct of some business or profession. A compliance with all the qualifications of the statute is a prerequisite to admissibility. (Citing cases). Ibid.

This latter paragraph has caused some apparent confusion. What the Court was saying was that the mere fact that a report or writing was made during the conduct of some business or profession did not per se make it admissible, but such fact, coupled with compliance with the statutory requirements, did.

In Covey v. State, 504 S.W.2d 387 (Tenn.Cr.App.1973), the State called Nona Owens-by, a “licensed staff psychologist” to testify to the defendant’s sanity. She also testified that it was the opinion of the hospital staff that the defendant was sane. The State insisted that such testimony was competent under the Business Records Act.

The Court of Criminal Appeals, relying upon and quoting at length from Neas v. Snapp, supra, held that “it was error for the Court to permit Mrs. Owensby to testify as to what other alleged experts had said, and it was error to admit the report of such experts without establishing their qualifications.” (Emphasis supplied). 504 S.W.2d at 392.

With utmost deference to our colleagues of the Court of Criminal Appeals, this holding is a misapplication of Neas. The testimony as to what other staff members thought, absent an admission of the hospital records in accordance with the statutory criteria, was rank hearsay and so inadmissible—but not because of the Business Records Act, but because the State did not proceed under it. The witness merely attempted to testify to conclusions reached by her colleagues.

The introduction of the element of “qualification” into the Business Records Act has no sanction in Neas. There the first reason for declining to validate the introduction of the autopsy report was totally unrelated to the Business Records Act. It was that the admission of the report by the widow, vis a vis the custodian, gave “the benefit of an opinion of Dr. Moss whose qualifications are not shown and deprived defendant of the right of cross examination.” 221 Tenn. at 329, 426 S.W.2d at 500. This phraseology preceded the Court’s discussion of admissibility as a business record.

The admission of records and reports under the Business Records Act is subject to the same objection, from a practical standpoint; however, the mandate of the statute is clear. The records are admissible, as a general rule, when introduced in the proper manner and with the proper foundation. The qualifications of the individual preparing the record may be inquired into, may be challenged, or may be disputed but this goes to weight and not admissibility.

The Tennessee statute came under the scrutiny of the United States Court of Appeals for the Sixth Circuit in Phillips v. Neil, 452 F.2d 337 (1971), cert. denied, 409 U.S. 884, 93 S.Ct. 96, 34 L.Ed.2d 141 (1972). In a most excellent and elaborate opinion, the late Judge William E. Miller, of Tennessee, held that for the State, in a criminal prosecution, to read from medical records of Eastern State Hospital, violated the Sixth Amendment right of confrontation. Judge Miller, made the following apt observation:

It is likely that Tennessee courts would find that hospital records fall within the general application of the statute. The great weight of judicial and scholarly authority supports such a holding. Nevertheless, that proffered evidence is a business or hospital record does not alone dispose of the question of admissibility in a specific case. (Emphasis supplied). 452 F.2d at 343—44.

The Business Records Act is itself an exception to the hearsay evidence rule. It is designed to avoid the unnecessary expense, inconvenience and sometimes impossibility, of calling witnesses, particulary in — but not limited to — those instances wherein the matter sought to be established is routine or uncontroverted. In the case of hospital records, without the act, it could conceivably take numerous witnesses — doctors, technicians, nurses and attendants who joined forces to make a complete and composite history of a patient’s hospital treatment.

Thus it is that the admissibility of records made during the course of business is the general rule and their introduction is not subject to a blanket objection on the basis of hearsay. This does not mean, however, that other recognized rules of evidence may not preclude their introduction in whole, or in part.

We would not attempt to catalogue all the possibilities, but most assuredly hospital records introduced under the Act must not deprive a criminal defendant of any constitutionally guaranteed right; must be connected or related to the observation, diagnosis and treatment of the patient; must be material and relevant; must not be self-serving; and must meet all the statutory criteria. As with all other evidence, the trial judge, acting in his sound discretion, may excise from the proffered records any portions which are objectionable.

We hold that the trial court committed prejudicial and reversible error in declining to admit the Erlanger Hospital records for general evidentiary purposes.

IV.

Tests of Criminal Responsibility

The issue of the defendant’s criminal responsibility is fairly raised by the pleadings and proof. We discuss the various tests.

A. M’Naghten Rules

M’Naghten’s Case, 1 C. & K. 130, 10 CL. & F. 200, 8 Eng.Rep. 718, was decided by the House of Lords in 1843.

Daniel M’Naghten had murdered Edward Drummond, the secretary to Sir Robert Peel, the then Prime Minister of England. In the ensuing trial the jury found him to be “not guilty by reason of insanity.” History records that the Queen and her subjects, were incensed and a great hue and cry resounded throughout the realm. The matter was debated in the House of Lords and it was determined that they should “take the opinion of the Judges on the law governing such cases.” Five questions were put to the fifteen judges of England and the rules that emerged, since known as the M’Naghten rules, were as follows:

[T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. (Emphasis supplied). 8 Eng.Rep. at 722.

It will be noted that we refer to the M’Naghten rules. We do this because scholarly texts and the more precise judicial opinions use this terminology, and correctly so because there are two rules. The failure of the courts of some jurisdictions, including Tennessee, to recognize this has caused the rules to become to be called the M’Naghten rule, with a resulting confusing and narrowing of the original rules.

There are two M’Naghten tests: (1) knowledge of the nature and quality of the act and (2) knowledge of its wrongfulness. These criteria are expressed in the conjunctive in that it must be shown that the defendant knew right from wrong and knew the nature and quality of the act, in order to convict of a crime while laboring under a defect of reason or disease of the mind. If a defendant does not know the nature and quality of the act he is insane; if he knows this but does not know right from wrong, he is insane.

The failure to recognize and apply both prongs of this two-prong test operates to narrow the rules.

In Guttmacher & Weihofen, Psychiatry and the Law, Norton & Co. (1952) at page 404, the effect of applying only the right and wrong dichotomy, is expressed thusly:

A defendant may remember many details of his act. The prosecutor may emphasize this fact, may bring out all the little details that the defendant can recall, and may argue from this that the accused has been shown to know what he was doing. But memory of details is not knowledge of the nature and quality of the act. That calls for something deeper and more vital. (Emphasis supplied).

Brakel and Rock, in an American Bar Foundation Study, captioned, The Mentally Disabled and the Law, Revised Edition (2nd) 1971, at pages 379-80, pose the problem thusly:

Despite the inclusion of alternative tests in the original M’Naghten case, the most common form in which the M’Naghten test now appears is “whether the defendant had the capacity to know right from wrong in respect to the particular act charged.” Most jurisdictions which apply M’Naghten seem to assume that the requirement of “knowing the nature and quality of the act” adds nothing to the right-wrong test. A cogent argument might be made that a person may be able to retain intellectual knowledge of right and wrong and yet not understand the “nature and quality ” of his act. (i.e., its social significance). (Emphasis supplied).

It is of interest to note that Tennessee has adhered consistently to so much of M’Naghten as relates to “right and wrong.” No reported decision of this Court, in any criminal case, has discussed the “nature and quality” portion of the rules.

In their 1971 study Brakel & Rock, at page 380, state that “[t]oday M’Naghten is the sole test of criminal responsibility in fewer than half of the states. Reference to 21 Am.Jur.2d, Criminal Law, Sec. 33 and an annotation appearing in 45 A.L.R.2d at 1447, will indicate that possibly as many as twenty-seven (27) American jurisdictions basically apply M’Naghten.

Numerous criticisms of M’Naghten have surfaced in recent years. After pointing out that “[t]he most cogent criticism of the rules is that they fail to aid in the identification of many persons accused of crime who suffer from serious mental disorders,” the Tennessee Law Revision Commission, in its Proposed Final Draft, Tennessee Code of Criminal Procedure, 1973, on page 38 lists other “valid criticisms”:

(1) the concept of “right and wrong” is essentially an ethical or moral concept which forces the witnesses and decision-maker to make moral, rather than medical, social, and legal judgments;
(2) The rules evolved at a time when “faculty psychology” held sway, and today the mind is known not to be neatly compartmentalized; and
(3) the rules may well have been intended to apply only to one type of illness, that characterized by delusions.

We think that unquestionably the rules tend to enforce outmoded and erroneous psychological theories, tend to limit or distort psychiatric testimony, focus on the ability to distinguish between right and wrong, ignoring the individual’s ability to exercise self-control; focus on cognition and ignore the volitional aspects of personality; and punish persons for conduct beyond their capacity of control.

In a word, its application is an impediment to the fair trial that is a part of the birthright of every American citizen.

We hold with Justice Cardozo:

If insanity is not to be a defense, let us say so frankly and even brutally, but let us not mock ourselves with a definition that palters with reality. Such a method is neither good morals nor good science nor good law.

B.The Irresistible Impulse Test

Under this test a criminal defendant is said to be relieved of criminal responsibility when his mental condition is such as to deprive him of his willpower to resist the impulse to commit the crime, despite his knowledge of whether the act is right or wrong. This test does not stand alone as a test for insanity in any jurisdiction, and we reject it, believing that it is not sufficiently comprehensive.

C. The Product Rule (Durham)

Under this rule a defendant is excused from criminal responsibility when his act was “the product of mental disease or mental defect.” This test was announced in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954); however, it was subsequently obliterated by the same Circuit in United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (1972). We do not feel that this test is sufficiently complete or comprehensive to justify its adoption.

D. Model Penal Code

The American Law Institute in its Model Penal Code, Proposed Official Draft, Section 4.01(1) proposes the following standard:

(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.
(2) As used in this Article, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

Reference to Section 39-601 of the Proposed Final Draft of the Tennessee Criminal Code and Code of Criminal Procedure will reveal substantially the same provision. The Comment to the Model Penal Code accepts the theory of the combined M’Naghten and irresistible impulse tests that take “account of the impairment of volitional capacity no less than impairment of cognition,” but it rejects both of these tests as being too narrow.

It is obvious that the phrase “to appreciate the criminality of his conduct” in the Model Penal Code is a substitute for the M’Naghten clause “to know the nature and quality of the act he was doing.”

While we recognize that this test, like any other test of insanity, is not perfect and will itself produce problems, we are persuaded that it is the best test of insanity in existence today, combining as it does, the essential elements of cognition, volition and capacity to control behavior. In actuality it is essentially a refinement and restatement of the full M’Naghten rules.

E. The M’Naghten Rule in Tennessee

Tennessee case law, pertinent to the issue of criminal responsibility, began with Dove v. State, 50 Tenn. 348 (1871) and evolved in consistent fashion, with emphasis being placed upon the “right from wrong” aspects of the M’Naghten Rules.

The often cited case of Spurlock v. State, 212 Tenn. 132, 368 S.W.2d 299 (1963) marks the last time this rule came under careful scrutiny in this Court. The Court correctly noted that the M’Naghten Rule “is followed by every State except one (State v. Pike, 49 N.H. 399), and every Federal Circuit except two (Durham and Currens [United States v. Currens, 290 F.2d 751, 3rd Cir.]) . . .” 212 Tenn. at 140, 368 S.W.2d at 303.

In the intervening thirteen (13) years the rule of M’Naghten has been substantially eroded. As heretofore pointed out, as a maximum, it is followed only by twenty-seven (27) state jurisdictions. Further reference to the same A.L.R. and American Jurisprudence citations as those contained in subsection A of this Section of this opinion, will reveal that the ALI Penal Code test has been adopted in at least seventeen (17) state jurisdictions and in all the federal circuits except the First.

F. Federal Cases

We look briefly at the federal jurisdictions.

Since Spurlock, supra, the District of Columbia departed from the Durham Rule and adopted a variation of the tests proposed by the American Law Institute in its Model Penal Code. United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (1972). See also Bethea v. U. S., 365 A.2d 64 (D.C.App. 1976). The rule announced in United States v. Currens, 290 F.2d 751 (1961) a modified version of the Model Penal Code continues in effect in the Third Circuit.

Six months after Spurlock the 10th Circuit handed down its decision in Wion v. United States, 325 F.2d 420 (10th Cir. 1963). Judge Murrah, writing for the Court in adopting Section 4.01(1) of the ALI Model Penal Code, stated:

We think this simple test of criminal responsibility allows the behavioral scientists “full freedom to put their professional findings and conclusions before the court and jury * * (Citations omitted). “[e]ven under the right— wrong test, no evidence should be excluded which reasonably tends to show the mental condition of the defendant at the time of the offense”. (Citation omitted). This should go far toward bridging the gulf between psychiatry and the law, if indeed, there is one, and it will also give the trial judge a definition which he can articulate to the lay jury. 325 F.2d at 430.

In 1966 the Second Circuit joined the parade of jurisdictions moving toward the ALI Model Penal Code. In United States v. Freeman, 357 F.2d 606 (2nd Cir. 1966), Judge Kaufman set the moral tone and the underlying philosophy of the opinion as follows:

The criminal law it has been said, is an expression of the moral sense of the community. The fact that the law has, for centuries, regarded certain wrong-doers as improper subjects for punishment is a testament to the extent to which that moral sense has developed. Thus, society has recognized over the years that none of the three asserted purposes of the criminal law — rehabilitation, deterrence and retribution — is satisfied when the truly irresponsible, those who lack substantial capacity to control their actions, are punished. 357 F.2d at 615.

The court, after a scholarly and elaborate discussion of the M’Naghten Rules, the history of their adoption, the numerous vices inherent in them, and after discussing other rules, traced the history of the formulation of the ALI Model Penal Code and concluded that Section 4.01 was “the soundest [test] yet formulated” and adopted it as the standard of criminal responsibility in the Second Circuit. 357 F.2d at 622.

In 1972, the Eighth Circuit, in United States v. Frazier, 458 F.2d 911, 915 (8th Cir. 1972), adopted the full ALI Model Penal Code rule holding:

[W]e simply find that the substance of the ALI rule invites a broader medical-legal investigation, provides improved means for communication by medical specialists, offers a better basis for understanding of complex issues by triers of fact and overall serves the desired end in the administration of our criminal laws. 458 F.2d at 917.

The Seventh Circuit, in 1967, in United States v. Shapiro, 383 F.2d 680, 685 (7th Cir. 1967) (en banc), adopting the full ALI rule, but substituting the word “wrongfulness” in the place of “criminality” so that the rule requires an appreciation of the wrongfulness of conduct as opposed to its criminality.

The following year (1968), the Fourth Circuit in United States v. Chandler, 393 F.2d 920 (4th Cir. 1968), in an opinion by Chief Judge Haynsworth, rejected the M’Naghten test and adopted the full Model Penal Code Rule, observing that:

The American Law Institute’s formulation has achieved wide acceptance . It substantially meets all of the criticism of the old rules and remedies their presently apparent deficiencies. It avoids the misunderstandings inherent in an undiscriminating use of the Durham prescription. For the present, for indiscriminate application, it is, in our opinion, the preferred formulation. With appropriate balance between cognition and volition, it demands an unrestricted inquiry into the whole personality of a defendant who surmounts the threshold question of doubt of his responsibility. Its verbiage is understandable by psychiatrists; it imposes no limitation upon their testimony, and yet, to a substantial extent, it avoids a diagnostic approach and leaves the jury free to make its findings in terms of a standard which society prescribes and juries may apply. 393 F.2d at 926.

The Fifth Circuit in Blake v. United States, 407 F.2d 908 (5th Cir. 1969), in a most excellent opinion by Judge Griffin Bell, recognizing the number of federal jurisdictions that had adopted the Model Penal Code, and stressing the value of uniformity, adopted the full Code, or both paragraphs of Section 4.01. (See supra, and Sec. V, infra.)

The opinion of the Sixth Circuit in United States v. Smith, 404 F.2d 720 (6th Cir. 1968) has come under our particular scrutiny. There the Court, in a most excellent opinion by Judge Edwards, made the following apt observation:

The primary distinction between the Cur-rens test as formulated by Judge Biggs and the ALI formulation is that the ALI retains specific reference to the M’Naghten test of knowledge of the wrongfulness of the act committed. Of course, the problem with M’Naghten as a test of insanity was that it defined a very limited class of the insane. M’Naghten was certainly deficient as an exclusive test. But the ALI test eliminates the exclusive character of M’Naghten while retaining its substance as one of the tests of criminal responsibility. We do not regard this difference as a critical one. 404 F.2d at 726.

The Court adopted the first paragraph of the Model Penal Code classifying it as “a test which a jury will readily comprehend; one which comports with and makes available modern scientific knowledge and one which may serve to aid the continuing development of the federal law”, 404 F.2d at 727, and outlined questions for jury consideration relating to the criminal responsibility of a defendant pleading insanity as follows:

(1) Was he suffering from a mental illness at the time of the commission of the crime?
(2) Was that illness such as to prevent his knowing the wrongfulness of his act?
(3) Was the mental illness such as to render him substantially incapable of conforming his conduct to the requirements of the law he is charged with violating? Ibid.

Then the Court observes that “[a] negative finding as to the first question or negative findings as to both the second and third questions would require rejection of the insanity defense. An- affirmative finding as to the first question, plus an affirmative finding as to either the second or third question, would require a jury verdict of ‘not guilty’ because of defendant’s lack of criminal responsibility.” Ibid.

We approve these questions since they succinctly state the precise issues that would be raised under the application of the Model Penal Code.

In Spurlock, supra, the Court followed Andersen v. United States, 237 F.2d 118, decided by the Ninth Circuit in 1956.

In Wade v. United States, 426 F.2d 64 (9th Cir. 1970) (en banc), adopted Section 4.01(1) of the Model Penal Code.

V.

Adoption of ALI Rule

We adopt the American Law Institute Model Penal Code, Section 4.01 (1962), reading as follows:

(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.
(2) As used in this Article, the terms “mental disease or defect” do not include any abnormality manifested only by repeated criminal or otherwise antisocial conduct.

It will be noted that we have used the word “wrongfulness” in the place of “criminality” so that the rule requires an appreciation of the wrongfulness of conduct as opposed to its criminality.

Trial judges will formulate charges which will accurately reflect this standard. In this connection, we expressly approve the questions set forth in United States v. Smith, 404 F.2d 720, at page 727 (6th Cir. 1968). We also invite attention to suggested charges in United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, at page 1008 (1972), and in Wion v. United States, 325 F.2d 420, at 430 (10th Cir. 1963). While we do not approve these referenced charges in their verbatim form, we do commend them as sources for the consideration of trial judges, along with existing Tennessee law. The so-called M’Naghten Rules will not be charged.

We adopt the Model Penal Code primarily because it is simpler to adopt a new rule in harmony with the all but universal federal rule and with the rule being adopted by a significant number of state jurisdictions, and emerge with a better based standard of criminal responsibility. We recognize that there is not a vast difference between the rule we adopt and the M’Naghten Rules as they should be applied. The new rule, however, does spell out the specifics of volition and the individual capacity to control his conduct. These elements inhered in the M’Naghten Rules, but it is evident that they were not applied. In the last analysis the determination of insanity is for the jury and when it has had the advantage of competent testimony—medical and lay—we are persuaded that under any rule, correct conclusions will be reached. We feel that the formulation of the Model Penal Code will be easier for juries to understand and will provide a simpler basis for jury instruction.

We feel that it is appropriate that we call attention to a deficiency in Tennessee law relating to the disposition of a criminal defendant found not guilty by reason of insanity. Sec. 33—709, T.C.A. provides that under these circumstances “the district attorney-general may seek hospitalization . if he determines hospitalization to be justified.” (Emphasis supplied).

We feel compelled to recommend to the Legislature that this particular provision of the law 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. See Sec. 40-2321, Proposed Penal Code, Tennessee Law Revision Commission. We do not think the disposition of such a defendant should be left to the discretion of the district attorney-general.

The Model Penal Code standards will be applied (1) in all criminal trials or re-trials beginning on or after the date of the release of this opinion and (2) in all cases wherein appropriate special requests were submitted during the trial of the action, or the issue otherwise was fairly raised in the trial court and supported by competent and credible testimony, and the conviction has not become final. Under no set of circumstances will the rule be applied to the advantage of any defendant whose conviction has already become final, i. e., where appellate review through the courts of this state has been completed.

VI.

Standard of Proof

The remaining assignment of error addresses itself to the burden of proof in those cases where the defendant enters a plea of “not guilty” by reason of insanity.

The rules are well-established in this jurisdiction. If the evidence adduced either by the defendant or the State raises a reasonable doubt as to the defendant’s sanity, the burden of proof on that issue shifts to the State. The State must then establish the defendant’s sanity to the satisfaction of the jury and beyond a reasonable doubt. Collins v. State, 506 S.W.2d 179 (Tenn.Cr.App.1973); Covey v. State, 504 S.W.2d 387 (Tenn.Cr.App.1973). The jury should be instructed to that effect.

In the instant case the jury instruction was not as specific on this point as it should have been; however, the trial judge repeatedly charged the jury that it was the duty of the State to establish its case beyond a reasonable doubt. When consideration is given to the charge in its entirety, we are unable to say that it was prejudicially erroneous.

The judgments of the Court of Criminal Appeals and the Trial Court are reversed on the basis of the error in excluding medical records under the Uniform Business Records as Evidence Act, and this cause is remanded for re-trial under the standards delineated in this opinion. We 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. In this case, we have adopted a new standard of criminal responsibility considered by us to be more in keeping with the demand of contemporary American jurisprudence and more consonant with considerations of justice.

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

OPINION ON PETITION TO REHEAR

HENRY, Justice.

The petition of the State of Tennessee for a rehearing is respectfully denied. 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.

      . Petitioner’s court appointed counsel is commended for vigorous and effective counsel, guidance and representation at all stages of this prosecution and the ensuing appeals.

      . The petitioner was examined by a psychologist, pursuant to action taken by the trial judge. See Section IV, infra.

      . In the instant case the two physicians who primarily made the hospital records had relocated themselves outside the state and were not available.

      . See subsection E of this section, infra.

      . Arizona, Arkansas, California, Delaware, Florida, Georgia, Hawaii, Iowa, Kansas, Louisiana, Minnesota, Mississippi, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Washington and Wyoming.

      . “What Medicine Can Do for Law,” from Law and Literature and Other Essays and Addresses by Benjamin N. Cardozo, Harcourt, Brace, 1931 at p. 198.

      . Model Penal Code, Section 4.01, Comments, at 156-59.

      . Alaska, Connecticut, Idaho, Illinois, Indiana, Kentucky, Maine, Maryland, Massachusetts, Missouri, Montana, Ohio, Texas, Vermont, West Virginia, Wisconsin and District of Columbia.

      . See Sec. V, infra.


source: Caselaw Access Project

author: FONES, Justice. BROCK, Justice, HENRY, Justice,

license: Public Domain

text:
    Mattie Wilson PAIRAMORE, Petitioner, v. William Sanford PAIRAMORE, Respondent.
    Supreme Court of Tennessee.
    Feb. 28, 1977.

      Walker T. Tipton, Covington, for petitioner.
    John E. Procter, Covington, for respondent.
   OPINION

FONES, Justice.

This divorce case is before this Court for the second time. The first petition for cer-tiorari in 1974, was denied but the Court filed a memorandum opinion suggesting that Mrs. Pairamore’s claim for homestead under T.C.A. § 36 — 824 be given consideration on remand. She had expressly asked for homestead for the first time in her 1974 certiorari petition to this Court but her complaint had asked that her husband’s interest in the family residence be divested out of him and vested in her, held to be a sufficient prayer to support an award of homestead in Trimble v. Trimble, 224 Tenn. 571, 458 S.W.2d 794 (1970). Neither the trial court nor the Court of Appeals had considered homestead and the decree of the Court of Appeals, insofar as relevant here, had awarded petitioner periodic alimony in a nominal sum and remanded the cause to the trial court for the enforcement of its decree and retention in that court for any modification required by a change of circumstances of the parties.

On remand to the General Sessions Court of Tipton County, that court decreed that it did not have jurisdiction to order a sale of the family residence for the purpose of awarding homestead out of the proceeds thereof. On petitioner’s appeal from that order to the Court of Appeals that Court held that its former decree had not provided for homestead and, by implication, that this Court’s memorandum opinion denying certiorari had no force and effect whatever on the finality of the Court of Appeals decree, which left nothing within the jurisdiction of the trial court except the enforcement and/or modification of periodic alimony-

We granted this second petition for cer-tiorari, where, obviously, the primary question is the extent of the jurisdiction, of this Court on a petition for the writ of certiorari that is disposed of by denial of the writ accompanied by an opinion.

The question of when this Court acquires jurisdiction on certiorari has been considered in a number of cases. There is a line of cases using language to the effect that this Court has no jurisdiction whatever unless and until the writ of certiorari is granted. Other cases hold that jurisdiction vests in this Court upon the timely filing of a petition for the writ of certiorari.

Cases holding that jurisdiction is dependent entirely upon the granting of the writ are Red Top Cab Co. v. Garside, 155 Tenn. 614, 298 S.W. 263 (1927), Cantrell v. Louisville & N. R. Co., 179 Tenn. 180, 163 S.W.2d 824 (1942), and McAllester v. McAllester, 217 Tenn. 226, 396 S.W.2d 363 (1965).

In Red Top the Court said:

“The bare filing of such a petition does not even remove the case to this Court.” 155 Tenn. at 617, 298 S.W. at 264.

In Cantrell the Court said:

“Unless the writ of certiorari be granted, the case does not get into this court. It is not until the writ is granted that ‘the original transcript . . . shall be filed in the supreme court.’ When certiorari is denied, the result is that this court thereby refuses to take jurisdiction of the case.” 179 Tenn. at 182, 183, 163 S.W.2d at 825.

In McAllester the Court having written and filed in the cause an opinion denying the writ of certiorari, on petition to rehear, a second opinion was written and published wherein the Court said:

“[W]e have no jurisdiction to entertain this motion since this case is not now and has never been before this Court.
It would seem to us axiomatic that the denial of the writ would be sufficient to show that we refused to take jurisdiction because we felt that the action of the Court of Appeals was correct.” 217 Tenn. at 232, 396 S.W.2d at 366.

Thereafter the Court said:

“We refused to grant the writ in this case and filed a memorandum opinion in which we set forth our reasons for such action and ordered that it be filed. In most cases the Clerk is directed to notify counsel that the petition has either been denied or granted and nothing more. If granted, of course, the case is set down for argument, as required by statute. If denied the matter is ended as we have refused to take jurisdiction.” 217 Tenn. at 232, 233, 396 S.W.2d at 366.

Again, the Court said:

“It is obvious that we have no jurisdiction of this case because we cannot both deny the writ and at the same time take jurisdiction of the case.” 217 Tenn. at 233, 396 S.W.2d at 366.

On the other hand, in Enamelware Company v. Smith, 168 Tenn. 203, 76 S.W.2d 644 (1934) this Court, in the course of considering the requirements of the certiorari procedure after judgment in the Court of Appeals said:

“It is, therefore, the filing of a sworn petition within the 45-day period, unless within that period the time is extended, that confers jurisdiction upon this court.” 168 Tenn. at 206, 76 S.W.2d at 645.

Mr. Justice Tomlinson writing for the Court in DePew v. King’s Inc., 197 Tenn. 569, 276 S.W.2d 728 (1955) expressly approved the foregoing quote.

The unmistakable purpose of the Legislature in providing for review of the final judgments of the intermediate appellate courts by certiorari was to confer jurisdiction upon this Court the instant a petition for the writ of certiorari, meeting the requirements of T.C.A. §§ 27-819-27-823 inclusive is filed in the appropriate clerk’s office.

We think that T.C.A. § 16-411 and Ramsey v. Mutual Supply Company, 221 Tenn. 437, 427 S.W.2d 211 (1968) support that position.

T.C.A. § 16-411 reads as follows:

“16-411. Effect of judgments. — The Court of Appeals is a court of record, and its judgments, after expiration of the time for filing petition for writ of certio-rari with the Supreme Court and the time during which a duly filed petition for writ of certiorari remains undisposed of, shall be executed by all necessary and proper writs, unless superseded, reversed or modified by the Supreme Court. [Acts 1925, ch. 100, § 13; Shan.Supp., § 6325al3; mod. Code 1932, § 10627; mod. C. Supp. 1950, § 10627.]”

In Ramsey, this Court held that (1) while the filing of a petition for certiorari does not vacate the decree of the Court of Appeals, the decree is unenforceable by that Court during the period mentioned in T.C.A. § 16 — 411 and (2) since the 1950 amendment, the writ of supersedeas is unnecessary from and after a timely filing of a petition for certiorari, because the decree of the Court of Appeals remains unenforceable during the time that such petition is pending in this Court.

Of course, it is elementary that while jurisdiction is in this Court, or during the period within which a petition for cer-tiorari may be filed, neither the intermediate court nor the trial court can assume jurisdiction. While that issue is not directly involved here, instances have occurred in both civil and criminal cases, recently, demonstrating a failure to recognize this principle which is implicit in the statutory certio-rari procedure discussed above.

Among the definitions of the word jurisdiction appearing in Black’s Law Dictionary, Fourth Edition, are the following:

“The word is a term of large and comprehensive import, and embraces every kind of judicial action, [citations omitted] It is the authority by which courts and judicial officers take cognizance of and decide cases.”

It is the duty of this Court to make a disposition of every petition for the writ of certiorari. We decide each case that comes to this Court by petition for certiorari by granting or denying the writ. When we deny the writ, we have not “refused to take jurisdiction” as was said in McAllester and other cases but have made a final disposition of the case by approving the final decree of the Court of Appeals. Without jurisdiction this Court is without authority to review and deny a petition for certiorari.

Occasionally, along with the denial of the writ, an opinion is filed and less often, that opinion is published as in Cantrell, McAllester, Gillespie v. Martin et al., 172 Tenn. 28, 109 S.W.2d 93 (1937), Pass v. State, 181 Tenn. 613, 184 S.W.2d 1 (1944), and Watts v. Putnam County, 525 S.W.2d 488 (Tenn.1975). Also, in Cunningham v. Union Chevrolet, 177 Tenn. 214, 147 S.W.2d 746 and on petition to rehear, 177 Tenn. 226, 148 S.W.2d 633 (1941), Powers v. L. & N. R. Co., 183 Tenn. 526, 194 S.W.2d 241 (1946), and Franklin v. State, 496 S.W.2d 885 (Tenn.1973) opinions were filed and published and the writ was denied. But, the results reached by the final decree of the Court of Appeals were not changed in any of the cases mentioned above. The obvious conclusion to be drawn is that this Court deemed it appropriate to address some issue or issues raised in the petition for the writ of certiorari and because the final decree of the intermediate court was to remain unchanged it was deemed unnecessary to grant the writ. It is apparent that in the eases cited and others the opinion of the intermediate court, as distinguished from its final decree, was changed or modified by this Court.

Some certiorari petitions are disposed of by denial of the writ, concurring in results only. By precedent, and more recently in accord with Supreme Court Rule 31, such a denial evinces this Court’s judgment that the opinion of the Court of Appeals should not be published. Thus, there are two methods employed by this Court when denying the writ of certiorari that can be said to affect the opinion of the Court of Appeals, without affecting the final decree.

The principles of law enunciated in published opinions of this Court that simultaneously deny certiorari have not been questioned or challenged on the grounds that the Court had no jurisdiction, unless and until certiorari was granted, and therefore its pronouncement was a nullity. For example, the opinion in Franklin established the law in Tennessee with respect to those factual situations under which retroactive application of the rule of Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972) should be considered and the guidelines for making the ultimate determination of constitutionally prejudicial error. That case has been cited and followed by the Court of Criminal Appeals, this Court and implicitly approved by the United States Supreme Court in Robbins v. Tennessee, 414 U.S. 996, 94 S.Ct. 348, 38 L.Ed.2d 233 (1973). Cantrell and Watts, among other cases, have similarly established principles of law in this State that remain unquestionably the present controlling law on the issues addressed.

The concept of this Court’s jurisdiction above expressed is obviously in conflict with statements appearing in Red Top, Cantrell and McAllester, to the effect that a case is “not now and has never been before this Court” unless the writ of certiorari is granted. We regard those statements as completely erroneous. It is unthinkable that the law indulges in fictions on the fundamental question of jurisdiction. It is indeed an anomaly if we are relying upon controlling precedent that has been established in cases that were never brought before this Court.

Nevertheless, we cannot escape the conclusion that it is improper for this Court to change or modify a final decree of the intermediate appellate courts and deny the writ. We believe this conclusion is necessary and desirable for the orderly administration of justice if not mandated by the relevant statutes and the precedent established by this Court’s procedure on review of certiorari petitions since the enactment of Chapter 100, Public Acts, 1925. But, the reason, in our opinion, is not that this Court is without jurisdiction until the writ is granted but simply that denial of the writ necessarily puts the stamp of approval on the results reached in the final decree of the intermediate court and it is therefore inconsistent for this Court to change or modify that decree, as distinguished from the opinion, unless the writ be granted.

From what has been said, it follows that insofar as this Court’s memorandum opinion denying the writ modified the final decree of the Court of Appeals it was of no force and effect. The result reached by the Court of Appeals is affirmed and the cause remanded to the General Sessions Court of Tipton County for enforcement and/or modification of the decree of the Court of Appeals with respect to alimony.

HARBISON, J., concurs.

BROCK, J., and COOPER, C. J. (see separate opinion).

HENRY, J., concurs in part, dissents in part (see separate opinion).

BROCK, Justice,

concurring.

I concur in the decision of the Court affirming the decree of the Court of Appeals. However, I deem it advisable to state my views respecting the acquisition and exercise of jurisdiction by this Court in cases brought to it by petition for certiorari from the Court of Appeals and the Court of Criminal Appeals, since they differ considerably from the views stated in the opinion of the Court.

By “jurisdiction” I mean “lawful authority to act”; indeed the word is derived from the Latin “juris” and “dico,” and means “To speak by the law.” 50 C.J.S. 1089. I think it important to distinguish between the jurisdiction of this Court to entertain, i. e., grant or deny, a petition for certiorari and its jurisdiction to determine the merits of the case in question.

Jurisdiction to entertain such petitions is granted by T.C.A. §§ 27-819 — 27-823 and T.C.A. § 16-452. But, jurisdiction to determine the merits of the case is not finally acquired unless and until this Court grants the writ of certiorari. The mere filing of a petition for certiorari with the clerk of this Court does not confer jurisdiction to determine the merits of the case; that jurisdiction is acquired under the statutes only if “The Supreme Court, or any judge thereof . ” shall “. . . require, by (granting the writ of) certiorari, the removal to that court for review” of the case in question. In my view, this has been the consistent understanding and holding of this Court for many years. Cantrell v. Louisville & N. R. Co., 179 Tenn. 180, 163 S.W.2d 824 (1942); Kendall Oil Co. v. Payne, 200 Tenn. 600, 293 S.W.2d 43 (1956); McAllester v. McAllester, 217 Tenn. 226, 396 S.W.2d 363 (1965); Red Top Cab Co. v. Garsides, 155 Tenn. 614, 298 S.W. 263 (1927). I think it is a serious mistake to depart from it. Confusion is bound to result from the departure suggested in the opinion of the Court; this very case is ample proof of that.

Of course, this Court and any judge thereof may file an opinion upon the occasion of the denial of a writ of certiorari. But it is my view that such opinion should be limited to a statement of the reasons for refusal to take jurisdiction of the merits of the case; anything more is dictum and amounts to an advisory opinion which we are not authorized to give. Crane Enamelware Co. v. Smith, 168 Tenn. 203, 76 S.W.2d 644 (1934); Reed v. Rhea County et al., 189 Tenn. 247, 225 S.W.2d 49 (1949).

I am authorized to state that Chief Justice COOPER concurs in this concurring opinion.

HENRY, Justice,

concurring in part; dissenting in part.

I.

Concurring

I fully concur in so much of the majority opinion as holds that prior decisional law to the effect that a case is “not now and has never been before this Court” unless the writ of certiorari is granted, is “completely erroneous”.

There is no escape from the conclusion that on the instant of the filing of a petition for the writ of certiorari, the Court acquires a limited or preliminary or inchoate jurisdiction. Such jurisdiction vests for the purpose of enabling the Court to determine the merit of the application for review by writ of certiorari. Without this limited jurisdiction the certiorari process would be utterly destroyed in that jurisdiction could never vest to even consider the petitions. If we hold that jurisdiction only vests when the writ if granted, the interest of justice would require a grant in all cases. This would pervert the process by the imposition of a work load that would destroy the functional effectiveness of this Court.

Upon the filing of the writ, the Court in the exercise of its sound judicial discretion may utilize any one of a number of procedural options.

First, it may grant the writ and dispose of it in accordance with the various options set forth in § 27-821, T.C.A.

Second, it may deny the writ without assigning any reason. This simply means that the Court has declined to accept jurisdiction for any purpose except consideration of the merits of the petition in order to determine whether to grant or deny.

Third, it may deny the writ with a written memorandum or opinion, which may or may not be designated for publication. This means that the Court has elected to decide the controversy, or clarify the law, or considers it desirable to outline procedure on remand or that it has used this means of advising the trial court and counsel of the Court’s views on a controlling principle of law; or for other good and sufficient reasons, considers this to be proper procedure.

In Cantrell, supra, the Court wrote an opinion denying certiorari in order to clarify the law with respect to the necessity for arguments on petitions for certiorari.

In McAllester, supra, the Court clarified a point of procedure in chancery cases, examined the evidence, commented upon its weight, and denied the writ.

In Gillespie v. Martin et al., 172 Tenn. 28, 109 S.W.2d 93 (1937), the Court upheld the Court of Appeals, decided the controversy and denied the writ.

In Pass v. State, 181 Tenn. 613, 184 S.W.2d 1 (1944), the Court took jurisdiction, decided the case and denied the writ.

In the recent case of Watts v. Putnam County, 525 S.W.2d 488 (Tenn.1975), we took jurisdiction and denied the writ, in an elaborate opinion for the guidance of the trial judge on remand and to clarify the law by construing a troublesome statute.

II.

Dissenting

Regardless of the reasons prompting the Court to write an opinion in conjunction with the denial of a writ of certiorari, the fact remains that the opinion so written or the mandate entered is entitled to respect as the official action of this Court. Upon remand the action of this Court becomes the law of the case and is conclusive in subsequent proceedings. City of Knoxville v. Connors, 139 Tenn. 45, 201 S.W. 133 (1917); Ray et al. v. Nanney, 21 Tenn.App. 618, 114 S.W.2d 51 (1938). See also Redwood v. Raskind, 49 Tenn.App. 69, 350 S.W.2d 414 (1961), and Gill v. Godwin, 59 Tenn.App. 582, 442 S.W.2d 661 (1968).

I would hold that the memorandum opinion of this Court dated April 1, 1974 suggesting that consideration be given to petitioner’s claim for homestead on remand and holding that such right is assertible on remand is the law of the case and, as such, is binding upon the Court of Appeals. That court has no authority to overrule or modify a decision of this Court. Bloodworth v. Stuart, 221 Tenn. 567, 428 S.W.2d 786 (1968).

As I read the majority opinion, the right of this Court to write an authoritative opinion denying the writ is not questioned so long as the final opinion of the Court of Appeals is not modified, but this Court may not deny the writ and alter such a final decision.

My reasoning processes cannot comprehend such esoteric and ethereal enlightenment. If we deny the writ and agree with the Court of Appeals our jurisdictional feet are planted in concrete; but if we disagree, they are made of clay and stand in sand.

This Court has the inherent power to deny certiorari and direct the further disposition of the case on remand. It is a power that should be used sparingly since it deprives counsel of oral argument, a right which we, very properly, liberally indulge.

I do not look with favor upon frittering away our jurisdiction. We have recently spoken to this issue in no uncertain terms. In Barger v. Brock, 535 S.W.2d 337 (Tenn.1976), after recognizing that this Court “is supreme in fact as well as in name”, we said:

It is a controlling principle that inferior courts must abide the orders, decrees and precedents of higher courts. The slightest deviation from this rigid rule would disrupt and destroy the sanctity of the judicial process. There would be no finality or stability in the law and the court system would be chaotic in its operation and unstable and inconsistent in its decisions. Personal and property rights would be insecure and litigation would know no end. 535 S.W.2d at 341.

The conservation of judicial manpower in the face of a crushing certiorari work load demands that this Court indulge in the practice of writing opinions in cases wherein certiorari is denied. A proper regard for the intermediate appellate courts and for the attorneys and litigants involved commands the same conclusion.

It is patently unfair for us to deny a petition and “concur in the results only”, leaving the intermediate courts in a quandary as to the reasons for our action. Moreover, in many of those cases where there has been a remand, we place the trial judge and counsel in a position of having to speculate as to our reasons.

In place of denying the petition and concurring in the results only we should forthrightly state the reasons for our denial. Such a statement need not be elaborate but should be sufficient to apprise all lower courts and counsel of the precise reasons prompting our action.

In many instances we concur in the results only because of our disagreement with only a portion — sometimes a single sentence or paragraph of an opinion otherwise without objection.

The result of this practice is that many outstanding opinions of our intermediate appellate courts are consigned to oblivion and much scholarly research is lost to the profession.

It is this procedure which has produced the rule that our denial of certiorari means only that we have concurred in the results reached by the intermediate appellate courts. See Adams v. State, 547 S.W.2d 553 (Tenn.1977) (opinion released February 28, 1977).

Under a proper certiorari procedure, our denial of the writ should mean that we affirm in all respects, both the reasoning and the results of the intermediate Court of Appeals. But this meaning is valid only under a procedure wherein we have and exercise the right to hand down a binding opinion on certiorari denials.

In our certiorari conference held on February 1, 1976, we took final action on a total of sixty-six (66) petitions for certiora-ri. We denied the writ and concurred in the results only in eleven (11) cases, or 16⅜ percent. In each of these cases, an ad hoc standard of review made this conclusion feasible, but in 11 cases, appellate judges were left to speculate as to our reasons. This situation, in my view, is intolerable. Appellate judges are entitled to know wherein they have erred.

A typical criminal case wherein we confused the Court of Criminal Appeals and the profession by a failure to indicate, in a brief opinion, the reasons for our denial, is Jackson v. State, 539 S.W.2d 337 (Tenn.Cr.App.1976), wherein we denied the writ without assigning our reasons. This led to an erroneous conclusion on the part of the Court of Criminal Appeals and resulted in the reversal of Adams v. State, supra, in which, for the first time, we specified our reasons for denying the writ in Jackson. A simple one page opinion denying the writ in Jackson would have clarified our position to the Court of Criminal Appeals, and, of course, such an opinion would be binding.

Our procedure for processing certiorari petitions is antiquated. Fairness compels the inclusion that much of the problem is of our own making. The conclusion reached in the other opinions in this case further muddles the problem and stands as an obstacle to our correcting an intolerable situation.

I deplore our practice and dissent from the majority opinion.

The memorandum that precipitated this controversy was prepared for the Court by my distinguished predecessor, Mr. Justice Allison B. Humphreys. I cannot bring myself to believe that this former distinguished professor of law, Circuit Judge, Assistant State Attorney General, State Solicitor General, Judge of the Court of Appeals, and Justice on this Court, whose brilliant opinions have enriched the decisional law of our state, was in error on this point of procedural law.

I would preserve the jurisdiction of this Court, reverse the Court of Appeals and remand this action to the trial court with directions to award homestead.

      . T.C.A. § 27-819:

        “Review of Court of Appeals by Supreme Court. — The Supreme Court, or any judge thereof, shall have the right to require, by certiorari, the removal to that court for review of any case that has been finally determined in the Court of Appeals, upon a sworn petition for this purpose filed in the Supreme Court, which petition shall state the substance of the case to be decided, and shall be accompanied by assignments of error and brief in conformity with such rules as the Supreme Court may prescribe; and there shall be no other method of review.”
      T.C.A. § 16-452:

        “Certiorari from Supreme Court. — The Supreme Court or any judge thereof, shall have the right to require by certiorari, the removal to that court for review of any case that has been finally determined in the Court of Criminal Appeals, upon a sworn petition for this purpose addressed and filed with the clerk of the Supreme Court. The petition for certio-rari shall state the substance of the issues in the case to be decided, and shall be accompanied by assignments of error and brief in conformity with such rules as the Supreme Court may prescribe, and there shall be no other method of review. Upon such writ of certiorari being granted, the original transcript and bill of exceptions filed in the Court of Criminal Appeals, the opinion, order and judgment of that court shall be filed in the Supreme Court, and the same shall constitute the entire record to be filed and reviewed by the Supreme Court. No further cost bond shall be required therefor, and the sureties on the appeal bond in connection with the appeal to the Court of Criminal Appeals shall likewise be liable on their surety bond for the costs incurred in connection with the review by the Supreme Court.”

      . McAllester v. McAllester, 217 Tenn. 226, 396 S.W.2d 363 (1965); Cantrell v. Louisville & N.R. Co., 179 Tenn. 180, 163 S.W.2d 824 (1942), and Red Top Cab Co. v. Garside, 155 Tenn. 614, 278 S.W.2d 263 (1927).

      . During the calendar year 1976, a total of 634 petitions for the writ of certiorari were filed in this Court. It would be an utter impossibility for the Court to grant all writs and process them, along with direct appeals, with any semblance of efficiency.

      .§ 27-821 shows on its face that it is not complete. Omitted therefrom is a portion of the fourth alternative which reads as follows: “(4) Remand the case to the trial court for further proceedings at the direction of the Supreme Court with instructions.” This omitted proviso follows alternative (3) and precedes the words “or certify the additional record.” See § 16-452, T.C.A. for the language governing certiorari to the Court of Criminal Appeals. This omission does not, however, remove the option since this Court has the inherent right to proceed under this option.


author: HENRY, Justice.

text:
    William ADAMS et al., Petitioners, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Feb. 28, 1977.

      James H. Cummings, William H. Bryson, Marshall E. Duggin, Woodbury, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Nashville, Guy R. Dotson, Dist. Atty. Gen., Murfreesboro, J. Barrett Melton, Jr., Asst. Atty. Gen., Wood-bury, for respondent.
   OPINION

HENRY, Justice.

This criminal action presents two questions:

1. Whether the holding of this Court in Farris v. State, 535 S.W.2d 608 (Tenn.1976) operates to invalidate the charge given by the trial judge with respect to parole eligibility, and other matters specified in § 40-2707, T.C.A.
2. Whether the holding of this Court in Gray v. State, 538 S.W.2d 391 (Tenn.1976) renders erroneous the action of the trial judge in imposing consecutive sentences.

I.

Each of the four petitioners was convicted on two counts of armed robbery and sentenced to serve not more than twenty (20) years. The statutory punishment for robbery accomplished by use of a deadly weapon is “imprisonment for life or for any period of time not less than ten (10) years.” § 39-3901, T.C.A.

Thus the jury doubled the minimum sentence.

Petitioners stand convicted of the robbery of a female storekeeper in Readyville, in Cannon County. At the same time and place they robbed her male employee by taking money from his wallet.

This was a simple case of armed robbery with no aggravating circumstances, except the mere fact that the use of a deadly weapon is per se an aggravating circumstance. The legislature has expressly so recognized by providing a minimum penalty for simple robbery of five (5) years, and by enhancing (doubling) the minimum penalty when accomplished by the use of a deadly weapon.

Thus the posture of this case is that the punishment has been enhanced by the legislature; the minimum has been enhanced (doubled) by the jury; and, in addition, the trial judge enhanced (doubled) the sentences by decreeing that they run consecutively. The end result is that each defendant must serve a forty (40) year sentence for simple armed robbery, in a case involving essentially a single criminal episode.

II.

Petitioners’ assignment of error, based upon the Farris question, in the Court of Criminal Appeals, charges the trial judge with error in instructing the jury on parole and other considerations required by the last paragraph of § 40-2707, T.C.A., and sections cited therein:

because those laws are unconstitutionally vague and overbroad, and such charge could serve no other purpose than to confuse and bewilder the jury in their attempt to set punishment.

The same error is assigned in this Court.

In Farris:

(a) Three members of this Court held that § 2 of Chapter 163 of the Public Acts of 1973, which appears as the second paragraph in § 40-2707, T.C.A., was unconstitutional because its body was broader than its caption.

(b) Two of these members held the same act to be void because “impermissibly vague and impossible to apply.”

One of these members agreed with holding (a), but disagreed with holding (b). Additionally, he would have held the act unconstitutional as a legislative invasion of the powers of the judiciary in violation of Article II, Sections 1 and 2 of the Constitution of Tennessee.

The remaining two members would have held the act to be free of any constitutional infirmity.

Thus, to the extent that the assignment in this case charges vagueness, Farris demands its rejection, if we restrict the assignment to that single, precise meaning and afford it no reasonable latitude.

The State correctly insists that the charge given by the trial judge predated the release of the Farris opinion. We held, in Farris:

This decision will apply to these cases and to all others wherein convictions have not become final on the date of the release of this opinion. (Emphasis supplied). 535 S.W.2d at 614.

On petition to rehear, we said:

A careful reading of the phraseology used will clearly indicate that we were primarily concerned that this case not precipitate petitions for post-conviction relief. A “final conviction”, as used in the main opinion, simply means those cases wherein jury verdicts have been returned but the usual appellate review, vis a vis post-conviction relief, has been completed.

Farris was decided on February 16, 1976 (main opinion). The instant case was argued in the Court of Criminal Appeals on January 5, 1976, and that court handed down its decision on August 4, 1976. Thus the instant case was in the “pipeline” of appellate review and the conviction had not become final. Farris is applicable.

However, we further held in Farris, that as a condition precedent to its limited retro-activity “appropriate assignments” must have been made.

In the instant case, Judge Russell, joined by Judge Walker, after referring to our requirement that the question be “timely and properly raised”, and with respect to the above quoted assignment, held that “nothing in this assignment properly put the trial judge on notice of the defect found by our Supreme Court.” Judge Russell also cites textbook law and cases supporting the general proposition that assignments must be as specific and certain as the nature of the error complained of will permit.

Judge Daughtrey, in a separate concurring opinion, stated:

I am of the opinion that the rationale employed by Judge Russell in overruling the appellants’ assignment of error based on the Farris violation which occurred at the trial of this case is excessively technical and narrow. I would instead endorse the view expressed by Judge Duncan writing to this issue in Jackson v. State, 539 S.W.2d 337, (cert. denied July 6, 1976) (Tenn.Crim.App.1976).

Judge Daughtrey concurred with “some reluctance” and stated that she would dissent but for the fact that in Jackson, and in an unreported case, Judge Russell reached the same results on the same Farris issue and this Court denied certiorari. Because of this she felt that she “must assume that the Supreme Court is satisfied with Judge Russell’s position on this question.”

This assumption overlooks two significant circumstances and considerations.

First, as pointed out by former Chief Justice Grafton Green, in Bryan v. Aetna Life Ins. Co., 174 Tenn. 602, 130 S.W.2d 85 (1939):

We have repeatedly pointed out that a mere denial by this court of a writ of certiorari to the Court of Appeals does not commit us to all the views expressed in a particular opinion. We are primarily concerned on such application with the result reached. (Emphasis supplied). 174 Tenn. at 611, 130 S.W.2d at 88.

We reaffirm Justice Green’s holding.

Secondly, on petition to rehear in Farris, we held unanimously that

the fact that a trial judge, prior to the release of our opinion, may have charged the jury on parole considerations does not necessarily mean that the error is reversible or that we will follow the Farris procedure. (Emphasis supplied). 535 S.W.2d at 622.

Since Farris this Court, on certio-rari consideration, has consistently considered each case on an ad hoc basis. When, in bur opinion, the Farris charge affected the length of the sentence we have taken corrective action; when we have felt that it had no effect we have rejected the petition for certiorari. We point out that certiorari is not a writ of right, but of discretion. It is to be borne in mind that basically Farris is prospective in application, but as to those cases wherein the conviction has not become final and where appropriate assignments have been made, the Farris rule is applicable.

In Jackson v. State, supra, the defendant was convicted of a “vicious killing of an innocent robbery victim”, according to the majority, and “a brutal murder”, according to the concurring opinion. We agreed, and denied the writ, or phrasing it in accordance with Justice Green’s language, we were primarily concerned with the result reached.

In Jackson, the petitioner asserted the unconstitutionality of § 40-2707, T.C.A., contending that it violated the separation of powers clause of the Constitution of Tennessee. (Art. II, Sections 1 & 2).

The Jackson court overruled this assignment on the basis that it was not sufficient to activate the Farris rule. In so doing, the Court analogized our disposition of the assignment of Farris himself with the Jackson assignment. This analogy is faulty in its basic premise.

Farris assigned as error:

The trial court erred in instructing the jury regarding the doubling of the minimum punishment, said law which authorizes such a change (sic) is unconstitutional. 535 S.W.2d at 622.

As pointed out on petition to rehear in Farris, this assignment was directed solely at the first paragraph of § 40-2707, T.C.A., which was not changed one iota by Farris and remains intact. In other words, it did not raise what has come to be known as a “Farris issue.”

Further reference to Farris will reveal that we did consider and grant relief to a co-defendant in that case, Roosevelt Lewis, whose assigned error on motion for a new trial asserted the unconstitutionality of § 40-2707, T.C.A., on the basis of the charge being (1) confusing to the jury, (2) an invasion of the province of the jury and (3) conferring excessive power upon the jury.

The Lewis argument that the caption was overbroad was first made in a consolidated supplemental brief filed in this Court, wherein an appropriate assignment was made for the first time.

Yet we granted Lewis relief, and but for the gravity of the offense and our determination that the Farris charge did not affect the result of the trial, we would have granted relief in Jackson. Then and now we approve the results reached in Jackson, but not the reasoning.

In Jackson, Judge Duncan, in a concurring opinion, on petition to rehear, stated:

To me, the instant case is similar to the Farris companion case of Roosevelt Lewis v. State, where the Supreme Court recognized Lewis’ complaint, even though he had not raised the “improper caption” complaint in the trial court. In Lewis’ motion for a new trial, he complained of the unconstitutionality of T.C.A. § 40-2707, but as stated, he did not allege the “improper caption” complaint. A similar situation exists in Jackson’s motion for a new trial. Also, like the present case, Lewis first began to insist on this additional ground for the Act’s unconstitutionality when his case came to our Court. Further, Lewis listed this additional ground when his case was before the Supreme Court. Since Lewis had raised the unconstitutional question in the trial court, the Supreme Court did not decline to consider his ground because he had predicated his complaint there on an improper ground.
Thus, I am of the opinion that the defendant’s complaint has been sufficiently raised, ...” 539 S.W.2d at 339.

Judge Duncan’s concurrence in the denial of the petition to rehear, pursuant to the ad hoc language of Farris and on the basis of the commission of a “brutal murder” by the petitioner, was soundly based.

As the matter now stands we confront a conflict among four of our most able appellate judges and the grant of the writ in this case was necessary to reconcile this conflict.

We hold that the Farris rule is applicable to this ease since the conviction had not become final and the assignment of error made in the trial court, the Court of Criminal Appeals and in this Court was sufficient to enable petitioner to invoke the rule. The acceptance of the Lewis assignment in Farris demands this approach. Moreover, we think it to be in the interest of justice.

We recognize that our own rules, reflective of the case law of the state, require specificity in assignments. They also demand equitable and practical interpretation. Here the petition specifically alleged the unconstitutionality of the act setting forth certain specific grounds for its unconstitutionality, but not the precise ground upon which Farris was decided. Most assuredly, in a criminal case, if a defendant merely asserts the unconstitutionality of an act, he would not be repelled because he did not set forth reasons. We are not willing to penalize a criminal defendant for an incomplete and/or inaccurate assignment. Especially would we not do this in a case wherein this very Court has been sharply divided, with at least four different views, all supportable by recognized legal principles, but only one of which was able to command even a bare majority.

Section 40-3409, T.C.A. specifically provides:

No assignment of error or joinder is necessary in criminal cases taken to the Supreme Court, but the court shall render such judgment on the record as the law demands. (Emphasis supplied).

This statute has been on our books for over a century. It was obviously passed for the benefit of criminal defendants, since it was aged when the Court of Criminal Appeals came into existence and, with rare exception, only the defendant had a right of appeal to the Supreme Court.

Following this statute, this Court has declared that it is bound to consider any errors in the record, whether there has been an assignment or not. James v. State, 215 Tenn. 221, 385 S.W.2d 86 (1964).

Thus the mandate of this statute affords an additional reason for our action.

Pursuant to this assignment, and in accordance with the procedure outlined, infra, this case will be remanded.

III.

The second issue, relating to the action of the trial judge in ordering the sentences to run consecutively, is substantially less troublesome. Its resolution does not require a determination as to the sufficiency of the assignment. Gray v. State, 538 S.W.2d 391 (Tenn.1976), provides the answer.

In Gray, this Court, speaking through Mr. Justice Fones, established criteria to be utilized by trial judges in the use of the consecutive sentencing procedure.

We held, inter alia, that “a consecutive sentence should be imposed only after a finding by the trial judge that confinement for such a term is necessary in order to protect the public from further criminal conduct by the defendant.” 538 S.W.2d at 393.

Thereafter we held that this punishment should be reserved for (1) the persistent offender, (2) the professional criminal, (3) the multiple offender, (4) the dangerously mentally retarded and (5) the dangerous offender.

We defined the “persistent offender” as “one who has previously been convicted of two felonies or of one felony and two misdemeanors committed at different times when he was over eighteen (18) years of age.” 538 S.W.2d at 393.

The record in this case shows by affirmative responses given by petitioner Griffin, that he had been convicted in Federal Court, in March 1974, of armed robbery and the same year was convicted for the same offense in the Criminal Court at Franklin. He was, therefore, a “persistent offender” and there can be no legitimate charge that the trial judge was in error in imposing a consecutive sentence upon him. As to the remaining petitioners the record is insufficient to support a meaningful review.

In Gray we said:

A defendant may be classified as a dangerous offender if the crimes for which he is convicted indicate that he has little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high. This does not mean that all defendants convicted of several counts of a dangerous offense, such as armed robbery, should be consecutively sentenced. Even though armed robbery is a dangerous offense, there are increased penalties for that crime. The decision to impose consecutive sentences when crimes inherently dangerous are involved should be based upon the presence of aggravating circumstances and not merely on the fact that two or more dangerous crimes were committed. However, this does not preclude the trial court from imposing consecutive sentencing for the commission of dangerous offenses where no aggravating circumstances are present if evidence indicates that the defendant should be sentenced under one of the other classifications. 538 S.W.2d at 393-94.

We do not deem it necessary to develop further the issues raised by this assignment.

IV.

We reduce the sentences of all petitioners to ten (10) years, and as thus reduced, their convictions are affirmed. These reductions are subject to the approval and consent of the State. If the State does not consent, these cases will be reversed and remanded for a new trial, under the guidelines handed down in Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738 (1956). If the State consents to the reduction of the sentences, the case will be remanded for the sole purpose of enabling the trial judge to consider whether to impose consecutive sentences on one or more of the petitioners, under the criteria set forth in Gray, supra. In order to facilitate orderly and effective appellate review, the trial judge should incorporate in his rulings the reasons prompting him to impose consecutive sentences.

We affirm all convictions, reduce the sentences, conditionally remand on the Farris issue and remand on the Gray issue.

COOPER, C. J., and FONES, BROCK and HARBISON, JJ., concurring.

      . Under a long line of Tennessee cases, culminating in State v. Black, 524 S.W.2d 913 (Tenn.1975), these were multiple robberies and will support multiple convictions. (The author of the instant opinion continues to adhere to his dissent in Black, but bows to the law of the state as established by the majority opinion). Particularly in point are Wilkerson v. State, 211 Tenn. 32, 362 S.W.2d 253 (1962), and Morgan v. State, 220 Tenn. 247, 415 S.W.2d 879 (1967).

      . Proper assignment was also made on motion for a new trial.

      . The trial judge correctly charged the law as of the date of the charge.

      . To the extent of the opinion on petition to rehear.

      . A Farris charge given after the date of the release of the main opinion is reversible error. 535 S.W.2d at 622.


author: BROCK, Justice.

text:
    Judy KANE (Higgason), Appellant, v. Samuel Thomas KANE, Appellee.
    Supreme Court of Tennessee.
    March 7, 1977.
    Charles L. Hendrix, Nashville, for appellant.
    W. B. Hogan, Nashville, for appellee.
   OPINION

BROCK, Justice.

This is a proceeding in the Circuit Court for Davidson County in which appellant seeks to acquire custody of her daughter from her former husband, the appellee.

The parties were divorced in 1964 by decree of the General Sessions Court of Robertson County which also awarded custody of their child to the mother, appellant. Although the parties were residents of Davidson County and their separation occurred in that county, the divorce action was filed in Robertson County. Thereafter, in 1971, application was made to the General Sessions Court of Robertson County for a modification of its decree and the father, appellee, was awarded custody of the child. We conclude from the record that still other proceedings involving the same issues between these parties have been brought before the same court. Now, however, appellant, being dissatisfied with the latest decree of that court, seeks to overturn it by resort to the Circuit Court for Davidson County. The trial judge has repelled her attempt, holding that the parties are bound by the proceedings and decrees of the General Sessions Court of Robertson County which has continuing jurisdiction over the issues asserted by appellant in this action. We are in complete agreement with that conclusion.

A court in which an action for divorce is brought and which renders a decree respecting the care, custody and support of minor children continues to have jurisdiction of such matters until the children reach majority. T.C.A. § 36-828; Morrissey v. Morrissey, 214 Tenn. 112, 377 S.W.2d 944 (1964). Furthermore, this jurisdiction is exclusive. Sutton v. Sutton, 220 Tenn. 410, 417 S.W.2d 786 (1967).

However, appellant seeks to avoid the effect of this rule by asserting that the General Sessions Court of Robertson County never acquired “jurisdiction.” She bases her argument upon T.C.A. § 36-804 which provides:

“Venue of Action. — The bill or petition may be filed ... in the county where the parties reside at the time of their separation, or in which the defendant resides, if a resident of the state; but if a nonresident or a convict, then in the county where the applicant resides.
“Any divorce granted prior to May 4, 1967 will not be deemed void solely on the ground that the parties to the divorce action were residents of a county or counties other than the county in which said divorce decree was entered.”

Since the parties did not reside in Robertson County when their separation occurred and the defendant in the divorce action did not reside in that county, she argues that the first paragraph of the statute, above-quoted, precluded the court in Robertson County from acquiring jurisdiction. Even if she were correct in this insistence, it would appear that the second paragraph of the statute has cured the defect.

But, she is not correct. She confuses venue with jurisdiction. Venue is the personal privilege of a defendant to be sued in particular counties; it may be waived and is waived by a defendant who defends upon the merits without first interposing an objection to improper venue. Jurisdiction is lawful authority of a court to adjudicate a controversy brought before it; jurisdiction of the subject matter is conferred by the constitution and statutes, jurisdiction of the parties is acquired by service of process. See Corby v. Matthews, Tenn., 541 S.W.2d 789 (1976).

Clearly, T.C.A. § 36-804 merely deals with venue of divorce actions; it is so designated in the code, “Venue of Action — ” (underscoring added); and it has been so interpreted many times by this Court, Williams v. Williams, 193 Tenn. 133, 244 S.W.2d 995 (1951); Ivey v. Ivey, 212 Tenn. 650, 371 S.W.2d 448 (1963).

There is nothing in this record to indicate that the defendant in the original divorce suit objected to the bringing of the action in Robertson County; thus, the right of venue was waived. Nor is there any suggestion that the defendant was not served with process, hence no lack of jurisdiction of the person is shown. Finally, there is no question raised of the statutory authority of the General Sessions Court of Robertson County to entertain suits for divorce and to award custody of children of the marriage; therefore, no lack of jurisdiction of the subject matter is shown. Accordingly, the attempt of the appellant to attack the validity of the jurisdiction and decrees of the General Sessions Court of Robertson County has totally failed. This being true, the jurisdiction of that court over the custody of the child of these parties continues to be exclusive, under the circumstances shown in this case.

The decree of the trial court is affirmed. Appellant and surety will pay the costs incident to this appeal.

COOPER, C. J., and FONES and HARBI-SON, JJ., concur.

HENRY, J., not participating.