author: SHRIVER, Presiding Judge.

text:
    Randall MELTON et al., Plaintiffs-Appellants, v. REPUBLIC VANGUARD INSURANCE COMPANY, Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    Aug. 6, 1976.
    Joe P. Binkley, Jr. and George E. Mudter, Jr., Nashville, for plaintiffs-appellants.
    James V. Mondelli and Donald D. Hildebrand, Nashville, for defendant-appellee.
   SHRIVER, Presiding Judge.

OPINION

The Case

This is an appeal from a final decree entered September 15,1975 in the Chancery and Probate Courts of Davidson County, Honorable Shelton Luton, Judge, which decree dismissed the plaintiffs’ cause of action at plaintiffs’ costs and from which judgment the plaintiffs appealed.

The suit was commenced by a complaint filed February 11, 1974 for breach of a contract of insurance issued by the defendant Company as a homeowner’s policy to James R. Barnes, one of the plaintiffs.

The complaint asserts, and it .is not denied, that the defendant Insurance Company issued a homeowner’s type policy to plaintiff Barnes and that said policy was in force and effect at the time in question here.

It is asserted in the complaint that on the 17th day of January, 1971, plaintiff James R. Barnes accidently shot plaintiff Randall Melton as he and several other individuals were trespassing on Mr. Barnes’ property; that in August, 1971, a civil action was instituted by plaintiffs, Randall Melton and his mother and father, against James R. Barnes for the injuries resulting from the accidental shooting; that on January 26, 1972, a judgment was entered in said civil action in favor of the plaintiffs Melton against Barnes for $5,316.53 compensatory and $30,000.00 punitive damages; that defendant, Republic Vanguard Insurance Company, defended James R. Barnes in said civil action under a reservation of rights and, after entry of judgment against Barnes, the Insurance Company refused and continues to refuse to honor its insurance contract and refuses to pay on the judgment obtained by plaintiffs Melton; therefore, Barnes sues the Insurance Company for $25,000.00 which is the face amount of the policy, plus 25% penalty.

Assignments of Error

There are two assignments, as follows:

“1. The Court’s finding that notice was not given to the Insurance Company in the case ‘as soon as practicable’ is contrary to both the law and the evidence.
2. The Court’s finding that the shooting incident was not an accident and thus, not covered by the insurance policy, is contrary to both the law and the evidence.”

This cause was heard by Judge Shelton Luton, sitting as Chancellor, and, following the hearing of said cause, he filed a Memorandum Opinion on August 15, 1975, which sets out in a elear and sueeinet manner the issues in this cause, together with his conclusions of law and the facts upon which he based his judgment.

His Opinion, in pertinent part, is as follows:

“MEMORANDUM
This cause was heard by the Court upon the pleadings, testimony of plaintiff James R. Barnes and witnesses Robert V. Dixon and David Clay, adduced orally before the Court, testimony of witnesses David H. Clay and Robert V. Dixon by depositions taken for discovery and/or evidence purposes, exhibits, briefs filed by counsel for the parties, together with the entire record.
Defendant’s insurance policy, covering among other things, personal liability of the insured for sums which he shall become legally obligated to pay as damages because of bodily injury to which this insurance applies, caused by an occurrence, was in full force and effect on January 17, 1971. Among the exclusions of coverage provided in said policy was ‘bodily injury . . . which is either expected or intended from the standpoint of the insured.’
Said policy further placed upon the insured the duty, in the event of an accident or occurrence, to give written notice thereof containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances of the occurrence reported, names and addresses of the injured and of available witnesses ‘shall be given by or for the insured to this company or any of its authorized agents as soon as practicable.’
The policy further contained the provision that ‘no suit or action shall lie against this company unless, as a condition precedent thereto there has been full compliance with all of the provisions and stipulations of this policy . . .’
Plaintiff undertakes to excuse the failure of the plaintiff to give notice sooner on the ground that he did not know the policy which he had with the defendant company covered a claim such as the one here in question. There are instances in which the Courts have held that the failure to give notice within the prescribed time was excusable. The rule for application of this principle, as understood by this Court, is that the delay or failure in giving notice must be due to circumstances beyond the control of the party charged with giving notice. In the case of Mutual [Munal] Clinic v. Applegate, 38 Tenn.App. 280, [273 S.W.2d 712] a patient of the hospital on June 27, 1952, received no injury in the hospital and escaped on June 30, 1952 from the hospital and later died in the City Jail on that date. On February 27, 1953, the hospital administrator gave written notice to the insuror of this incident. The Court held that the delay in giving notice was excusable because, at the time of the escape there was no evidence of bodily injury and there was no reason for the complainant to believe that a claim for damages would arise.
In the case of Spradlin v. Columbia Insurance Company of New York, 34 Tenn.App. 17, [232 S.W.2d 605] failure to give notice was due to the ignorance of the claimant of the existence of a policy of insurance. The policy had been taken out at the instance of the seller of the automobile and the purchaser did not know that same was in existence. The Court held that lack of knowledge of the existence of the policy was a sufficient excuse for failure to give notice.
From the foregoing authorities, the Court concludes that the time which elapsed between the incident here involved and the giving of notice to the insurance company extended beyond that allowable as being ‘as soon as practicable.’ No evidence was adduced which would tend to show that anything stood in the way of the plaintiff’s reading his policy or having same interpreted for him and notifying the insurance company in accordance therewith. This Court believes that a period of approximately seven months was much more than sufficient to enable the plaintiff to ascertain his rights.
Furthermore, the fact that the plaintiff did not know that this incident was covered by this policy is not sufficient in the eyes of the Court, to excuse him from giving notice. It is the understanding of the Court that the failure of an insured to read his insurance policy can not be availed of as an excuse for not complying with the requirements thereof.
It is, therefore, the conclusion and opinion of the Court that this cause should be dismissed upon the ground that the notice was not given in accordance with the time of the policy.
This August 15, 1975.
/s/ Shelton Luton
JUDGE”

The Chancellor dismissed plaintiffs’ suit on the dual grounds of the failure of insured to give timely notice of claim and lack of coverage due to the intentional character of the wrong committed by the insured.

Strangely, neither the brief of the appellant nor that of the appellee makes any statement as to when notice was given or cites the portion of the record where such information is available. Rule 12 of the Rules of this Court was disregarded in this respect.

Search of the record discloses that the defendant-insurer was first notified on August 11,1971, nearly seven months after the incident of January 17, 1971, and after suit had been filed against insured by the injured party.

Insured admitted that he knew of the existence of his “home owner’s policy” and that it required prompt notice of incidents upon which claim might be made, but he testified that he was unaware that the policy contained the liability coverage upon which this suit is based. Insured admitted, however, that he had read the provision excluding bodily injury or property damage caused intentionally by or at the direction of the insured.

This Court agrees with the Chancellor that the failure of the insured to promptly notify the insurer constitutes a complete defense to this action. The policy clearly requires a complete and prompt report of incidents from which claims might arise, and exonerates the insurer for failure of the insured to comply with all provisions of the policy.

Such provisions were enforced in the case of Phoenix Cotton Oil Company v. Royal Indemnity Company, 140 Tenn. 438, 205 S.W. 128 (1918), wherein the Court held that the giving of notice was a condition precedent to the right of recovery, and the failure to give it prevents liability from attaching. In Phoenix the delay in giving notice was also seven months. See Pennsylvania Insurance Co. v. Horner, 198 Tenn. 445, 281 S.W.2d 44 (1955) (5 months delay); Todd v. National Surety Corp., 226 F.2d 579 (CA 6th 1955) (8 months delay); Sohm v. U.S.F. & G., 352 F.2d 65 (1965) (5½ months delay).

This ease does not fall within the circumstances which excused delayed notice in Spradlin and Munal Clinic, 38 Tenn.App. 280, 273 S.W.2d 712 (1954). The plaintiff had reasonable ground to believe a claim would arise against him and also had knowledge of insurance. He made no attempt to investigate or take any action with reference to insurance until after suit was brought some six months after the accident occurred.

The giving of notice by the plaintiff Barnes was a condition precedent to the right of recovery and the failure to give such notice as soon as practicable prevents any liability from attaching to the defendant Insurance Company.

Assignment No. 1 is overruled.

Since it has been determined that the Chancellor’s decision is supported by the failure to give timely notice, it is unnecessary to consider the other ground of his decision. The second assignment of error is therefore pretermitted.

The decree of the Chancellor is affirmed. The costs of this appeal are taxed against the appellants.

AFFIRMED.

TODD and DROWOTA, JJ., concur.


source: Caselaw Access Project

author: PARROTT, Presiding Judge (E.S.).

license: Public Domain

text:
    Charles S. PRICE, Appellee, v. McNABB & WADSWORTH TRUCKING COMPANY, Appellant.
    Court of Appeals of Tennessee, Eastern Section.
    Nov. 23, 1976.
    Certiorari Denied by Supreme Court March 14, 1977.

      James E. Brading, Johnson City, for appellant.
    Walter 0. Waddey, Kingsport, for appel-lee.
   OPINION

PARROTT, Presiding Judge (E.S.).

This suit seeks pro rata payment of a judgment under the Uniform Contribution Among Tort-Feasors Act, T.C.A. 23-3101, et seq.

In an earlier circuit court action growing out of an automobile accident, judgment in the amount of $26,800.35 was entered against George T. Gilmer and Charlie S. Price. In this action Charlie S. Price avers he has satisfied that judgment and seeks to recover at least one-half of the amount from George T. Gilmer, Johnny Gilmer, and MeNabb & Wadsworth Trucking Company, Inc.

The circuit judge below sustained plaintiff’s motion for directed verdict against all defendants. The judgment entered provides that plaintiff, Charlie S. Price, have and recover from defendants George T. Gil-mer, Johnny Gilmer, and MeNabb & Wads-worth Trucking Company the sum of $12,-773.17, being one-half of the amount paid by plaintiff to satisfy the earlier judgments plus one-half of the court costs and the costs of this cause. MeNabb & Wadsworth Trucking Company was awarded a judgment over of the same amount against Johnny Gilmer and George T. Gilmer.

MeNabb & Wadsworth Trucking Company has appealed and assigned as error the circuit judge’s failure to sustain its motion for directed verdict.

The proof shows that MeNabb & Wads-worth Trucking Company had a contract with Vulcan Materials Company where it was using several of its own trucks to haul gravel from the Vulcan quarry in Old Kingsport to a site on Interstate 81 which was under construction. In addition to its own trucks, MeNabb & Wadsworth, by separate written agreement, leased a truck from Johnny Gilmer to help haul the gravel. The Gilmer truck, while being operated by his brother, George T. Gilmer, was involved in an accident which resulted in the above mentioned judgment against plaintiff, Charlie S. Price and defendant, George T. Gilmer.

The contract between Johnny Gilmer and MeNabb & Wadsworth provided Johnny Gilmer would receive five cents per ton for all materials hauled. The agreement provides that the truck at all times will be the exclusive property of Gilmer and will be used by MeNabb & Wadsworth only for the purpose of fulfilling its contract with Vulcan Materials. The contract further provides: “. . . the operators shall be and remain the employees of the Lessor by whom they are to be paid, and Lessor shall carry workmen’s compensation insurance and withhold from their wages for Social Security, etc., as required by law.”

The normal routine was that the trucks go to the Vulcan quarry to be loaded and receive instructions as to where the gravel was to be delivered. The MeNabb & Wads-worth drivers were instructed to take a particular route but no such instructions were given to the Gilmer truck driver. However, there is no proof that Gilmer’s truck used a different route because the route assigned was usually the shortest distance that was permissible under the city and state regulations.

Gilmer was permitted to use the garage facilities of MeNabb & Wadsworth to fix flats and to do maintenance and repairs on the truck. However, all of the maintenance and repairs, along with operation expenses such as license, gas and oil as well as the payment of the driver was the sole responsibility of Johnny Gilmer. Johnny Gilmer was required to carry his own workmen’s compensation, deduct Social Security and income tax from the driver’s pay and carry public liability insurance. MeNabb & Wadsworth had no say so over who drove the Gilmer truck; employment of the driver was solely within the discretion of Johnny Gilmer.

From this evidence we think it was undisputed that McNabb & Wadsworth did not have sufficient control of the Gilmer truck so as to make the Gilmer driver a loaned servant. McNabb & Wadsworth’s control was limited as to when and where the trucks would load and unload.

We are of the opinion the trial judge erred in finding Gilmer was in fact a “loaned servant” and thus erred in directing a verdict in favor of the plaintiff and against McNabb & Wadsworth.

Tennessee courts have long recognized the doctrine of loaned servant and in practically all of the decisions the courts have relied strongly on the element of control in determining when a servant is loaned. In the early tort case of Powell v. Virginia Construction Co., 88 Tenn. 692, 13 S.W. 691 (1890), the Supreme Court said: “The fact that one is the general servant of one employer will not, as a matter of law, prevent him from becoming the particular servant of another.” In the Powell case the court applied the test of whose work was being done and who had the right to control.

In later cases, particularly Sanford v. Keef, 140 Tenn. 368, 204 S.W. 1154 (1918), and Chamberlain v. Lee, 148 Tenn. 637, 257 S.W. 415 (1923), the Court seemed to eliminate the question of whose work was being done and apply only the test of who had the right of control. In the Chamberlain case, Chief Justice Green said:

In order to escape responsibility for the negligence of his servant on the theory that the servant has been loaned, the original master must resign full control of the servant for the time being. It is not sufficient that the servant is partially under control of a third person.

This Court, in Hot Blast Coal Co. v. Williax, 10 Tenn.App. 226 (1929), which is very similar to the present case on the facts, affirmed a jury verdict in favor of plaintiff using only the control test. At page 233, it is said:

The controlling facts in these cases, and in all others which support the rule, is that the servant must be in the exclusive control of the one to whom he is loaned, and if so, such servant becomes pro hac vice the servant of him to whom the exclusive control so passes, and not otherwise.

In the still later workmen’s compensation case of Owen v. St. Louis Spring Co., 175 Tenn. 543, 136 S.W.2d 498 (1940), the Supreme Court seemed to ignore the right of control and decide the case on the basis of whose work was being done.

In Gaston v. Sharpe, 179 Tenn. 609, 168 S.W.2d 784 (1943), a tort case, Chief Justice Green, speaking for the Court, indicated the Court was returning to the test set out in the Powell case, i.e., whose work was being done and who had the right of control:

Neither the test stated in Chamberlain v. Lee nor that stated in Owen v. St. Louis Spring Co., has proven entirely adequate. Instead of being tests they are rather to be considered as factors in reaching a conclusion as to where the responsibility lies for the servant’s act. This is true because a servant at a particular time may remain under the control of his general employer for some purposes and yet be under the control of a special employer for others. Likewise it sometimes happens that a particular work in which the servant is engaged may be properly considered as the work or business of both the general employer and the special employer.
The question is difficult. It is considered at some length in Restatement of Agency, § 227. We take the following from Restatement as a satisfactory rule: “Since the question of liability is always raised because of some specific act done, the important question is not whether or not he remains the servant of the general employer as to matters generally, but whether or not as to the act in question, he is acting in the business of and under the direction of one or the other. It is not conclusive that in practice he would be likely to obey the directions of the general employer in case of conflict of orders. The question is as to whether it is understood between him and his employers that he is to remain in the allegiance of the first as to a specific act, or is to be employed in the business of and subject to the direction of the temporary employer as to the details of such act. This is a quistion of fact in each case.”

The Court’s quote from Sec. 227 of Restatement of Agency indicates that the test or standard to be used in determining when an employee is a loaned servant will be based on who has control and whose work is being done with a greater weight being placed on the element of control.

The most recent case appears to be Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858, a workmen’s compensation case decided April 6, 1976. In that case the Court said:

We recognize, of course, that there is no fixed and rigid formula by which these matters are to be determined and that each case must be decided on the basis of its own peculiar facts and circumstances; however, running through all of the cases is the notion that the right of control is the vital test, the controlling consideration or the decisive fact, and the question is not whether the right was exercised but whether it existed. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323 (1950).

In 28 Tenn.L.Rev. 450 is an excellent comment and discussion of many Tennessee cases involving the doctrine of loaned servant. The author notes and discusses that Tennessee courts have applied various tests or standards but says the rule set forth in Gaston v. Sharpe, supra, is the realistic one which should be followed.

For statements of the general law on the subject, see 57 C.J.S. Master and Servant § 566; 60A C.J.S. Motor Vehicles § 451; 35 Am.Jur., Master and Servant, Sec. 541; and 17 A.L.R.2d 1388. The A.L.R. annotation and collection of cases deal mainly with leased or rented machines as we have in this case.

Under the above authorities we find the only determination to be made is that Gil-mer was not a loaned servant to McNabb & Wadsworth at the time the accident in question occurred, but was an employee of his brother, Johnny Gilmer.

It results appellant’s assignment of error is sustained, the judgment of the trial judge in directing a verdict in favor of Charlie S. Price and against McNabb & Wadsworth is reversed, and the motion for directed verdict of McNabb & Wadsworth Trucking Company, Inc. is sustained. All other aspects of the judgment are affirmed.

Let all costs be taxed to the appellee, Charlie S. Price.

SANDERS and GODDARD, JJ., concur.


author: DWYER, Judge.

text:
    Edward Earl ARRINGTON and Charles Odysseus Barrett, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 28, 1976.
    Certiorari Denied AS TO ARRINGTON by Supreme Court March 28, 1977.

      Bruce E. Kelley, Jr., Asst. Public Defender, Dan H. Bell, Memphis, for appellants.
    R. A. Ashley, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, James W. Harrison and David E. Bales, Asst. Dist. Attys. Gen., Memphis, for appel-lee.
   OPINION

DWYER, Judge.

The appellants, Arrington and Barrett, appeal from their convictions for the offense of robbery with a deadly weapon charged in three separate indictments which were consolidated for trial. The jury found both appellants guilty in all three cases and assessed punishment at confinement for twelve and one-half years in the State Penitentiary for each offense. The trial court ordered the sentences to be served concurrently.

There are five assignments of error which are outlined: (1) the evidence preponderates against the verdict of the court and in favor of the appellants; (2) the court erred in charging the jury as to Tennessee Code Sections, relating to parole eligibility and good and honor time credits; (3) the court erred in overruling the Motion to Suppress Evidence obtained as a result of an illegal arrest and search, filed on behalf of the codefendant, Charles Barrett, Jr., which motion the appellant, Edward Earl Arrington, joined in and noted his exceptions to the court’s ruling; (4) the court erred in overruling appellant Arrington’s Motion for Severance, based on his desire to accept the guilty plea recommendation of the State; and (5) the court erred in allowing, over appellant Arrington’s objection, the testimony of Captain J. H. Dowling, a State’s witness who was not listed on the indictment. The appellant Barrett adopts Arrington’s first three assignments of error which are consistent with his motion for a new trial.

We will, in view of the first assignment of error, summarize the evidence as found from our review of this record.

The robberies occurred in the early morning hours of November 28, 1974, at the intersection of Thomas and Arrington Streets located in the City of Memphis. The three victims, Walter Wilson and Marjorie and Curtis Jackson, had been out socializing earlier in the evening. When Walter Wilson drove up to Marjorie’s house to let her out, a black male dressed in a blue Levi jacket came from across the street, cursed Wilson, reached through the open ear window and struck him two or three times. A second male black placed and object that looked like a rifle or a pistol into the back seat of Wilson’s car and ordered Curtis and Marjorie to get out. This black struck Curtis in the head which caused him to black out. Marjorie, as she was alighting, was struck on the back with something she described as a metal object. She testified that one of the assailants was wearing a blue Levi jacket and one an orange and green coat. The robber wearing the orange and green jacket made Mr. Wilson put his hands on the car and took his money after striking Wilson on the side of the head and then striking him in the eye. The assailants took from Wilson his billfold which contained $91.30, his social security card, driver’s license and other papers. They took from Curtis Jackson his billfold, some change, keys and a cigarette lighter. They took from Marjorie Jackson some of her papers and ten dollars in cash. A third black male who participated in these robberies was wearing a blue windbreaker jacket.

Curtis had his landlady make a prompt complaint to the police when he fled the scene and entered his home only half a block away. A call reporting the robberies while they were in progress had previously been made to the police by an unidentified observer.

The arresting officers were within a block and a half of the scene when the report of the robberies was broadcast and they immediately headed their squad car to that location. A few seconds later they noticed a car coming from that vicinity with the dome light on and a male black in the rear taking off his coat. There were two other black males in the front seat. When the police officers blocked the progress of this car, the male black in the back appeared to be stuffing something under the seat. As one of the officers approached the car, he noticed a tire iron on the back seat. When the men were ordered from the car, a second broadcast informed the officers that the assailants in the robberies were black and armed with a pistol or a knife or a tire tool.

A search of the car uncovered the billfolds of Wilson and Curtis Jackson, one of the wallets was under the rear seat, the other one was wrapped up in a green and orange coat found under the front seat, a blue windbreaker was found on the front seat. The driver of the car, Barrett, had on a blue-jean type jacket. Arrington was in the back seat and was the one taking off the orange and green coat.

The three victims were unable to identify the three assailants at a police lineup.

The appellant Barrett testifying in his own behalf denied participating in the robberies and stated that the dome light in his car did not work at that time. The appellant Arrington did not testify. The third member, Charles Venson’s appeal is not before the court.

We think that, while the victims could not identify the appellants at the lineup, the evidence as narrated is sufficient to sustain these convictions. The appellants were arrested within minutes of the robberies a short distance from the scene. The wallets, the tire tool, and the described garments found in the car are enough circumstantial evidence to support the verdicts. The appellants have the burden here to show that the evidence preponderates against their guilt and in favor of their innocence. Osborne v. State, Tenn.Cr.App., 512 S.W.2d 612, 616 (1974). The first assignment of error is overruled.

The Farris v. State, Tenn., 535 S.W.2d 608 (1976) rationale is that “every tub must stand on its own bottom”. We think in view of the violence involved that the charge on the parole statute was harmless error. The second assignment of error is overruled.

We think the facts summarized in our review are adequate to support finding probable cause for stopping the appellants and a reasonable belief in the minds of the officers that they were involved in the robberies and were fleeing the scene; as stated in Jones v. State, 161 Tenn. 870, 373, 33 S.W.2d 59, 60 (1930):

“The substance of these provisions is that an officer may lawfully proceed to arrest without a warrant any person when the officer has, with reasonable cause, been led to belief that the person has committed, is committing, or is about to commit a felony. It is essential to the protection of society that a wide discretion be vested in the officers chosen to enforce our laws against felonies. It is impossible to define ‘reasonable cause’ in terms to fit all cases arising. Each case must stand on its own facts. A narrow construction would open the way for the escape of desperate criminals and the defeat of justice. One too liberal would lead to the harassment of the innocent. But the officer may not be required to wait for assurance, for evjdence which would convict; when circumstances fairly point to a felony it is his duty to act, and act promptly.”

The arrests being legal, the contemporaneous search was proper. We find the evidence supports the trial court’s overruling the motion to suppress. This assignment is overruled.

Appellant Arrington’s motion to sever based on his desire to accept the State’s offer and plead guilty, absent any evidence showing that he was prejudiced by the court overruling his motion, is without merit. The matter of severance is within the sound discretion of the trial court. Hoskins v. State, Tenn.Cr.App., 489 S.W.2d 544 (1972). We find no abuse of that discretion. This assignment is overruled.

The police dispatcher, who was custodian of the police broadcast tapes and records, was called as a witness for the State, to relate the different broadcasts communicated concerning these holdups and the time sequences thereof. While it was error to allow his testimony with his name not on the indictments, T.C.A. 40-2407, has been held to be directory. Aldridge v. State, 4 Tenn.Cr.App. 254, 470 S.W.2d 42 (1971). With the appellants being aware of the broadcasts from the pretrial hearing on the motion to suppress and the testimony of the arresting officer, we find no prejudice here. The assignment is overruled.

The assignments of error having been considered and found without merit, the judgment of the trial court is affirmed.

WALKER, P. J., and TATUM, J., concur.


author: TATUM, Judge.

text:
    Buel David WILSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 6, 1976.
    Certiorari Denied by Supreme Court Feb. 14, 1977.
    Erby L. Jenkins and Ray H. Jenkins, Knoxville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Herbert S. Moncier and Ralph E. Harwell, Asst. Attys. Gen., Knoxville, for appellee.
   TATUM, Judge.

OPINION

Appellant was convicted of first degree murder and sentenced to death by electrocution. We must reverse.

The deceased, Larry Jackson, and a companion left a nightclub in Knoxville known as “Uncle Sam’s” at about 3:30 o’clock A.M., on May 9, 1975. They were students at the University of Tennessee and worked at Uncle Sam’s as bartenders. They were “high”. The deceased’s blood alcohol content was .14%. They encountered a Mr. Johnson accompanied by a young lady and the deceased and Mr. Johnson commenced “horsing around”. The deceased accidentally bumped into the young lady, knocking her down. The deceased and his companion helped her up and deceased apologized to her. Johnson and deceased continued to “horse around” until the play was beginning to develop into a fight.

Appellant and a companion entered the parking lot from another club while Jackson and Johnson were “acting out karate”. Appellant sat down in the front seat of his car on the driver’s side. In the meantime, deceased and Johnson, still “acting out karate”, bumped into appellant’s automobile. Appellant then got out of his car with a pistol and held it in both hands aiming it at about eye level. He made the statement, “I’ll teach you to bump into my car”, and shot the deceased in the chest, killing him. Appellant and deceased were not acquainted with each other.

There was conflict in the testimony but the jury accredited the State’s proof that deceased did not move toward appellant and said nothing to him. Deceased was about seven or eight feet from appellant when he was shot.

Appellant testified that he had sat down in the front seat of his car, but his legs were still on the outside and that Jackson and Johnson were against the car door, preventing him from getting his legs in the car. Jackson and Johnson, according to appellant, then moved to the rear of his car. Appellant said that he had asked them to move away from his car and the deceased made an obscene remark in reply. He had a money box in his car and got his pistol from the box because he was afraid. He said that the deceased stepped toward him from the rear of his car. Appellant had pushed the door open and got out of his car. He said that deceased made a karate movement and yelled and then he shot the deceased. Appellant then fled to Gatlinburg.

In an extra-judicial statement given by appellant, he estimated that he had the pistol in his hand for a total of thirty seconds.

We are first confronted with the question as to whether the evidence supports a conviction of murder in the first degree. In State v. Buffington, 532 S.W.2d 556 (Tenn.1976), the Supreme Court reviews the rules that we must follow:

“The premeditation-deliberation element of first degree murder requires that the act be performed with a cool purpose. Drye v. State, 181 Tenn. 637, 184 S.W.2d 10 (1944); Winton v. State, 151 Tenn. 177, 268 S.W. 633 (1925); Turner v. State, 119 Tenn. 663, 108 S.W. 1139 (1908); Poole v. State, 61 Tenn. 288 (1872); Dale v. State, 18 Tenn. 551 (1837). In order to constitute murder in the first degree, the cool purpose must be formed and the deliberate intention conceived in the mind of the accused, in the absence of passion, to take the life of the person slain. Winton v. State, supra. If the purpose to kill is first formed during the heat of passion, the accused, to be guilty of first degree murder, must have committed the act after the passion has subsided. ‘Passion’ as here used means any of the human emotions known as anger, rage, sudden resentment or terror which renders the mind incapable of cool reflection. Drye v. State, supra.
‘The mental state of the assailant . . rather than the length of time . is the material point. . . . The mental process . . . may have been instantaneous, and the question of vital importance is — was the mind, at that moment, so far free from the influence of excitement, or passion, as to be capable of reflecting and acting with a sufficient degree of coolness and deliberation of purpose; and was the death of the person assaulted, the object sought to be accomplished — the end determined upon.’ Clarke v. State, 218 Tenn. 259, 268, 402 S.W.2d 863 (1966).
Once the fact of killing has been established, the law presumes it to be murder in the second degree. Witt v. State, 46 Tenn. 5 (1868). And, the burden is upon the state to prove premeditation-deliberation which raises the degree of the crime to first degree murder. Bailey v. State, 479 S.W.2d 829 (Tenn.Cr.App.1972). If the killing is accomplished by poisoning or by lying in wait, premeditation is obvious. But, in all other cases a conviction of first degree murder must be supported by evidence of some other kind of willful, deliberate, malicious, and premeditated killing. Drye v. State, supra. The nature of the fact to be proven, i. e., the mental state of the accused, is such that ordinarily only circumstantial evidence is available.”

The question presented here is a close one but we are constrained to hold that the evidence supports the finding of premeditation and does not preponderate against the jury verdict. The only provocation or cause for passion is that the deceased bumped against appellant’s automobile. The deceased was unarmed. Appellant was already in his automobile and could have closed the door and left the scene with no difficulty. Instead, he procured his pistol, got out of his automobile and took deliberate and careful aim at the deceased, telling deceased that he would teach him to bump against his automobile.

In reviewing the evidence, we must take the verdict as having established the credibility of the State’s witnesses and the conviction will not be disturbed unless the evidence clearly preponderates against it. State v. Ballington, supra. The evidence does not preponderate against the verdict of the jury finding the appellant guilty of murder in the first degree and we must overrule the first assignment of error.

Appellant complains of the Trial Court’s admitting evidence of other violent and unlawful acts allegedly committed by him.

A detective testified that he had previously seen the pistol used in this slaying and identified it as being appellant’s pistol. The detective testified further that this pistol was previously seen while he was investigating another shooting in which appellant shot another individual with a shotgun through the windshield of an automobile. The evidence of the previous shooting was admitted by the Trial Court on the theory that it identified the appellant as being the assailant in the case sub judice.

Before trial, appellant gave a lengthy statement to the State’s attorneys in the presence of his own attorney, all of whom examined appellant at length and appellant admitted shooting the deceased and described his version of the shooting in elaborate detail. His version was that he shot the deceased in self-defense. We think that under these circumstances, it was error for the Trial Judge to admit the evidence of the other shooting on the issue of identity. Obviously, in view of appellant’s admission, there was no issue of identity.

In Jones v. State, 523 S.W.2d 942 (Tenn.Cr.App.1975), this Court reiterated the familiar rule that evidence of independent crimes are generally admissible to establish the identity of the accused as being the person who committed the offense under investigation. The Court cited 29 Am. Jur.2d Evidence § 322 which is in part as follows:

“Generally speaking, it is only where the identity of the accused is not definitely connected with the offense on trial that other offenses may be introduced to connect and identify him with the case on trial. If the identity of the accused is established by other evidence and is therefore no longer an issue, it is improper to admit evidence of other crimes on the theory of proving identity.”

The appellant testified on his own behalf in which he was asked by the District Attorney General about the previous shotgun shooting. This was done to effect his credibility as a witness under the rule discussed in Collard v. State, 526 S.W.2d 112 (Tenn.1975). Appellant replied that he shot at this individual after the person had shot at him five times with a .38 caliber pistol. On cross-examination, he was asked these questions and gave these answers before the jury concerning other charges and incidents:

“Q. All right. Now, you say that, say that you wouldn’t hit a twelve year old child? You wouldn’t
A. No, I would not.
Q. . you’re a peace loving man?
A. That’s exactly right.
Q. You do remember August of this year?
A. Yes, I do.
Q. 1975?
A. Yes, I do.
Q. And you say you’ve never been arrested or charged with assaulting anybody?
MR. RAY JENKINS: He didn’t say that.
A. I didn’t say that. I said I .
GEN. MONCIER: .He certainly did say that.
GEN. HARWELL: Well, Your Honor. I’ve got notes and I think the Court has got notes that he said he had never been charged with assaulting anybody in his life.
THE COURT: You may ask him.
Q. So, never been charged with anything like that?
A. I’ve been charged, but
Q. Been charged?
A. Yes.
MR. RAY JENKINS: And they can only prove convictions, Your Honor.
GEN. HARWELL: I’m not trying to prove the charge. I’m trying to impeach this witness if at all possible. He’s said some things that I think that I’m entitled to ask him about.
THE COURT: Very well. I’ve overruled the objection. You may ask him.
GEN. HARWELL: Thank you, Your Honor.
Q. And the reason for that charge was the fact that, that you did assault and beat with a pistol and with your boots Giannina Gabillini, who is your girl friend?
A. No, sir, that’s not true.
Q. That’s not true?
A. No, sir.
Q. And she came down here to the court house and reported that and had blood on her face — she just made that up?
A. She’s in the witness room, why don’t you ask her?
Q. All right. She come here willing to testify here today?
A. Yes, she is.
Q. And, I believe she is represented by these same lawyers here that you are represented by?
A. Yes.
Q. You and her have made up and are now friends?
A. Me and her has always been friends.
Q. As a matter of. fact you made up to the extent that when it came up for trial in Sessions Court on her charge that you had been in jail on that she came in and said she didn’t want to prosecute, is that not true?
A. That’s true.
Q. All right.
MR. ERBY JENKINS: Your Honor, this is, this is going around .
MR. RAY JENKINS: I object, too.
THE COURT: All right. I sustain the objection as to the last question, gentlemen. The outcome of the case has no materiality in it.”
* * * * * *
“Q. Now, in fact, Mr. Wilson, when you were arrested back in August of this year and Mr. Pete Rader came up there to arrest you, you pulled a gun on him, did you not?
A. That’s untrue.
Q. That just didn’t happen?
A. That’s not true.
Q. That didn’t happen?
A. No, sir, it did not happen.
Q. All right, now, then, you say the reason for you self-defense and the reason for, for your feelings scared of people — first of all, were you scared of your girl friend, Gabellini?
A. Do you want me to tell you about that incident?
Q. Well, first of all answer my question. Were you seared of her?
MR. RAY JENKINS: About the lawsuit about his quarrel with his girl friend and it is objected to, Your Honor.
GEN. HARWELL: We’ve had a lot of testimony why this man has to be scared of everybody, Your Honor, and I am entitled to ask him — was he scared of his girl friend?
A. Do you mean, could I whip her? No, I don’t think I could.
THE COURT: Just a moment. Now, gentlemen, this witness has previously testified that he did not assault his girl friend, so, I sustain the objection.”
* * * sjC * *
“Q. All right. Now, let’s talk about, let’s talk about this night. You say you were sober, you were not drunk?
A. That’s exactly right.
Q. And you were not on any drugs?
A. No, sir.
Q. You were not on any medication of any kind?
A. No, sir, I don’t take drugs.
Q. You don’t take drugs? Well, now, do you remember an incident back in February of 1975? Were you arrested by Mr. Daling over on UT campus?
MR. RAY JENKINS: I object to that.
GEN. HARWELL: Well, the . .
MR. RAY JENKINS: Your Honor, arrested, not tried, not convicted .
THE COURT: All right. I sustain the objection.
GEN. HARWELL: All right.
Q. You don’t take drugs?
A. That’s exactly right.
Q. And that includes not taking cocaine, not taking codeine, not taking any of the controlled substances under the Tennessee law, is that right?
A. I just said I didn’t take drugs, general drugs.
Q. All right. Did you, on the, February the 6th, 1975, have in your Cadillac automobile over on the, over on Kingston Pike near UT a whole drug store full of drugs?
MR. RAY JENKINS: Object, Your Hon- or.
A. Hell, no! I . .
THE COURT: Sustain the objection.
Q. Well, did you have these specific items on you on February the 6th?
MR. ERBY JENKINS: Your Honor
GEN. HARWELL: On the basis of the ruling, Your Honor — perhaps I better approach the bench and ask .
(Whereupon, a bench conference was held off the record in the presence of the jury but out of the hearing of the jury.)
THE COURT: I sustain the objection, gentlemen, as to the question pertaining to alleged drugs in this case. Ladies and gentlemen of the jury you will disregard the question. The defendant is not being tried on anything except the case on trial.”

Evidence of other crimes is not admissible merely to show propensity or disposition to commit the crime under investigation. Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963); Harris v. State, 189 Tenn. 635, 227 S.W.2d 8 (1950); Dix v. State, 4 Tenn.Cr.App. 412, 472 S.W.2d 243 (1971). As above stated, the evidence of the previous shooting incident was not admissible on the issue of identification because there was no genuine issue of identification.

We now come to the question as to whether the above quoted could be admitted to discredit the testimony of appellant. It is clear that a testifying defendant can be asked on cross-examination whether he has been convicted of an offense of the type which would impeach his testimony, but there were no such previous convictions.

In State v. Morgan, 541 S.W.2d 385 (Tenn.1976), the Supreme Court dealt with many of the questions now before us. The Court adopted Rule 608(b) and Rule 609(a) and (b) of the Federal Rules of Evidence, which are as follows:

Rule 608.
Evidence Of Character And Conduct Of Witness
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.
Rule 609.
Impeachment By Evidence Of Conviction Of Crime
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

We construe State v. Morgan, supra, with respect to the issue of credibility of a testifying criminal defendant as holding:

(1) Inquiry may be made on cross-examination as to specific acts of the defendant which would impeach his testimony for the sole purpose of discrediting his testimony — not for the purpose of prejudicing the jury.
(2) The details of the prior acts shall not be related to the jury.
(3) When a testifying defendant denies the bad act, the issue is foreclosed.
(4) He cannot be questioned as to mere indictments, charges and accusations of some particular offense.
(5)Where a witness is sought to be cross-examined as to specific instances of conduct as contemplated by Rule 608(b), the court shall conduct a jury-out hearing for the purpose of determining that the probative value of such evidence outweighs its prejudicial effect and for the purpose of determining whether or not such evidence is admissible.

The facts relating to the prior shotgun shooting should not have been reviewed before the jury. The appellant’s statement was that this was in self-defense, which should have concluded the inquiry. An act of shooting in self-defense will not affect the credibility of a witness. This could serve only to prejudice the jury against appellant, since he was on trial for a shooting. State v. Morgan, supra; Fee v. State, 497 S.W.2d 748 (Tenn.Cr.App.1973).

The Trial Judge erred in overruling defense objections to questions as to whether appellant had been “arrested or charged with assaulting anybody”. Appellant denied committing this act but admitted the charge. We think that all of the questions asked concerning this “charge” and the detailed facts concerning it (assaulting and beating his girl friend with a pistol) were incompetent and prejudicial to the appellant even though he denied the act. State v. Morgan, supra; Fee v. State, supra.

On the alleged incident in February, 1975, concerning drugs, it was necessary for the Court to sustain three objections before the Attorney General would discontinue the pursuit of this line of questioning.

The questions above quoted and others of like import convey the implication that appellant was guilty of attempted homicide with a shotgun, pistol-whipping his girl friend, dealing in or using drugs, and drawing a pistol on a police officer. These questions exceeded the bounds of advocacy and propriety. Burlison v. State, 501 S.W.2d 801 (Tenn.1973). The questions themselves were framed so as to impart to the jury prejudicial and incompetent information, the correctness of which the average juror would expect to be within the knowledge of the District Attorney General. See, ABA Standards, The Prosecution Function § 5.6(b) (1968).

We must sustain Assignment II.

Appellant has also questioned the constitutionality of the Tennessee Death Penalty Statute. In view of our disposition of this case, it is not necessary to consider this question.

We have considered all other questions raised in appellant’s brief and find them without merit and moot.

On retrial of this case, the Trial Court will conduct a jury-out hearing to determine whether evidence of prior specific acts of bad conduct of appellant is admissible, if such evidence is offered.

The judgment of the Criminal Court of Knox County is reversed and this case is remanded for a new trial.

WALKER, P. J., and O’BRIEN, J., concur.


text:
    Horace JONES, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 21, 1976.
    Certiorari Denied by Supreme Court Jan. 17, 1977.

      Edward G. Thompson, Memphis, for appellant.
    R. A. Ashley, Jr., Robert A. Grunow, Asst. Atty. Gen., Nashville, Richard S. McNeese, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

TATUM, Judge.

Appellant appeals from a conviction in the Criminal Court of Shelby County of grand larceny. His punishment was fixed at from 3 to 6 years in the State Penitentiary. We affirm but modify.

The appellant’s first assignment is that the evidence preponderates against appellant’s guilt and in favor of his innocence. The accredited evidence was that Robert Lewis Brown left his apartment in Memphis, Tennessee at about 8:00 P.M., or 8:30 P.M., on the evening of January 13, 1975, going to work. At about 9:00 o’clock that night, he was informed that his apartment had been burglarized and upon returning home, he discovered that it had been broken into through a back bedroom window. Several items of personal property, including a television set, had been stolen. The total value of the stolen property exceeded $2,000.00.

The accredited evidence further establishes that a Mr. Tyrone Taylor, neighbor and friend of Brown, was sitting in his driveway in an automobile when he noticed that Brown’s front door was open and that two individuals were placing a television set in the trunk of a car. The car was driven off by these two persons and Mr. Taylor followed it in his car. Mr. Taylor observed a police car and was able to communicate to the policemen the foregoing facts. These policemen communicated this information to a second police car and the second police car followed the car containing the television set in the trunk until it stopped at the rear of an apartment complex, when appellant left the car from the driver’s seat. The other individual had previously run from the car. After he was apprehended, and without being questioned, appellant told the arresting officer, “You cannot put burglary on me, it won’t stick. The only thing you can put on me is receiving stolen property”. Appellant later gave a signed statement to police in which appellant stated that he was driving past Mr. Brown’s house when a friend of his by the name of Charles Wilson, flagged him down and requested a ride. He said that Wilson asked him to wait a minute, then Wilson went inside the house and got the TV set, record player and speakers, which were placed in the trunk of appellant’s vehicle. He said that when the police stopped his automobile, Charles Wilson fled.

Appellant did not testify. His former girlfriend testified that about 9:10 P.M. on the date of the crime, appellant left her home with one Ricky Vaulx. Ricky Vaulx testified that he committed the burglary but that appellant was not a participant. He testified that he and one Charles Wilson broke into Brown’s house and another house, using appellant’s automobile. The witness, Vaulx, had previously pleaded guilty to this crime. He said that Charles Wilson fled.

Appellant stands before this court with a presumption of guilt. We will not disturb a guilty verdict by the jury, approved by the Trial Judge, unless it clearly appears that the evidence preponderates against the verdict of guilty and in favor of appellant’s innocence. Osborne v. State, 512 S.W.2d 612 (Tenn.Cr.App.1974); Sloan v. State, 491 S.W.2d 858 (Tenn.Cr.App.1972); Shelton v. State, 479 S.W.2d 817 (Tenn.Cr.App.1972). The evidence of appellant’s guilt is convincing. We do not find that it preponderates against the jury verdict and in favor of appellant’s innocence. Assignment I is overruled.

The second assignment is that the Trial Court forced appellant to trial without counsel of his own choosing. The firm of Friedman and Liss were attorneys of record for appellant in the Criminal Court. The record reflects that Mr. Friedman left the courtroom prior to trial telling appellant that Mr. Liss would pick the jury and that he would return from a City Council Meeting in time to try the case. After the jury had been selected, Mr. Liss apprised the Court of this fact and requested the Court to delay the trial until Mr. Friedman returned. The Court declined to do this and Mr. Friedman did not return until shortly before 5:00 o’clock P.M., and shortly after-wards, court adjourned. Mr. Liss conducted the trial on appellant’s behalf during the first day. Appellant does not allege in his brief that Mr. Liss was inadequate counsel. Mr. Liss was an attorney of record and there is no showing that the Court was a party to any agreement to await the return of Mr. Friedman from a city council meeting.

A week before the trial, Mr. Liss informed the Trial Judge in appellant’s presence, that he would try the case and that he had prepared it. Appellant made no objection until the day of the trial when he told the Court that he desired Mr. Friedman to try the case.

The matter of granting a continuance is one of discretion on the part of the Trial Judge, and he will not be put in error for denying a continuance unless it is shown that he abused his discretion in doing so. Oden v. State, 2 Tenn.Cr.App. 304, 453 S.W.2d 441 (1970); Brown v. State, 1 Tenn. Cr.App. 739, 450 S.W.2d 35 (1969); Dowlen v. State, 2 Tenn.Cr.App. 24, 450 S.W.2d 788 (1968). The refusal of the Trial Court to allow a continuance or delay in the trial for the purpose of securing other counsel under the foregoing circumstances did not constitute an abuse of discretion. Davis v. United States, 316 F.Supp. 913 (E.D.Tenn.1970). Assignment II is overruled.

In the third assignment of error, appellant states that the Court erred in forcing appellant to trial because appellant was incompetent to understand the nature of the charges and ably assist counsel. Appellant’s counsel on appeal admits in his Brief that he “cannot find anything in the record where private counsel questioned the mental competency of the appellant or anything in the record indicating that appellant did not understand the nature of the charges”. We likewise can find nothing upon which this assignment is based. It is overruled. Roberts v. State, 4 Tenn.Cr.App. 537, 474 S.W.2d 165 (1971); Rockett v. State, 475 S.W.2d 561 (Tenn.Cr.App.1971).

The fourth assignment of error complains that the Court should have granted a mistrial because two state witnesses discussed the facts after one of them had testified.

One of appellant’s attorneys, Mr. Friedman, testified that late in the afternoon of the first day of trial, he overheard two police officers’ conversation. He said that they were “discussing distances” and the officer who testified said, “But he didn’t ask me about something else”. In a jury-out hearing, one of the officers testified that he had requested the officer who had finished testifying to “turn my court slip in”. This officer testified that the discussion about the “court slip” was the extent of their conversation and that nothing was said about the case on trial.

Appellant’s counsel moved the Court for an order prohibiting the testimony of the officer who had not testified. The Trial Judge found that no “material errors happened here”. He permitted the witness to testify. We cannot say that the rule of sequestration of witnesses was violated. Even had the rule been violated, it remains a matter of the Trial Judge’s discretion as to whether the witness who violated the rule will be permitted to testify. We will defer to the discretion of the Trial Judge unless it appears that he abused his discretion. Ezell v. State, 220 Tenn. 11, 413 S.W.2d 678 (1967); Williams v. State, 491 S.W.2d 862 (Tenn.Cr.App.1972); McCravey v. State, 2 Tenn.Cr.App. 473, 455 S.W.2d 174 (1970). We find that the Trial Judge did not abuse his discretion and we overrule this assignment.

The fifth assignment of error is that the Court erred in instructing the jury with reference to parole statutes (T.C.A. § 40-2707). The Trial Judge charged the jury as required under Section 2 -of Chapter 163, Public Acts of 1973, requiring that juries be instructed in felony cases on parole procedure and allied matters. This act was held unconstitutional by the Supreme Court of Tennessee in Farris v. State, 535 S.W.2d 608 (Tenn.1976). Appellant duly assigned this as error in his motion for a new trial and also in this court. We cannot say that the Court’s charge concerning these matters did not affect the result as to the punishment imposed upon appellant. Assignment V is sustained.

Assignment VI says that the Court erred in relieving Trial Counsel of their duty to represent appellant on appeal and in appointing the Shelby County Public Defender to represent appellant on appeal. Trial counsel was retained. The order overruling the motion for new trial found that appellant was indigent and unable to pay for trial transcript and his bond was increased from $1,500.00 to $3,000.00. Appellant posted bond the same day. After the finding of indigency, the Court granted a motion filed by trial counsel for permission to withdraw which was predicated upon the following reasons:

“Counsel would state unto the Court that he will file the Bill of Exceptions in this cause, as counsel feels he is obligated to do. Counsel would further state, however, that he can not in good conscience file an appellate brief or perform other duties connected with the appeal because he feels the appeal is frivilous [sic] and without merit. Counsel would state that he urged the defendant not to go to trial in this case, but that defendant chose to do so over counsel’s objection. For this reason and the unwillingness of the defendant to take advice of counsel, Counsel feels that he could not continue to represent the defendant in the manner demanded by the law and canons of ethics, and for him to continue to represent defendant would deprive the defendant to [sic] his right of effective representation and create an injustice to defendant.
Counsel would further state unto the Court that he has other cases on appeal, as well as numerous cases in the trial courts, which require his full attention and time and to further pursue this matter would work an injustice on other clients as well as this defendant.” (T.R. p. 43)

We first turn to an examination of the Code of Professional Responsibility, as adopted by Tennessee Supreme Court Rules. A careful examination of Disciplinary Rule 2-110 of the Code of Professional Responsibility, concerning withdrawal from employment, discloses nothing which would require a mandatory withdrawal or authorize the permissive withdrawal under the language of the Motion to Withdraw above.

We will first address counsel’s complaint that his client chose to go to trial over the attorney’s objection; therefore, the attorney could not on appeal represent the client. The question involved here is clearly answered in the ABA Standards, which have been cited with approval by the Tennessee Supreme Court in Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975):

“(a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (i) what plea to enter; (ii) whether to waive jury trial; (iii) whether to testify in his own behalf.” ABA Standards, The Defense Function § 5.2 [Emphasis supplied]. Also see Ethical Consideration 7-7, Code of Professional Responsibility.
We agree with these additional provisions of ABA Standards:
“(d) A lawyer should not accept more employment than he can discharge within the spirit of the constitutional mandate for speedy trial and the limits of his capacity to give each client effective representation . . ..” ABA Standards, The Defense Function § 1.2(d) (1968).
******
“(b) Counsel should not seek to withdraw from a case solely because of his determination that the appeal lacks merit.
(i) Counsel should give his client his best professional estimate of the quality of the case and should endeavor to persuade the client to abandon a wholly frivolous appeal, or to eliminate particular contentions that are lacking in any substance.
(ii) If the client wishes to proceed, it is better for counsel to present the case, so long as his advocacy does not involve deception or misleading the court. After preparing and filing a brief on behalf of the client, counsel may appropriately suggest that the case be submitted on brief or request permission to withdraw.” ABA Standards, Criminal Appeals § 3.2(b) (1968).

We feel that continuity of representation, if at all possible, is most favorable and most comports with canon 7 of the Code of Professional Responsibility:

“A Lawyer Should Represent a Client Zealously Within the Bounds of the Law.”

For these reasons, we espouse the procedure as outlined in ABA Standards, Criminal Appeals § 3.2(b) (1968), supra.

Obviously, this appeal was not frivolous. If trial counsel felt that he could not have ethically represented appellant for the reasons stated in his motion for permission to withdraw, he should not have accepted employment. If after employment, counsel met with ethical problems, he should have sought permission to withdraw before trial and refunded his fee to his client. We find nothing alleged in the Motion for Permission to Withdraw that would justify the discharge of an attorney after trial and after his client was declared indigent. After trial, there is nothing shown that would have deprived appellant of effective representation on appeal by trial counsel. The Trial Judge erred in permitting trial counsel to withdraw from the case. However, appellant was well-represented by the Public Defender, who filed an excellent brief on his behalf and made a convincing oral argument before us. We find that the change of counsel for appeal did not affect the result and the Trial Court’s action in discharging Trial Counsel for appeal purposes was harmless error. T.C.A. § 27-117. Assignment VI is overruled.

It results that we affirm the conviction but we reduce the sentence imposed upon appellant to not less than 3 years nor more than 3 years in the State Penitentiary, if the State consents. In the absence of the consent of the State to the reduction of appellant’s sentence, then we remand the case to the Criminal Court of Shelby County for the purpose of having a jury fix appellant’s punishment.

WALKER, Presiding Judge, and DWYER, J., concur.


author: WALKER, Presiding Judge.

text:
    Luther A. ARMSTRONG, Jr., and Richard W. Crump, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 21, 1976.
    Certiorari Denied by Supreme Court Feb. 14, 1977.

      Jay Fred Friedman, Memphis, for appellants.
    R. A. Ashley, Jr., Atty. Gen., and Robert A. Grunow, Asst. Atty. Gen., Nashville, Leland M. McNabb and Michael S. Long, Asst, Dist. Attys. Gen., Memphis, for appellee.
   OPINION

WALKER, Presiding Judge.

Luther A. Armstrong, Jr., was convicted of unlawful possession of a legend drug, methaqualone, and sentenced to 11 months and 29 days in the Shelby County jail or workhouse. In another case, Richard W. Crump was convicted of unlawful possession of LSD with intent to sell and sentenced to six to ten years in the penitentiary. In a third case, both were convicted of unlawful possession of marijuana with intent to sell with two- to five-year sentences imposed on them. They appeal in error from the three convictions, first challenging the sufficiency of the search warrant and its execution.

A search of the premises at 964 East Holmes in Memphis on August 10, 1973, resulted in seizure of the drugs introduced into evidence. When the state offered into evidence the affidavit to the search warrant, the defense counsel objected and argued it could only be marked for identification. The court sustained his objection and we have no search warrant in evidence for the appellants to attack. Nevertheless, we have considered their allegations as to the purported affidavit and find them without merit in any event.

The affidavit marked for identification recounts the personal observations of a reliable informant who had given other information to affiant in the past which had been found true and correct. The informant said he had been in the residence within three days and had seen the appellants selling and storing marijuana and Quaalude there. This affidavit is sufficient. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723; Dishman v. State, 3 Tenn.Cr.App. 725, 460 S.W.2d 855; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.

In attacking the execution of the warrant, the appellants urge that it was untimely in that it was issued August 7 but executed August 10. When the officer at trial undertook to explain the delay, the defense counsel objected to his attempt to tell a conversation between him and the informant. The conversation was on the reasonableness of the delay, not to the truth of the matters in the conversation, and was not hearsay as claimed. The appellants are responsible for the lack of evidence in the record on the delay and cannot complain.

The appellants say the seizure of items not specified in the warrant violated the constitutional ban against general warrants. They object particularly to checks, bank documents, personal letters and narcotics paraphernalia because they were not described in the warrant.

In Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), the United States Supreme Court upheld the seizure of items not specifically mentioned in the search warrant where they were relevant to the crime suggested by the warrant.

The warrant here suggested that the appellants were in possession of and selling illegal drugs. The relevance of the evidence seized is apparent. The identifying bank and personal documents were relevant in establishing proof of possession of the premises and ultimately of the drugs. The drug paraphernalia went to the proof that drugs were kept on the premises. All evidence was properly seized.

Both appellants challenge the sufficiency of the evidence to convict them. We therefore consider that evidence.

Sergeant Baker, of the Metro Narcotics Division of the Shelby County Sheriff’s Office, and several other officers arrived at 964 East Holmes where Sergeant Baker knocked and was admitted into the house by Armstrong. Sergeant Baker then gave him a copy of the search warrant and the officers proceeded with the search. Five people were at the house, the appellants, one Darwin Treece and two women.

In the northeast bedroom, officers found Treece in bed. They searched his clothes and then found approximately 28 tablets of methaqualone in a plastic bag underneath the mattress. This is the legend drug for which Armstrong was convicted. On the dresser there were scales, a grassy substance that appeared to be marijuana and an oily substance in a vial. Also on the dresser there were a number of personal papers bearing Armstrong’s name, including his checkbook, a bank statement and two letters. Three of these papers gave his address at a different location from the searched premises as did Armstrong himself when arrested. Following his arrest, Armstrong went to the closet in this bedroom and got his clothes. Treece got no clothes from the closet. One envelope found in the Southeast bedroom was addressed to both appellants at the searched premises.

In the southeast bedroom officers found Crump in bed with a woman. At the trial one Henry Burks testified that he and his girl friend were there in the bedroom but officers testified that he arrived later. In that bedroom the officers found a bottle containing about 100 LSD tablets in a jewelry box and an empty Quaalude bottle. Crump was convicted for the possession of these LSD tablets with intent to sell them.

Crump’s photograph was on the dresser in this southeast bedroom as were some personal papers. After Miranda warnings he gave his address as that of the premises searched.

In a clothes dryer in the carport an officer found a plastic bag containing approximately one-half pound of marijuana. Both appellants were convicted of possessing this marijuana with intent to sell.

The appellants did not testify or offer evidence to show that they were not in possession of these premises or in explanation of the possession. Crump’s admission that this was his residence places him in possession of the LSD in his bedroom and the marijuana in the clothes dryer. One having possession of the premises where contraband is found is presumed to be in possession of that contraband. Anderson v. State, Tenn.Cr.App., 512 S.W.2d 665.

Although Armstrong made no admission as to his possession of the premises, his personal papers and clothes were located in the room where the legend drug was found. The fact that Treece was in this room does not negate Armstrong’s possession. Anderson, supra.

We hold that a jury question was presented as to the ownership of the drugs and marijuana. From the evidence the jury was warranted in believing that the appellants were in joint occupancy of the premises. Berry v. State, Tenn.Cr.App., 474 S.W.2d 668. The marijuana was found in a place which both would be expected to use and control. The other drugs were in the rooms where they kept their clothes and personal effects. The three verdicts are supported by legally sufficient evidence.

We find no merit in the assignments that the court erred in permitting two police officers to identify the drugs and a toxicologist to testify as to her tests. Both officers were schooled and experienced in narcotics investigation and detection. The court did not abuse its discretion in permitting them to identify the drugs. The toxicologist who conducted the chemical analysis was qualified to testify. Wade v. State, Tenn.Cr.App., 529 S.W.2d 739.

Crump contends the chain of custody of the LSD was not proved. The vial containing it was not marked on account of its small size. It was, however, placed inside an empty bottle and stored with the other marked items and locked until tested and then returned to police to be again locked until trial. We find no abuse of the trial judge’s discretion in holding the chain of possession shown. Ritter v. State, 3 Tenn.Cr.App. 372, 462 S.W.2d 247.

Also meritless is the contention that a rough sketch of the premises should not have been admitted into evidence. It was not claimed to be drawn to scale. The dimensions of the house were not an issue and this sketch merely illustrated the general locations where the contraband was found. See Barrett v. State, 190 Tenn. 366, 229 S.W.2d 516.

Finally, the appellants contend the court erred by instructing the jury on parole in violation of Farris v. State, Tenn., 535 S.W.2d 608 (1976). This question was raised by the new trial motion.

The punishment for possession of a legend drug for which Armstrong was convicted is imprisonment not to exceed one year and a fine not to exceed $1500, or both. Although the jury fixed his punishment at 11 months and 29 days in the workhouse it imposed no fine.

The punishment for possession to sell marijuana is one to five years and, in addition, on conviction, a fine of not more than $3000 may be imposed by the jury. Although the jury doubled the minimum, it levied no fine.

The penalty for possession of LSD with intent to sell is five to 15 years and, in addition, the jury may fix a fine up to $18,000. Although the jury fixed the imprisonment at six to ten years, it levied no fine on Crump.

Farris holds that “every tub must stand on its own bottom.” Under those principles we think the error was harmless.

All assignments are overruled and the convictions are affirmed.

DWYER and TATUM, JJ., concur.


author: DUNCAN, Judge.

text:
    Danny James SANDERSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 1, 1976.
    Certiorari Denied by Supreme Court Dec. 6, 1976.

      Walter C. Kurtz and Richard Schwartz-berg, Legal Clinic, Univ. of Tenn., Knoxville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen. and Herbert S. Moncier, Asst. Dist. Atty. Gen., Knoxville, for appellee.
   DUNCAN, Judge.

OPINION

The appellant, Danny James Sanderson, was convicted in the Knox County Criminal Court (Division II) of incest and received a penitentiary sentence of not less than 5 years nor more than 10 years.

In this appeal, the appellant makes two assignments of error, the first of which attacks the alleged insufficiency of the evidence.

A review of the evidence shows that at the time of the present incident, the appellant and his wife were in the process of finalizing a divorce; the appellant having received custody of their 6 children. Danise Sanderson, the 12 year old victim, testified that on September 3,1975, her father called her into his bedroom and, under threats of a whipping, forced her to disrobe and have sexual intercourse with him. She further testified that her father had had sexual intercourse with her on another occasion less than 2 weeks prior to the incident charged in the indictment, and at that time had threatened to kill her and her mother if she told anyone about the incident. However, the victim did tell her mother about the first incident a few days after it occurred, and as a result, the mother took her to Ft. Sanders Hospital to be examined.

After the incident on September 3, the victim went to the home of a neighbor, seeking help. The neighbor, Mrs. Patricia Oaks, testified that shortly before 10:00 p.m. on September 3, the victim came to her house screaming and beating- on the door. When Mrs. Oaks opened the door, the victim hugged her and said: “He did it again you’ve got to help me he’ll be after me.” The victim then telephoned her mother and asked to be picked up. Mrs. Oaks further testified that the victim was crying, her face was red, and her hair “messed up.”

Mrs. Dotsie Sanderson, the victim’s mother, testified that her daughter telephoned her on September 3 and stated: “Mom, dad done it again.” When Mrs. Sanderson arrived at Mrs. Oaks’ house and saw her daughter, she described her as “just a nervous wreck. She was crying and going on.”

Mrs. Sanderson then took her daughter to the East Tennessee Children’s Hospital for an examination. A vaginal smear was taken and the results of that test were stipulated into evidence by both parties. The physician’s report stated that the victim’s vagina contained male spermatozoa and that from his examination, he could testify that he was of the definite opinion that she had had sexual intercourse within the past 10 hours.

The appellant testified in his own behalf and denied having sexual intercourse with his daughter. He implied that his wife and daughter had collaborated in an effort to have him arrested. The appellant admitted leaving the state and going to Indiana shortly after the September 3 incident. At first he maintained that he did not leave because of his knowledge that a warrant had been taken out; however, on cross-examination he admitted that he left only after learning that the officers were looking for him.

The appellant’s son, Rickie Joe Sander-son, testified and stated that his father had told him the night of the second incident that he was leaving because a warrant had been taken out for him.

A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and establishes their credibility. It also displaces the presumption of a defendant’s innocence, and raises a presumption of his guilt, and thereby the onus is put upon him of showing that the evidence preponderates against the verdict and in favor of his innocence. Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385 (1960).

From our review of the evidence, we find it to be strong and convincing to show the appellant’s guilt. In our opinion the appellant has not carried his burden of showing that the evidence preponderates against his guilt and in favor of his innocence.

Next, the appellant argues that it was error for the trial court to allow evidence of a prior act of intercourse between him and the victim. During the trial, evidence was admitted to show that the appellant had committed a similar act of incest with the victim in August, 1975, less than 2 weeks prior to the incident involved in the present prosecution. This evidence was properly admitted by the court.

“In a prosecution for incest, evidence of incest, with the same person, prior to or after the crime charged, is admissible.” 1 Wharton’s Criminal Evidence § 250, at 585 (13th edition 1972).

In Sykes v. State, 112 Tenn. 572, 576, 82 S.W. 185 (1903), which was a prosecution for violation of the age of consent statute, the state was allowed, over objection of the defendant, to prove other acts of sexual intercourse between the defendant and the victim therein, both prior and subsequent to the act on which the state elected for a conviction. While recognizing the general rule that evidence of offenses other than that for which the defendant is on trial should not ordinarily be introduced, the court said:

“But in a case like the one before us other acts of intercourse do illustrate and tend to prove the commission of the particular act of intercourse which the State has elected to try the prisoner on, because they show the relations—the state of intimacy—existing between the prisoner and the girl and tend to make very probable the commission of the crime charged.”

In Wilkerson v. State, 208 Tenn. 666, 348 S.W.2d 314 (1961), which was a prosecution for assault and battery upon a female under 12 years of age with intent to carnally know her, evidence of two prior attempts by the defendant to have intercourse with the victim was admitted as corroborative of the offense charged.

Also, we note that in the present case, the trial judge instructed the jury as to how they should treat this evidence of the prior offense, admonishing them that they could consider it only “to shed light, if any” on the case being tried. This cautionary instruction by the trial judge parallels the language used by the trial court and approved by the Supreme Court in Sykes v. State, supra.

We find no error in this record. The appellant’s assignments of error are overruled and the judgment of the trial court is affirmed.

WALKER and TATUM, JJ., concur.


text:
    Terry McCRACKEN and David Hayden, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 8, 1976.
    Certiorari Denied by Supreme Court Feb. 14, 1977.

      Luther H. Icenhour, Jr., and James R. Hamrick, Bristol, for appellants.
    R. A. Ashley, Jr., Atty. Gen., Robert B. Littleton, Asst. Atty. Gen., Nashville, R. Jerry Beck, Asst. Dist. Atty. Gen., Blount-ville, William R. Mooney, Asst. Dist. Atty. Gen., Bristol, for appellee.
   OPINION

TATUM, Judge.

A Sullivan County Grand Jury indicted appellants for robbery and assault and battery. Both were found guilty of petit larceny and they were sentenced to terms of not less than 2 years nor more than 5 years in the State Penitentiary. We affirm.

The accredited evidence was that on November 16,1974, Debbie Rhoten, night cashier for Carl’s Beverage Center in Bristol, Tennessee, observed appellants secreting packages of luncheon meat in their clothing. She started to telephone the police but did not complete the call because appellants came toward the check-out counter. Appellant, Hayden, picked up a six-pack of beer and brought it to the front of the store and placed it on the counter. The cashier rang up on the cash register the cost of the beer which was $2.21. Appellant, Hayden, did not pay for the beer but grabbed the cash register receipt from the cashier. An argument ensued between appellants and Mrs. Rhoten concerning the payment of the beer.

Appellants then walked toward the door with the beer and Mrs. Rhoten picked up the telephone to call police. McCracken turned back around and hit four buttons on her cash register. He threatened her life if she called police and he hit her. Hayden continued to walk toward the door and was outside during at least a portion of the time when McCracken and Mrs. Rhoten were having difficulty.

The police, in response to a radio call, went to Carl’s Beverage Center and observed appellants still on or near the premises of the store. One of them was carrying a bag and he threw this down upon observing the officers and both fled. The officer found that the bag contained a six-pack of beer and a quantity of meat.

McCracken testified that when Hayden approached the check-out counter with the beer, he, McCracken, turned around and started looking at books. He said that he overheard Mrs. Rhoten and Hayden arguing about the beer but that he did not know whether Hayden had paid for the beer. He testified that Hayden had the money with which to pay for the beer. He said that Mrs. Rhoten started cursing him and that he slapped her for cursing him. He denied touching the cash register and stated that he and Hayden had purchased meat at another store but did not acquire any meat at Carl’s Beverage Center.

Hayden testified that he paid for the beer and denied taking any meat from the store. He denied observing any altercation between McCracken and Mrs. Rhoten.

Hayden was asked on cross-examination whether he had talked to Mrs. Rhoten on the day before the trial and had asked her not to appear in court as the only chance he had of successfully defending the case was for her not to appear. Hayden admitted talking with Mrs. Rhoten but stated that he only asked her if she had been subpoenaed.

Mrs. Rhoten testified on rebuttal that Hayden approached her the day before the trial and told her that the only chance he had was for her not to come to court and that if she did not come, she could only be fined and that he would pay the fine. McCracken was not present during this conversation.

Both appellants questioned the sufficiency of the evidence to support their convictions. McCracken insists that the conviction of larceny cannot stand as to him, because he did not take the beer. The Trial Judge had previously instructed the jury not to consider the indictment with respect to the meat. In Maxwell v. State, 1 Tenn.Cr.App. 335, 441 S.W.2d 503, 504 (1969), Judge Walker, speaking for this Court, said:

“. . . All who are present at the commission of a robbery, rendering it countenance and encouragement, ready to assist should the necessity arise, are liable as principal actors. To be criminally responsible, the accused need not have taken any money from the victim with his own hands, or actually participated in any other act of force or violence; it is sufficient if he was present, aiding and abetting, or ready and willing to aid if necessary. Moody v. State, 46 Tenn. 299; Flippen v. State, 211 Tenn. 507, 365 S.W.2d 895. By T.C.A. Sec. 39-109, aiders and abettors are deemed principal offenders and are punished as such.”

There is no doubt that McCracken’s conduct meets the requirements above. In fact, McCracken actively participated through his show of force and violent threat to Mrs. Rhoten.

Both appellants assail their conviction for petit larceny, stating that they did not commit any act upon which the jury could find them guilty of petit larceny. Larceny is a lesser included offense in the offense of robbery. Throneberry v. Resolute Insurance Co., 206 Tenn. 216, 332 S.W.2d 227 (1960); Laury v. State, 187 Tenn. 391, 215 S.W.2d 797 (1948).

A jury verdict, approved by the Trial Judge, accredits the testimony of the witnesses supporting the verdict, resolves all conflicts of evidence in favor of the State, displaces the presumption of innocence and raises a presumption of guilt. We will not reverse on the facts unless it is shown by the appellants that the evidence preponderates against the verdict of guilty and in favor of their innocence. Pryor v. State, 217 Tenn. 695, 400 S.W.2d 700 (1966); McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). We do not find that the evidence preponderates against the verdict of the jury and in favor of the innocence of appellants or either of them. These assignments are overruled.

Appellant, Hayden, complains of the action of the Trial Judge in overruling his Motion for a Severance. There is no such motion in the record and the only indication that such motion was made is the Order of the Trial Judge overruling it. The record does not reveal that any oral motion made by Hayden was supported by affidavit. The requirement that a Motion for a Severance be supported by affidavit is mandatory. Hoskins v. State, 489 S.W.2d 544 (Tenn.Cr.App.1972); Mitchell v. State, 92 Tenn. 668, 23 S.W. 68 (1893).

Hayden says that the evidence against McCracken as to his conduct after Hayden had left the store was prejudicial against him. The accredited evidence shows that the appellants were acting in concert in the commission of this offense.

A Motion for a Severance is addressed to the sound discretion of the Trial Court. The Trial Judge will not be put in error for failure to grant a severance unless it can be shown that the appellant was clearly prejudiced thereby. The test for determining whether one charged with a joint crime is entitled to a severance is whether he would be unfairly prejudiced in his defense by being put to a joint trial. Hoskins v. State, supra; Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1 (1969). The evidence of McCracken’s conduct at the conclusion of this joint criminal act did not unfairly prejudice Hayden. This assignment is overruled.

In Hayden’s third assignment of error, he complains that incompetent or prejudicial evidence was admitted at trial. This assignment gives us no indication as to what evidence he assails as being incompetent or prejudicial. Tennessee Supreme Court Rule 14(3), which has been adopted by this Court, requires that “. [w]hen the error alleged is to the admission or rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected, with citation of record where the evidence and ruling may be found”. This Court will not review the entire Bill of Exceptions searching for incompetent and prejudicial evidence. The rule requires that litigants specify error.

We glean from appellant’s argument, that he could have had reference to the evidence of the acts of McCracken after he, Hayden, had left the store. Hayden made no objection when this evidence was offered. It is mandatory that a litigant objects to incompetent evidence when offered so as to enable the Trial Judge to rule on its competency. If the appellant fails to do this, he has waived any objection that he might have. Conboy v. State, 2 Tenn.Cr.App. 535, 455 S.W.2d 605 (1970); Floyd v. State, 1 Tenn.Cr.App. 106, 430 S.W.2d 888 (1968). Hayden’s Assignment III is overruled.

In his second Assignment of Error, McCracken contends that the Trial Judge erred in allowing testimony by Mrs. Rhoten that David Hayden asked her not to come to Court and offered to pay her fine for failing to appear. Appellant relies upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Bruton is not applicable in this case. In that case, the Supreme Court of the United States held that where a confession of one co-defendant implicating a second co-defendant is introduced into evidence and the confessing defendant failed to testify, then the constitutional rights of the non-confessing defendant are violated as he has no opportunity to cross-examine the confessing defendant. This rule is not applicable when the confessing defendant testifies and the non-confessing defendant has an opportunity to cross-examine him.

In the case sub judice, the evidence of Hayden’s effort to prevent Mrs. Rhoten from appearing as a witness, in no way implicates McCracken. It is not a confession, although it does carry an incriminating inference as to Hayden. Moreover, Hayden testified and McCracken had full opportunity to cross-examine him. This evidence was not prejudicial to McCracken. There is no merit in this assignment.

The judgment of the Criminal Court of Sullivan County is affirmed.

WALKER, P. J., and DUNCAN, J., concur.