author: LEWIS, Judge.

text:
    Eugene MOON, Sr., Plaintiff-Appellant, v. W. T. WEBB, Ottis Webb, J. C. Thompson and wife, Barbara Thompson, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    April 27, 1979.
    Certiorari Denied by Supreme Court Aug. 6, 1979.
    Robert E. Harrison, Harrison & Goin, Scottsville, Ky., Frank D. Farrar, Lafayette, for plaintiff-appellant.
    J. H. Reneau, III, Celina, for defendants-appellees.
   OPINION

LEWIS, Judge.

Plaintiff sued the defendants alleging that he was the owner in fee simple of two tracts of land, that he was entitled to quiet and peaceful possession of this land, and that defendants and all persons claiming under them had no estate or interest in the property. Plaintiff also sought a permanent injunction enjoining the defendants from asserting any adverse claim to his title and for damages against the defendants, W. T. Webb and Ottis Webb.

After an evidentiary hearing, the Chancellor, on March 22,1978, filed the following Memorandum Opinion:

If the oral testimony of Mr. and Mrs. J. H. Reneau, Jr. was properly admitted in evidence the defendants would, upon the basis of their testimony, clearly prevail. Without the Reneau testimony the defendants could not prevail. I admitted the Reneau testimony at the trial. After a considerable study of the case and the authorities cited by the plaintiff, I am of the opinion that the Reneau testimony regarding the circumstances of the preparation and execution of the two general warranty deeds was clearly incompetent and not admissible. It results, then, that the properly admitted evidence establishes the two conveyances. There was no evidence of fraud, accident or mistake. The boundaries are clearly established. The plaintiff is the holder of a clear title to said two small parcels of land.
The Clerk and Master at Celina will file this memorandum opinion as a part of the technical record in the case. The same will not be entered upon the minutes.
Done at Sparta on the 21st of March, 1978.
/s/ Scott Camp
CHANCELLOR

On April 10,1978, defendants filed a petition for rehearing which was granted.

On the rehearing, the parol evidence was admitted and the plaintiff’s complaint was dismissed.

Plaintiff has assigned three (3) errors. By his first assignment, he says:

The Chancery Court erred when it set aside its memorandum opinion entered March 21, 1978 for the plaintiff-appellant by entry of a decree on April 28, 1978, some 38 days later.

The Memorandum Opinion was not a final judgment. In this instance, even if it had been, the Chancellor did not err. Tennessee Rules of Civil Procedure 54.04 states that any time within thirty (30) days after the entry of final judgment the court may alter or amend its judgment. In this case a petition to rehear was filed 19 days after the Memorandum Opinion had been filed. This would have suspended the running of the 30-day period.

This assignment is without merit.

By his second assignment of error, plaintiff asserts:

The Chancery Court erred when it admitted the parol evidence of Mr. and Mrs. J. H. Reneau, Jr. and Mr. and Mrs. J. C. Thompson over the timely objections of the appellant.

In his brief, the plaintiff says:

At trial, over objections to parol evi-eence [sic], Mr. J. H. Reneau, Jr. and Mr. and Mrs. Thompson were allowed to testify that at the time of the conveyance on 16 Jan. 1954, it was orally understood between the parties that the first 1952 deed was to be destroyed and that the second deed was to include within its 200' X 200' feet, [sic] the 100' X 150' conveyed in the first deed in 1952.

The May 1952 deed shows the Thompsons conveyed a 100' X 150' piece of land to the Farnsleys. The deed, January 16, 1954, shows that the Thompsons conveyed a second lot to the Farnsleys. The second deed contains a full description of the 200' X 200' lot independent of the description of the 100' X 150' lot conveyed in the first deed.

The holographic will of Mrs. Emma Farnsley shows that she devised all of her property to her mother and three sisters.

The mother died intestate and the property passed to the three sisters, Mrs. North, Mrs. Raney and Mrs. Moon. In 1971, Mrs. Raney conveyed her interest in the properties to Mr. and Mrs. Moon. Mrs. Moon died in 1971 and thereafter Mrs. North conveyed her interest in the properties to Mr. Moon.

The deeds are unambiguous in their descriptions of the two lots as independent and separate pieces of property. Mr. Gene Smith, a licensed surveyor, surveyed the properties as described in the deeds and found the descriptions adequate for encompassing two different and individual lots.

Minor v. Belk, 50 Tenn.App. 213, 360 S.W.2d 477 (1962) was a suit involving a boundary line dispute. The court disallowed the consideration of parol evidence “offered to vary the terms of a written instrument which is clear and unambiguous on its face.” Id. at 227, 360 S.W.2d at 483. In Rolen v. Rolen, 57 Tenn.App. 637, 423 S.W.2d 280 (1967), another boundary line dispute, the court stated:

P]t is a settled rule that in the absence of ambiguity or irreconcilable conflict in the provisions of a deed, parol evidence is not admissible to contradict, add to or explain the provisions of the deed. See also Parsons v. Hall, 184 Tenn. 363, 199 S.W.2d 99, wherein it is pointed out that “[pjarol evidence is admissible to ‘apply’ the description contained in the written instrument, but such evidence is inadmissible to ‘supply’ a description omitted therefrom, (citations omitted) Id. at 640—41, 423 S.W.2d at 282

Here, the parol evidence was offered to show that the second deed was intended to destroy the first and that the property described in deed two was to include the 100' X 150' and the 200' X 200' conveyed. The clear and unambiguous descriptions in the two deeds do not support such an intention. The testimony of Mr. and Mrs. Thompson and Mr. Reneau, Jr. cannot be used, in violation of the parol evidence rule, to alter, amend, modify, or contradict the terms of the clear language of the deeds.

The second assignment of error is sustained.

The plaintiff asserts by his third assignment:

The Chancery Court erred when it failed to find for the appellant by reason of adverse possession and payment of real estate taxes for a 20 year period.

Having determined that the description in each of the deeds was sufficient to convey separate property and that the plaintiff is the owner of each of the lots either by conveyance or inheritance, the third assignment becomes moot.

The judgment of the Chancellor is reversed and judgments will be rendered in this Court entitling plaintiff to quiet and peaceful possession of each of the tracts of land.

Costs are taxed against the defendants.

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


source: Caselaw Access Project

license: Public Domain

text:
    BILL’S INSTITUTIONAL COMMISSARY CORPORATION, Plaintiff-Appellant, v. SHELBY COUNTY, a Political Subdivision of the State of Tennessee, Robert M. Gray, County Court Clerk of Shelby County, Tennessee, Riley C. Garner, County Trustee for Shelby County, Tennessee, and William C. Boyd, Assessor of Property for Shelby County, Tennessee, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    May 14, 1979.
    Certiorari Denied by Supreme Court Aug. 13, 1979.

      Marx J. Borod and Don M. Roman, Ro-senfield, Borod, Bogatin & Kremer, P. C., Memphis, for plaintiff-appellant.
    George T. Lewis, Jr., County Atty., Carl N. Stokes, Delinquent Tax Atty., Britton Lamb, Asst. County Atty., Memphis, for defendants-appellees.
   OPINION

LEWIS, Judge.

Plaintiff sued to recover county property taxes paid on exempt tangible personal property for the years 1973-1977, inclusive.

Defendants filed a motion to dismiss the complaint, which the Chancellor sustained.

Plaintiff is a Mississippi corporation with a distribution facility in Memphis, Tennessee. It filed tangible personal property tax schedules, pursuant to T.C.A. § 67-620 for the tax years 1973 through and including 1977. Each year, plaintiff received a tax bill based on assessments calculated by the County Tax Assessor from the figures on the Tax Schedule. Plaintiff paid the tax bills, totaling $30,216.00, without formal protest.

Plaintiff is in the business of buying, selling, distributing, transporting, and merchandising wholesale grocery items primarily for institutional use. It asserts that all goods acquired or held by it are for resale purposes only. As such, plaintiff contends that this property constitutes inventory and is exempt from ad valorem taxation pursuant to T.C.A. § 67-5801.

In its complaint, plaintiff alleges:

6.On or about March 10, 1978, while undergoing a random, audit of its Memphis facility, plaintiff was informed by an agent of the Shelby County Assessor’s office that it appeared that plaintiff was erroneously paying a tax upon inventory located at the facility. Specifically, plaintiff was informed that it was being taxed upon merchandise listed in the 1977 Tangible Personal Property Tax Schedule as inventory, despite the fact .that such property was exempt from assessment.

The defendants moved to dismiss on the grounds:

1. Plaintiff had not attempted to pursue administrative remedies pursuant to T.C.A. §§ 67-801 — 842;
2. Plaintiff had failed to pursue administrative remedies pursuant to T.C.A. §§ 67-2301 — 2313; and
3. The taxes were not paid under protest.

Subsequently, plaintiff obtained leave to amend to allege duress such as to make the tax payments involuntary.

Upon the Chancellor sustaining the motion to dismiss, the plaintiff appealed and assigned four (4) errors:

1. The Court erred in granting Defendants-Appellees’ Motion to Dismiss for the reason that the Complaint alleged facts which, for purposes of the Motion, were admitted as true, and which, if true, would permit Plaintiff-Appellant to recover in this action.
2. The Court erred in ruling that Plaintiff-Appellant was required to pursue the administrative remedies provided within T.C.A. § 67-801, et seq., and T.C.A. § 67-2301, et seq., in order to pursue this action.
3. The Court erred in ruling that Plaintiff-Appellant was required to make a formal protest at the time of payment in order to maintain this action.
4. The Court erred in ruling that Plaintiff-Appellant did not pay the taxes in quesion [sic] under protest.

The resolution of two issues will dispose of these assignments:

(1) Must plaintiff exhaust the administrative remedies available before instituting suit?
(2) Did plaintiff come within the concept of paying its taxes “under protest?”

Title 67, Chapter 8 of Tennessee Code Annotated encompasses the statutory procedures for the review of assessments. This chapter was discussed in the case of Rosewood, Inc. v. Garner, 63 Tenn.App. 559, 476 S.W.2d 273 (1971). There, plaintiff corporation appealed from the decree of the chancery court which held that it was not entitled to tax-exempt status.

The taxing authorities had raised the jurisdictional question of whether plaintiff had to exhaust its administrative remedies before it could challenge the action in court. The taxing authorities asserted that T.C.A. § 67-801 gave the County Board of Equalization authority in these matters and, since its actions were reviewable by the State Board of Equalization pursuant to T.C.A. § 67-809, the taxpayer had to exhaust the administrative remedies available through the boards before seeking certiorari.

The court followed the precedent wherein taxpayers were not required to exhaust administrative remedies when claiming tax-exempt status. See e. g., Nashville Labor Temple v. Nashville, 146 Tenn. 429, 243 S.W. 78 (1921).

The court, in Rosewood, stated:

“After a review of the authorities the Chancellor made what we deem to be a proper distinction between this type of complaint pertaining to the right of an exempt status on the one hand, as distinguished from the complaint of the taxpayer that he has been grossly, fraudulently, or intentionally overvalued or discriminated against. In the latter type of complaint, the primary issue is the valuation of the property, and the Board, because of its presumed expertise in valuation, is best qualified to hear and correct any abuse suffered. Whereas, the first type of complaint (assessing exempt property) involves primarily questions of law, with the fact questions being incidental thereto, and renders the court the proper tribunal to hear and correct these abuses which are challenged as void assessments.” Id., 63 Tenn.App. at 567, 476 S.W.2d at 276.

Here, plaintiff is not asserting that it has been “grossly, fraudulently, or intentionally overvalued or discriminated against.” Its issue is not with evaluation of the property but rather, like Rosewood, Inc., it is concerned with the taxation of exempt property, although there is no issue as to either this property’s classification as inventory or its exempt status.

Thus, the administrative remedy of appealing to the County and State Boards of Equalization pursuant to T.C.A. §§ 67-801 —842 would be an unnecessary step. Such a procedure would not invoke the “presumed expertise in valuation” of the boards. As per Rosewood, Inc., the assessing of exempt property “involves primarily questions of law . . . and renders the court the proper tribunal to hear and correct these abuses.”

In Holloway v. Putnam County, 534 S.W.2d 292 (Tenn.1976), the court discussed the remedies available for the recovery of county taxes.

There, a taxpayer brought suit to recover ad valorem taxes paid to the county and city under protest. The Chancellor sustained a motion to dismiss for failure to state a claim for which relief could be granted.

Plaintiff owned real estate which she had agreed to sell upon the condition that she pay all outstanding property taxes due. Under protest, she paid all the taxes due for the years 1936 through 1961 and sued to recover the sums paid.

In reversing, in part, as to the county taxes, the Supreme Court noted that T.C.A. § 67-2301 was enacted to provide an efficient and inexpensive remedy for taxpayers who are victims of “errors and double assessments” and thus taxes which were wrongfully collected. The Court stated that this is a permissive and alternate administrative remedy but neither mandatory nor exclusive. The Court continued:

“It provides an unacceptable remedy for a taxpayer whose taxes are tainted with the illegality of wrongful assessment or any form of invalidity which may not be processed on an administrative basis.
* * * * * *
“We hold that a taxpayer has two remedies for the recovery of county taxes, viz.: (1) the administrative procedure provided under § 67-2301, T.C.A. and (2) payment under protest and a common law suit for recovery. Such a suit is in the nature of an action of assumpsit for money had and received and is governed by the six-year statute of limitation as set forth in § 28-309, T.C.A. The cause of action accrues and the statute begins to run on the date of payment of taxes under protest.” Id. at 295.

Of import in Holloway is the requirement that the taxes be paid under protest as a condition precedent to a common law suit for recovery.

In Fentress County Bank v. Holt, 535 S.W.2d 854 (Tenn.1976), the plaintiff brought suit challenging the assessment on outstanding capital stock asserting that it should be assessed against the shareholders rather than the banking institution. The Chancellor sustained a motion to dismiss. In affirming, the court noted that none of the taxes in question had been paid under protest or otherwise.

In discussing Holloway, the court stated:

“The Holloway case, of course dealt only with the recovery of taxes previously paid. In addition to the two remedies referred to in that opinion, an aggrieved taxpayer also has the additional administrative remedy of challenging his assessment before the local board of equalization, with appeal to the state board of equalization, and ultimate judicial review in the courts, before payment of the taxes is required.” T.C.A. §§ 67-801 et seq. Id. at 856.

Further, the court distinguished Rosewood :

“It should be noted, however, that in the Rosewood case the taxpayer had in fact paid the taxes under protest, and the suit was brought to recover these and to seek an injunction against future taxation. This sharply distinguishes that case from the case at bar, where no payment under protest has been made.” Id.

The court continued:

“We believe that the Rosewood decision is a sound one, and that a taxpayer ought not to be required in all cases to go through boards of equalization or other administrative procedures in order to raise strictly legal issues. He may go through these agencies, of course, without first paying his taxes. He should, however, be permitted access to the courts to raise purely legal questions, but only after he has first paid the taxes under protest.
“Accordingly, any earlier cases in this state, which may have permitted direct suits against county taxing authorities without first requiring payment of the taxes under protest, are now modified. A county taxpayer may follow the procedure approved in Rosewood, supra, pay his county taxes, and file suit to recover them, when he only seeks to present legal questions as to the validity of his assessment; or he may go through the equalization boards, challenging any aspect of his assessment, without first paying the disputed taxes.
“He may not, however, have access to the courts without first pursuing one or the other of these courses of procedure.” Id. at 857 (footnotes omitted).

These cases require the following:

When one is claiming tax exempt status, administrative remedies pursuant to T.C.A. §§ 67-801 — 842 need not be pursued.

A taxpayer has two remedies for the recovery of county taxes:

(1) the administrative remedy pursuant to Chapter 23, or
(2) payment under protest and a suit for recovery.

A taxpayer can also challenge his assessment before the county and state boards of equalization. He may go through these boards first without paying the taxes. However, to allow direct access to the courts, the taxes must be paid under protest.

Plaintiff at bar paid all the taxes as they became due. Although it did not pay under formal protest at the time of remittance, it asserts that the circumstances were such as to constitute payment under protest.

Defendants have directed this court’s attention to an unreported decision from the Eastern Section of the Court of Appeals, Northshore Associates v. Knoxville, filed February 16, 1979, at Knoxville.

There, plaintiff sued to recover city real property taxes alleging that they were illegally imposed. The complaint alleged that a 1977 ordinance increasing the tax rate resulted in an increased tax liability and an acceleration of the payment schedule, thus depriving plaintiff of the use of certain moneys paid to the city in violation of the charter.

The complaint was later amended to add that under the terms of a trust deed conveyance to plaintiff the trustees were entitled to institute foreclosure proceedings in the event that any of the taxes were not paid. Plaintiff alleged that such foreclosure would result in damages to it which were greater than the amount of the taxes involved. Therefore, since the payment of taxes were necessary to avoid the risk of foreclosure, the payment was made under duress and was involuntary.

On appeal, the court affirmed the Chancellor’s finding that the complaint did not state a cause of action upon which relief could be granted but did so for reasons other than those assigned by the Chancellor.

Both the plaintiff and the defendant relied upon cases involving common law procedures in recovering county taxes. The requirement to maintain that action is expressed in Stroop v. Rutherford County, 567 S.W.2d 753 (Tenn.1978):

[I]f the taxpayer makes a payment of county taxes involuntarily and under duress ... he may maintain an action to recover the same, although he did not make formal protest at the time of payment. Id. at 755.

The court, in Northshore, then determined that there are differing procedures between recovering county taxes as opposed to city taxes, citing Holloway, supra. Since the plaintiff had not followed the required statutory procedure for reclaiming city taxes paid, although paid under protest, the conditions precedent were not complied with. So, the case was properly dismissed, although for the wrong reasons.

In Stroop, supra, plaintiff brought an action to recover payment of privilege taxes levied upon transfers of realty pursuant to an unconstitutional private act of the legislature. The court dismissed the complaint for failure to state a claim upon which relief could be granted.

One of the issues raised on appeal was:

When a county, as distinguished from a state or a municipal corporation, exacts payments of a tax under an unconstitutional enactment, may the taxpayer recover such tax paid without a formal declaration of protest at the time of payment, provided such payment is made involuntarily and under duress? Id. at 754.

The court held that a taxpayer does not need to make a formal protest at the time of paying taxes in order to be entitled to recover county taxes illegally exacted. It determined, in accordance with Holloway, supra, that T.C.A. §§ 67-2301 — 2313 does not govern actions to collect county taxes illegally exacted and that the taxpayer is left to resort to his common law remedies for recovery of taxes paid.

The court stated:

“Although some of the older cases held to the contrary, the modern common law rule is that if the taxes in question were paid under compulsion or duress and not voluntarily it is not necessary that protest at the time of payment be shown in order for the taxpayer to maintain an action to recover such taxes.” Id. at 754.

The court reasoned that an action to recover illegally exacted taxes paid involuntarily under coercion or duress is in the nature of actions for money had and received, a form of restitution. Since one may not have restitution of a sum of money voluntarily paid, the practice of paying under protest arose. The paying under protest at the time of payment is not the only means of providing proof that the payment was involuntarily made.

Duress in Stroop involved the refusal of the County Register’s office to record deeds until the privilege tax was paid. Therefore, the duress was such as it was necessary to pay the illegal tax to gain the protection of the recording statutes.

In determining when a tax payment is voluntary, the court stated:

“First, jt is generally agreed that if a taxpayer pays an illegal tax demand, with full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity for making such payment at the time, such a payment must be deemed to be voluntary, and cannot be recovered back.” Id. at 756.

Quoting from 72 Am.Jur.2d 343, State and Local Taxation, § 1081 (1974), the court recognized:

“ ‘However, the trend is toward greater liberality in recognizing the implied duress under which payment of a tax is almost always made, . . ., if he is put at a serious disadvantage in the assertion of his legal rights in defending proceedings brought to collect the tax, justice may require that he be at liberty to avoid this disadvantage by paying promptly and bringing suit on his own side. * * * Id. at § 1080.
“ ‘In order for a payment of taxes to be deemed involuntary, there must be some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment, over the person or property of the party making the payment, from which the latter has no reasonable means of immediate relief except by making the payment. [I]n determining whether a payment of taxes is voluntary or involuntary, the real question is whether there was such an immediate and urgent necessity for the payment as to imply that it was made under compulsion. Id. at § 1081.’ ” Id. at 756-57.

The court held:

“[T]axes wrongfully collected by a county may be recovered ‘if paid under duress sufficient to create an urgent and immediate necessity’ and that ‘[t]he payment of a sum of money to avoid the hazard of a disproportionately larger sum is sometimes treated as an involuntary payment, made under duress, so that a suit to recover the sum paid may be maintained.’ ” Id. at 759.

In order to have direct access to the courts in the matter at bar, it is necessary that the plaintiff establish that it involuntarily paid the taxes under compulsion or duress.

The plaintiff, during the course of pleadings, was allowed to amend and added the following paragraph to its complaint.

Before making the initial return aforementioned, plaintiff, acting through its agents, contacted the Shelby County Assessor or his representative, explained the nature of its business, and, as a newcomer to the city sought direction as to its liability for such taxes. Plaintiff was advised that it must abide by the assessment as made by the Shelby County Assessor, and if it failed or refused to do so, it would be subjected to penalties and other proceedings all of which will be shown in detail at the hearing of this cause. Plaintiff avers that this conduct and other conduct which will be shown upon the hearing constituted sufficient duress as to create an involuntary payment, recoverable by this action.

This allegation does not reveal whether the discussion with the county officials involved the pointed issue of the exempt inventory or the entire assessment package in general. In and of itself, the complaint does not contain a sufficient allegation of duress.

What the plaintiff asserts is that the statutory penalty for failure to pay one’s tangible personal property tax is in and of itself such as to constitute involuntary payment by duress and coercion. To acknowledge such an allegation would be to destroy any efficacy of administrative remedies. For in effect, every taxpayer is liable to such penalties and thus every taxpayer would be paying under duress sufficient to avoid any payment under formal protest. The results would be to open the courts to each and every complaint of all taxpayers concerning their tax payments.

It is of concern to this court whenever a taxpayer has paid a tax to which a government entity is not entitled. On its face the inequity appears obvious should the county, in this instance, be allowed to retain funds wrongfully obtained. Under the remedies available pursuant to Holloway and Fentress, plaintiff is foreclosed from attacking these payments in court without first exhausting its administrative remedies because it failed to formally protest the payment.

In its brief, plaintiff alleges, without any clarification as to the content of the discussion, that:

Because Plaintiff-Appellant was unfamiliar with the tax laws of the State of Tennessee, having just opened its Memphis facility in 1972, Plaintiff-Appellant contacted the Shelby County Assessor’s office to explain the nature of its business and to be advised as to the nature of its liability for taxes.

In effect, plaintiff alleges that it paid the taxes in question because of ignorance of the law and/or improper advice from the assessor’s office. Neither of these grounds would be sufficient to raise protest by duress, coercion or otherwise.

The Chancellor properly sustained the motion to dismiss. Costs are taxed to plaintiff.

MATHERNE and NEARN, JJ., concur.


author: TATUM, Judge.

text:
    Odell SMITH, Appellant, v. STATE of Tennessee, Appellee. STATE of Tennessee, Appellant, v. Odell SMITH, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 1, 1979.
    Certiorari Denied by Supreme Court July 30, 1979.

      Anthony J. Sabella, Memphis, for Odell Smith.
    William M. Leech, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, Gerald F. Easter, Asst. Dist. Atty. Gen., Memphis, for the State.
   OPINION

TATUM, Judge.

Both the State and defendant made separate appeals which were consolidated by the court. The defendant, Odell Smith, appealed his conviction for receiving stolen property under the value of $100 with punishment fixed at 2 to 5 years imprisonment. The State appealed from the trial judge’s refusing to allow the State to proceed at trial with the habitual criminal count in the indictment. The concealing stolen property conviction is affirmed and the trial court’s judgment dismissing the habitual criminal count of the indictment is reversed.

The defendant’s only assignment of error is that the evidence preponderates in favor of his innocence. No Bill of Exceptions was filed and the appellant concedes “There is no error committed by the trial court which appellant can cite to reverse the judgment of the trial court.” In the absence of a Bill of Exceptions, we must conclusively presume that the evidence was sufficient to support the judgment below. Hudson v. State, 534 S.W.2d 322 (Tenn.Cr.App.1975); Arendall v. State, 509 S.W.2d 838 (Tenn.Cr.App.1974); Francis v. State, 498 S.W.2d 107 (Tenn.Cr.App.1973). The judgment of conviction for concealing stolen property is affirmed.

We shall now address the State’s appeal. The indictment charged the defendant with second-degree burglary, larceny, receiving and concealing stolen property, and being an habitual criminal. When the jury found the defendant guilty of receiving stolen property under the value of $100, the trial court refused to allow the State to proceed on the habitual criminal charge on the ground that this conviction was not a specified felony under T.C.A. § 40-2801 et seq., and therefore, was not a “triggering offense” for enhancement of punishment under the Habitual Criminal Statute. The trial judge held that the offense of receiving stolen property under the value of $100 is the same grade of offense as petit larceny and that since petit larceny is expressly excluded in T.C.A. § 40-2801 as an offense to be considered in the definition of habitual criminals, it cannot be a triggering offense under T.C.A. §§ 40-2801 and 40-2803. We therefore have two questions of first impression before us: (1) does the express exclusion of petit larceny as a prescribed offense in T.C.A. § 40-2801 also exclude the offense of receiving stolen property under the value of $100, and (2) even if question (1) is answered in the affirmative, is petit larceny excluded as a “triggering offense” by T.C.A. §§ 40-2802 and 40-2803. We answer both of these questions in the negative.

In deciding the first question, we must carefully study the language of T.C.A. § 40-2801:

40-2801. Persons defined as habitual criminals. — Any person who has either been three (3) times convicted within this state of felonies, not less than two (2) of which are among those specified in §§ 39-604, 39-605, 39-609, 39-610, 39-3708, 40-2712, 52-1432(a)(l)(A) or were for a crime punishable by death under existing law, but for which the death penalty was not inflicted, or who has been three (3) times convicted under the laws of any other state, government or country of crimes, not less than two (2) of which, if they had been committed in this state, would have been among those specified in said §§ 39-604, 39-605, 39-609, 39-610, 39-3708, 40-2712, 52-1432(aXl)(A) or would have been punishable by death under existing laws, but for which the death penalty was not inflicted, shall be considered, for the purposes of this chapter, and is declared to be an habitual criminal, provided that petit larceny shall not be counted as one of such three (3) convictions, but is expressly excluded ; and provided, further, that each of such three (3) convictions shall be for separate offenses, committed at different times, and on separate occasions. [Emphasis supplied.]

T.C.A. § 40-2712, referred to in § 40-2801, is the infamy statute; it designates the following crimes as infamous: abusing a female child, arson and felonious burning, bigamy, burglary, .felonious breaking and entering a dwelling house, felonious breaking into a business house, outhouse other than a dwelling house, bribery, buggery, counterfeiting, violating any of the laws to suppress the same, forgery, incest, larceny, horse stealing, perjury, robbery, receiving stolen property, rape, sodomy, stealing bills of exchange or other valuable papers, subornation of perjury, and destroying a will. It is noted that larceny and receiving stolen property are referred to separately and treated as separate crimes.

In the recent case of Evans v. State, 571 S.W.2d 283, 286 (Tenn.1978), our Supreme Court, in construing T.C.A. § 40-2712 and § 40-2801 said:

“Larceny,” without further qualification, is a general term encompassing all of the statutory forms of larceny. See People v. Crane, 356 Ill. 276, 190 N.E. 355 (1934); State v. Cabbell, 252 N.W.2d 451 (Iowa 1977). It is apparent from the language of T.C.A. § 40-2801 that the legislature understood the term’s use in T.C.A. § 40-2712 to be in this general sense, for after incorporating by reference “larceny” as used in that statute as one of the specified crimes under the habitual criminal act, they expressly excluded petit larceny from that category. Such a proviso would have been unnecessary had they not understood “larceny” as used in T.C.A. § 40-2712 to include all of the statutory forms of that crime. Thus, a conviction for any of these offenses — with the express exception of petit larceny — may serve as one of the specified offenses for the purpose of establishing a defendant’s status as an habitual criminal, and the trial judge’s instruction to the jury in this case to the effect that the petitioner’s conviction for larceny from the person could be employed for that purpose were correct.

The Legislature did not choose to exclude the lesser degrees of forgery or receiving stolen property, which offenses are punishable as petit larceny. It is apparent from reading § 40-2801 and § 40-2712 the Legislature understood that forgery, receiving stolen property, and larceny are three separate and distinct offenses and only petit larceny is excluded as one of the three convictions or specified offenses required to make one an habitual criminal by T.C.A. § 40-2801.

The defendant cites Grandstaff v. Gore, 182 Tenn. 94, 184 S.W.2d 366 (1945) in support of the proposition that receiving stolen property should be treated as larceny in construing Section 40-2801. We have studied Grandstaff, but it does not reach that question; the court said:

Conceding that a conviction of receiving stolen property should, for the purpose of this hearing be classed as and with the larceny thereof, and that the degree of that offense, as of larceny, is fixed by the value of the goods . . . [Emphasis supplied.] Id. at 99, 184 S.W.2d 368.

Thus, the court concluded in Grandstaff that the appellant had been convicted of the higher degree of receiving stolen property and did not determine whether the lower degree of receiving stolen property was to be treated as petit larceny.

Since only petit larceny is excluded as one of the three convictions required to make one an habitual criminal or as a specified crime, we hold that receiving stolen property of the value of less than $100 may be counted as one of the two specified or required crimes to make one an habitual criminal under T.C.A. § 40-2801.

We now consider the second question posed about, i. e. whether receiving stolen property under the value of $100 may be considered as a “triggering” offense. The indictment charges that the defendant had been previously convicted of sufficient crimes to make him an habitual criminal as defined in § 40-2801. The statutes specifying the “triggering offenses” are T.C.A. §§ 40-2802 and 40-2803 and must be considered separately from § 40-2801, the “definition” statute. The “triggering” statutes are in the following language:

40-2802. Punishment. — When an habitual criminal, as defined in this chapter, is charged, by presentment or indictment, with the commission of any of the felonies specified in §§ 39-604, 39-605, 39-609, 39-610, 39-3708, 40-2712, 52-1432(aXl)(A), or any crime for which the maximum punishment is death, and is also duly charged therein with being an habitual criminal, as defined in § 40-2801, he shall upon conviction, be sentenced and punished as an habitual criminal, as in this chapter provided, except in those cases where the death penalty is imposed.
40-2803. Charge of habitual criminality. — An indictment or presentment which charges a person, who is an habitual criminal as defined in this chapter, with the commission of any felony specified in §§ 39-604, 39-605, 39-609, 39-610, 39-3708, 40-2712, 52-1432(a)(l)(A), or a crime for which the maximum punishment is death, shall, in order to sustain a conviction of habitual criminality, also charge that he is such habitual criminal. Every person so charged as being an habitual criminal shall be entitled, upon his motion therefor filed in the cause at any time prior to trial, to demand and to have from the state, a written statement of the felonies, prior convictions of which form the basis of the charge of habitual criminality, setting forth the nature of each such felony and the time and place of each such prior conviction. He shall not, without his consent, be required to go to trial within twenty (20) days from and after the time when such statement was supplied to him or to his counsel of record.

Sections 40-2802 and 40-2803 do not exclude either the lesser grade of receiving stolen property or petit larceny as a “triggering” offense; both grades of both crimes are within the ambit of the “triggering” statutes. Even if we could accept the argument that receiving stolen property under $100 should be treated as petit larceny, this would not benefit the defendant as petit larceny is not excluded. The “triggering” statutes include both degrees of both offenses.

Our Supreme Court held that the State must charge and prove that a defendant is an habitual criminal before he is indicted for the fourth or “triggering offense” (the offense for which punishment is sought to be enhanced). Evans v. State, supra. We must conclude that the Legislature intended that when one who has already been convicted of the number and character of crimes to make him an habitual criminal, then commits one of the additional crimes specified in T.C.A. §§ 40-2802 and 40-2803, including petit larceny, such person shall be subject to the enhanced punishment for the additional crime.

The judgment convicting the defendant for receiving stolen property of the value of less than $100 is affirmed. The trial court’s judgment refusing the State a hearing on the habitual criminal count of the indictment is reversed and the case is remanded for trial on the habitual criminal count of the indictment.

Since the appeal of the defendant presents no question for determination by this court or the Supreme Court on his conviction for receiving stolen property, his bond is revoked.

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


author: O’BRIEN, Judge.

text:
    Kennon SUMMERLIN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 15, 1979.
    Certiorari Denied by Supreme Court July 9, 1979.
    Marvin P. Morton, Jr., Paris, for appellant.
    William M. Leech, Jr., Atty. Gen., Jennifer Helton Small, Asst. Atty. Gen., Nashville, W. R. Kinton, Jr., Dist. Atty. Gen., Trenton, for appellee.
   OPINION

O’BRIEN, Judge.

On May 17, 1978, defendant submitted guilty pleas on two charges of incest. The statutory penalty for this offense is confinement in the penitentiary for not less than five (5) years nor more than twenty-one (21) years. (T.C.A. Sec. 39-705). He was sentenced to serve five (5) years in each case. On the same date the court proceeded with a hearing on a previously filed motion for suspended sentence.

The evidence considered consisted of the testimony of petitioner, and his wife, a pre-sentence report, and two evaluation reports from a psychiatrist attached to the Mental Health Center where defendant had been referred for psychiatric examination.

The complete statement of the court in the Bill of Exceptions denying the application for suspended sentence is as follows:

“Mr. Morton, this is one of those matters that is very difficult for the Court to determine what is the best. I have natural sympathy for the victims of this thing and for the whole family and for Mr. Summerlin himself. This is a crime that goes against all moral principles of our country and all sense of civil society as far as I’m concerned. I do not and will not at this time place the man on parole.”

The order in the Technical Record pertaining to the suspended sentence sets out that the motion came on for hearing “upon the motion, probationary report, evidence introduced in open court, argument of counsel, and the entire record, from all of which the court finds said motion not to be well-taken, and therefore, disallowed.”

The petitioner is not eligible for a suspension of sentence. T.C.A. Sec. 40-2901 specifically excepts from that privilege “those cases in which the defendant has been convicted of two (2) or more felonies for which the maximum sentence provided by law exceeds ten (10) years confinement in the State Penitentiary.”

Were we otherwise able to consider the matter neither the trial judge’s statement in the Bill of Exceptions, nor the order contained in the Technical Record recites sufficient reasons to enable this court to make a meaningful review of the denial of probation. The record should contain findings of fact of the trial judge respecting the criteria set out in the statutes, and case law for determining suitability for probation. T.C.A. Sec. 40-2904, Stiller v. State, 516 S.W.2d 617 (Tenn.1974); Hooper v. State, 201 Tenn. 156, 297 S.W.2d 78 (1956).

However we have reviewed the evidence in the record, including the pre-sentence report and the medical reports included as exhibits to the Bill of Exceptions. The testimony was very sparse, as was the information contained in the pre-sentence report. The medical reports are the only evidence to support the meager findings of the trial judge in the Bill of Exceptions. It appears from the medical reports that the mental condition of the defendant was somewhat unstable at the time of the report in May, 1978. Since the petitioner is ineligible for parole under the statute, the issue is moot.

The appeal is dismissed.

DWYER and TATUM, JJ., concur.


author: DWYER, Judge.

text:
    STATE of Tennessee, Appellant, v. Raymond BRADAM et al., Appellees.
    Court of Criminal Appeals of Tennessee.
    Feb. 22, 1979.

      William M. Leech, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., Nashville, Richard A. Fisher, Dist. Atty. Gen., Cleveland, for appellant.
    Richard L. Banks, Cleveland, for appel-lees.
   OPINION

DWYER, Judge.

This is an appeal by the State from the following order as entered by the Bradley County Criminal Court:

“This cause came on to be heard on the 27th day of May, 1978, upon Motion by the Defendants for return of certain weapons confiscated from the Defendants in this cause. From the record and proof, it appears that the following guilty pleas were entered in this Court by Raymond L. Bradam, his son Richard Bradam, his daughter-in-law Opal Bradam, and another son, Billy Bradam;
1. Raymond L. Bradam:
# 9075 — Aiding and Abetting Manufacturing Marijuana, 2 to 5 years in the penitentiary, suspended.
2. Opal L. Bradam:
# 9113 — Kidnapping, 2 to 5 years, suspended.
# 9122 — Aiding and Abetting Manufacturing Marijuana, 2 to 5 years, suspended.
3. Richard A. Bradam:
# 9109 — Armed Robbery, 10 years in the penitentiary.
# 9116 — Aggravated Assault, 2 to 10 years in the penitentiary.
# 9111 — Kidnapping, 2 to 10 years in the penitentiary.
# 9121 — Manufacturing Marijuana, 2 to 5 years in the penitentiary.
4. Billy R. Bradam:
# 9110 — Armed Robbery, 10 years in the penitentiary.
# 9114 — Kidnapping, 2 to 10 years in the penitentiary.
# 9117 — Aggravated Assault, 2 to 10 years in the penitentiary.
# 9120 — Manufacturing Marijuana, 2 to 5 years in the penitentiary.
“By plea bargaining, dismissals were entered on Motion of the State of Tennessee in the following:
1. Raymond L. Bradam:
# 9108 — Armed Robbery, Dismissed.
# 9112 — Kidnapping, Dismissed.
# 9115 — Aggravated Assault, Dismissed.
# 9195 — Use of Firearm in Commission of Felony, Not Guilty.
2. Opal L. Bradam:
# 9195 — Use of Firearm in Commission of Felony, Not Guilty.
3. Richard A. Bradam:
# 9195 — Use of Firearm in Commission of Felony, Not Guilty.
4. Billy R. Bradam:
# 9195 — Use of Firearm in Commission of Felony, Not Guilty.
# 9196 — Felony Possession of Weapon, Not Guilty.
“It appears, further, that two (2) weapons were confiscated by law enforcement officers in the course of their investigation, to-wit: A Winchester Model 12 shotgun (taken from the home of Billy R. Bradam) and a .22 caliber revolver (taken from the residence of Richard and Opal Bradam). Said weapons were confiscated during the execution of search warrants at the two residences.
“Upon hearing of the Motion herein, Raymond Bradam, father of Billy and Richard Bradam, announced to the Court, by unsworn testimony, that the shotgun belonged to him.
“Inasmuch as Defendants Raymond Bra-dam and Opal Bradam were not convicted of a violation of T.C.A. Sec. 39-4901, it is the opinion of this Court that these two (2) weapons should be returned to their respective owners. It is, therefore,
“ORDERED, ADJUDGED and DECREED that the shotgun heretofore described be returned to Defendant Raymond Bradam and the pistol heretofore described be returned to Defendant Opal Bradam and that the District Attorney or law enforcement officer having custody of the said items return them in open Court on this, the 27th day of May, 1978. “Enter this 15th day of June, 1978, for the 27th day of May, 1978.”

The State’s sole assignment of error is that the return of the weapons in question is based upon an erroneous interpretation of the law relating to the confiscation and forfeiture of weapons.

The State contends the trial court too narrowly construed Biggs v. State, 207 Tenn. 603, 341 S.W.2d 737 (1960), in ordering the firearms returned to their owners, Raymond Bradam and Opal Bradam, on the sole basis that neither was convicted of carrying a dangerous weapon, T.C.A. § 39-4901. In Biggs, supra, the defendant was acquitted of such a charge, T.C.A. § 39-4901, and the firearm was rightfully returned to him, for Biggs was the lawful owner and was in lawful possession of the weapon when it was seized from him. We think Biggs is viable law under the facts of that case which are a far cry from the factual situation here.

The State contends that pursuant to T.C.A. § 39-4912 weapons can be adjudicated as contraband and in certain cases disposed of by the State without a conviction pursuant to T.C.A. § 39 — 4901. We agree with the State. However, contrary to the State’s contention, we think the confiscation statute, T.C.A. § 39—4912, should be strictly construed. Biggs v. State, supra. Also, since Biggs, T.C.A. § 39-4912 has been amended to read in part:

“. . any confiscated firearm found to have been stolen from its rightful and legal owner or one rightfully and legally possessing it, shall, at the conclusion of the last legal proceeding involving it, be forthwith returned to such owner or possessor, or if the person from whom it was seized is the rightful and legal owner or possessor of such firearm and he is not convicted in any proceeding arising out of or involving the possession thereof, it shall at the conclusion of such proceeding, be forthwith returned to him.” (Emphasis added.)

This proviso was in full force and effect at the time of the entry of the order by the trial court. The appellees contend that since they were the rightful owners and were not convicted of any charge arising out of or involving the possession thereof, T.C.A. § 39-4901, the weapons were rightfully returned to them. However, we think ownership of the weapons and a conviction of carrying a dangerous weapon, T.C.A. § 39-4901, are not the only criteria to be observed by the trial court in determining whether or not the firearm should be returned to its owner. If the firearm has been confiscated by any law enforcement officer and it has been determined that the firearm was used in the commission of a crime, i. e., contraband, then we construe the language of T.C.A. § 39-4912 to read that the firearm will be returned to its owner only if it was stolen from him; or, the firearm will be returned to the person from whom it was seized only if this person is the rightful and legal owner or possessor of the firearm and this person is not convicted in any proceeding arising out of or involving the possession of the firearm. Otherwise, the confiscated firearms will be forfeited.

The only testimony in the record concerning the ownership of the weapons are the unsworn statements of Raymond Bradam. The alleged owners, Raymond Bradam and Opal Bradam, could not get the firearms returned under the first exception enumerated above, since there is no evidence in the record that the firearms were stolen from them. Raymond Bradam should not have the shotgun returned under the second exception because, according to the record, the shotgun was not seized from him but was seized from the home of Billy Bradam. There is also evidence in the record that the revolver was confiscated from the home of Richard and Opal Bradam. Billy Bradam and Richard Bradam were convicted of aggravated assault, armed robbery, and kidnapping. Opal Bradam was convicted of kidnapping. If Billy Bradam, Richard Bradam, and Opal Bradam were the legal possessors of the weapons and used the weapons in the offenses of which they were convicted, then they, the persons from whom the firearms were seized, cannot get the weapons returned as we construe the second exception in T.C.A. § 39-4912.

We think it was the intent of the legislature that weapons used in the commission of crime should be confiscated and taken out of circulation, subject only to the two exceptions as contained in the proviso.

In short, if the pistol seized from the home of Billy and Opal Bradam was used in the commission of the crimes and Opal was convicted in any of these proceedings, she is not, as we construe T.C.A. § 39-4912, entitled to the return of the pistol. Since the meager record presented is totally insufficient to support the trial court’s ruling, the record is remanded for a hearing in accordance with our construction of T.C.A. § 39-4912.

O’BRIEN and TATUM, JJ., concur.


text:
    Bessie Louisa HALL, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 8, 1979.

      Edwin C. Lenow, Memphis, for appellant.
    William M. Leech, Jr., Atty. Gen., Charles L. Lewis, Asst. Atty. Gen., Nashville, James Arthur, III, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

O’BRIEN, Judge.

Defendant appeals from her conviction for burglary in the second degree with punishment fixed at three (3) years in the penitentiary.

All of the assignments of error pertain to the jury instructions. Defendant first says she was entitled to a special instruction on criminal trespass.

The State’s evidence shows that the apartment of Mrs. Willie B. Walls was burglarized on the morning of February 2, 1977. On the day of the burglary defendant was observed backing an automobile to the front door of the Walls’ apartment. She was accompanied by several other members of her family. The witness observed defendant and some of the others emerging from the window of the burglarized apartment carrying property belonging to the victim. The window pane had been removed from its frame. The witness observed defendant and the others fleeing from the scene. She properly identified defendant in court. Some of the loot from the burglary was subsequently discovered in an adjacent apartment which had been previously vacated by defendant’s family. Defendant admitted being in the area but attempted to cast an innocent purpose on her presence there. She denied implication in the crime. Her testimony was generally corroborated by the testimony of other witnesses.

A special instruction on criminal trespass was submitted and denied. It is insisted that criminal trespass is a lesser included offense of burglary. In Wright v. State, 549 S.W.2d 682 (Tenn.1977), our Supreme Court considered the criteria constituting a lesser included offense, in doing so it was said:

“The true test of which is a lesser and which is a greater crime is whether the elements of the former are completely contained within the latter so that to prove the greater the State must first prove the elements of the lesser.”

One of the elements of common law criminal trespass is that the entry upon the property of another must be accompanied with force amounting to a breach of the peace. Temple v. State, 66 Tenn. 109 (1874). The offense of burglary may be committed without the use of force. The “breaking” element of burglary can be established by opening a partially raised window. Claiborne v. State, 113 Tenn. 261, 83 S.W. 352 (1904), or merely by the opening of an unlocked door, Goins v. State, 192 Tenn. 32, 237 S.W.2d 8 (1950). The “entry” element of burglary can be accomplished without the accompaniment of any force, such as penetration of the space within the premises by the hand or an instrument held in the hand. See State v. Crow, 517 S.W.2d 753 (Tenn.1974). There was no obligation on the part of the trial court to charge on the offense of common law criminal trespass because it is not a lesser included offense of burglary as charged in this indictment. We overrule the assignment.

It is said it was error for the trial judge to instruct the jury on the element of flight since there was no evidence that anyone chased the defendant nor did she attempt to leave town.

Defendant was observed fleeing the scene of the crime. In reference to such matters we cite from 29 Am.Jur., Evidence, Section 280, page 329:

“The fact that a defendant after the commission of a crime concealed himself or fled from the vicinity where the crime was committed, with knowledge that he was likely to be arrested for the crime or charged with its commission, may be shown as a circumstance tending to indicate guilt.”

Defendant endeavored to explain her flight by showing she was afraid of being seen because she was on probation at the time. Evidence of flight to avoid arrest may be rebutted by a credible explanation of some motive other than guilt, but the conclusion to be drawn from such evidence is for the jury upon proper instructions from the trial court. See Brown v. State, 4 Tenn.Cr.App. 381, 472 S.W.2d 230 (1971). We overrule the assignment.

It is argued that the instructions to the jury on aiding and abetting were improper and a denial of due process of law. It is defendant’s theory that she was never specifically charged as an aider and abettor, therefor the instructions were improper.

There was ample evidence from which the jury could have found the defendant guilty of aiding and abetting in the burglary as well as actual participation in the principal offense. There was evidence from which the jury could have concluded she was actively engaged in the coordination of the activities of her brothers and sisters in burglarizing the apartment. An aider and abettor is fully culpable of the principal offense and no special notice is required to inform one of that status. See Robinson v. State, 513 S.W.2d 156 (Tenn.Cr.App.1974). The trial judge correctly instructed the jury that defendant might be found guilty in her capacity as an aider and abettor of the burglary, and the assignment of error is without merit.

The judgment of the trial court is affirmed.

DWYER and TATUM, JJ., concur.


text:
    STATE of Tennessee, Appellant, v. Roy Edward McCORMICK and Nancy J. Maddox, Appellees.
    Court of Criminal Appeals of Tennessee.
    March 14, 1979.
    Certiorari Denied by Supreme Court July 30, 1979.

      William M. Leech, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., John P. Apel, Asst. Dist. Atty. Gen., Nashville, for appellant.
    Robert H. Schwartz, Nashville, for McCormick.
    Harlan Dodson, III, Nashville, for Maddox.
   OPINION

TATUM, Judge.

The State has brought this petition for the common law writs of certiorari and supersedeas to review the action of the trial court in granting the respondents’ motion to suppress evidence in these drug cases. The trial judge granted the motion to suppress on the grounds that the search warrant used to seize the drugs was unconstitutionally issued because the affidavit for the warrant did not give a specific date on which illegal activity was observed.

The warrant was issued on the affidavit of a police officer relating facts given to him by an unnamed informant. The portion of the affidavit with which we are now concerned stated, “that while in the above described location in the past 72 hours, [the informant] did observe Roy E. McCormick, M/W, and Nancy Jeannette Maddox, F/W, in possession of a quantity of marijua-na_” In granting the motion to suppress, the trial judge held that the Constitution required a calendar date (a specified day, month and year) to establish the time the illegal activity was observed and the use of the phrase “in the past 72 hours” did not meet constitutional requirements. In reaching this result, the trial judge misconstrued the language of Owens v. State, 217 Tenn. 544, 399 S.W.2d 507 (1965) and Welchance v. State, 173 Tenn. 26, 114 S.W.2d 781 (1938).

In the Welchance case, the affidavit stated: “The affiant was informed by a reliable person that the informer was on the premises and saw a quantity of whiskey delivered and put in the above-described building . . . ” After quoting the affidavit, the Welchance court made this observation:

It will be noted that affiant does not disclose the date on which he received the information, nor the date when his informant visited the dwelling of plaintiff in error and drank some whisky. So far as appears from the affidavit, the visit referred to may have taken place more than a year prior to the time that it was made.

In discussing the question, the Welchance court stated that, “It is essential that the date on which the alleged offense was committed be stated in the affidavit in order that the magistrate may determine whether probable cause existed for the issuance of the warrant.” The court made other pronouncements employing the word “date.” However, when we read the case in context, it is obvious that the court was not using the word “date” literally, but meant that facts must be stated in the affidavit from which the Magistrate could conclude that the defendant was at the time of the issuance of the warrant still in the unlawful possession of intoxicating liquors.

The affidavit under scrutiny in Owens v. State, supra, specified that the illegal activity was observed on the same day of the affidavit. The Owens opinion contains the following dictum:

Finally, there is authority in Tennessee holding that observations of the informer, or the affiant, must be stated to have been made on a particular named date. Welchance v. State, 173 Tenn. 26, 114 S.W.2d 781 (1938). The affidavit in the instant case meets that requirement. [Emphasis supplied.]

In Bentley v. State, 552 S.W.2d 778 (Tenn.Cr.App.1977), this court considered the validity of a search warrant based on an affidavit which gave no indication as to the time the illegal activity was observed. The search warrant was held to be void, on authority of Welchance, because “it [the affidavit] fails to state a date when the offense was supposed to have occurred.”

There are no cases holding a search warrant invalid on the ground that the affidavit procuring the warrant does not specify the day, month, and year of the observation of alleged illegal activity; the holdings are to the contrary. In Waggener v. McCanless, 183 Tenn. 258, 191 S.W.2d 551 (1946), the Supreme Court was confronted with the identical question with which we are now faced with an affidavit in the following language:

“This affidavit is based on information just received from a good and reliable person whose name affiant has disclosed to me as a Justice of the Peace. Affiant states on oath that said informant has just told him that he had just recently seen the above named person place a quantity of intoxicating liquors on the premises hereinafter described; also, that he has recently seen sundry persons drinking intoxicating liquors on said premises and going there at different hours of the day and night sober and returning in a drunken condition. (In the margin) Affiant’s informant says said sales have been made to him frequently and within the last few days.” (Emphasis supplied.)

The Supreme Court held the foregoing affidavit to be sufficient to support a finding of probable cause, stating:

It appears from his brief and argument that petitioner bases these assignments on the language of this Court in Welchance v. State, 173 Tenn. 26, 114 S.W.2d 781, which the Court followed in Everett v. State, 182 Tenn. 22, 184 S.W.2d 43, 44. In both these cases it was said by this Court that a definite statement of the “date” of the observation of the offense on which the affidavit was based must appear.
The protection afforded the citizen by the Constitution is against unreasonable searches of his person or property and if there be “probable cause” to justify a conclusion by a reasonable person that a breach of law is existing on such person or premises at the time of the application for the warrant, the search is not unreasonable. In arriving at “probable cause” one essential element, and the only one with which we are here concerned, is that of the time at which the informant of the officer secured the information on which the latter applies for the warrant. Such time is essential and must appear on the face of the affidavit, and of course, the nearer it is to the time of the application the more effective it is to justify a conclusion of probable cause.
There is and could not reasonably be any rigid rule, arbitrarily made, that the time element, that is the time elapsed between the observed offense and the application for the warrant, had to be supplied in one fixed way. So long as the statement of the time is certainly and definitely made, that is all that the law does or could require.
******
In the Welchance case, supra, it is clear that Mr. Justice McKinney was using the word “date” as synonymous with time, since he says expressly, “it was unnecessary to state in the complaint the date on which the liquor was bought.” (173 Tenn. at page 29, 114 S.W.2d at page 782.) In the affidavit there under attack, no attempt was made by the affiant to give the date or time at all, and there was on the face of the affidavit no way to estimate the time element on which the magistrate had arrived at the conclusion of probable cause.
******
We have no doubt that this is the law and that so long as the time or date be definitely and clearly fixed, no particular method for fixing it could reasonably be required. Further, there is no requirement that the observation of the occurrence shall have been observed within any specified number of days prior to the application for the warrant.
It remains to consider whether a statement that the officer’s informant had observed an offense “just recently” and “within the last few days,” was a statement of the time element of sufficient definiteness and certainty to supply the time element in a reasonable conclusion of probable cause. We have no hesitation in deciding that to a reasonable mind, a statement by an observer at the time he made application for a warrant, that he had just recently seen a quantity of liquor stored on certain premises and had within the last few days, bought drinks of intoxicating liquor on those premises, would lead to the conclusion that the unlawful condition continued to exist on those premises at the time of the application for the warrant.

In Hicks v. State, 194 Tenn. 351, 250 S.W.2d 559 (1952), the Supreme Court held an affidavit sufficient to justify the issuance of a search warrant when it stated, “Affiant’s informant said that he, the informant, had within the last ten days” observed illegal activity on the premises to be searched.

We hold that the affidavit in the case sub judice was sufficient to establish probable cause and to authorize the issuance of a valid search warrant. The Wel-chance, Owens, and Bentley cases are not inconsistent with the Hicks and Waggener cases; what was said by the Supreme Court in the Waggener case interpreting the Wel-chance case, is applicable to the Owens and Bentley cases. It is necessary that the affidavit establish a time during which the illegal activity occurred so as to make it appear to the magistrate that the illegal occurrence is not too remote to establish probable cause at the time of the application for a search warrant. However, there is no rigid rule or specific language required to establish the time element. The affidavit in the case sub judice meets this test and was sufficient to establish that the informant’s observations were not too stale to establish probable cause at the time the warrant was issued.

The respondent insists that certiora-ri does not lie to review the action of the trial judge in suppressing the evidence procured by the search. In the State’s sworn petition for certiorari, it alleges that the suppression of this evidence completely and effectively ends the prosecution and leaves the State with no remedy. We have above held that the suppression of this evidence was without legal authority. Obviously, if the State were forced to trial without the benefit of the evidence produced by the search, it would lose a right and interest that could not be recaptured on appeal, since the State cannot appeal from an acquittal. We therefore must grant certiorari and supersedeas as mandated by our Supreme Court in State v. Johnson, 569 S.W.2d 808 (Tenn.1978).

The writs of certiorari and supersedeas are granted. The order of the trial court holding the search warrant invalid and suppressing the evidence of the search is reversed and these cases are remanded for trial.

O’BRIEN, J., and JERRY SCOTT, Special Judge, concur.


author: DUNCAN, Judge.

text:
    STATE of Tennessee, Appellant, v. Charles MOSES et al., Appellee.
    Court of Criminal Appeals of Tennessee.
    May 4, 1979.
    William M. Leech, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., Nashville, Richard A. Fisher, Dist. Atty. Gen., Cleveland, for appellant.
    Gene Worthington, Madisonville, for ap-pellee.
   OPINION

DUNCAN, Judge.

The State appeals from an order entered by the Monroe County Criminal Court returning a vehicle to its owner, the appellee herein. This vehicle had been seized by law enforcement officials pursuant to the provisions of the Tennessee Drug Control Act of 1971.

The State argues that the trial court was without jurisdiction or authority to return this vehicle to its owner. We agree.

No bill of exceptions was filed in this case, but the technical record shows that the appellee was indicted for possession of marihuana with intent to sell. Subsequently, the trial court suppressed the marihuana evidence, holding that it had been seized as the result of an unlawful search. The prosecution was dismissed, and a verdict of not guilty was entered for the appellee. Later, on motion of the appellee’s counsel, the trial court entered an order returning to the appellee the automobile that had been seized.

The provisions of T.C.A. § 40-519 vests the trial court with jurisdiction to restore property seized as a result of an illegal search. This section provides, in part, that after the sustaining of a motion to suppress illegally obtained evidence, the seized “property shall be restored unless otherwise subject to lawful detention.” (emphasis added). Thus, in the present case, if the seized vehicle was being otherwise lawfully detained, then the restoration jurisdiction afforded the trial court by this statute is absent. Therefore, other statutes dealing with the return of seized property must be looked to in order to resolve the issue presented in this case.

T.C.A. § 52-1443(a)(4) subjects to forfeiture a vehicle that is used or intended to be used for transporting or facilitating the transportation of controlled substances for the purpose of resale.

T.C.A. § 52-1443(d) provides that “[p]ro-perty taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the commissioner of safety or his authorized representative, agent, employee, or a sheriff, deputy sheriff, municipal law enforcement officer, or constable subject only to the orders and decrees of the circuit or criminal court.” (emphasis added).

We interpret the emphasized language in the above quoted statute as referring only to orders and decrees that the trial court may need to enter incident to the use of the property as evidence in the criminal prosecution for the charged violation, or as may relate to the use of the property by the seizing authority. See T.C.A. § 52-1443(d)(4). This language should not be read as conferring on trial courts the authority to determine the ultimate disposition of the seized property. We are led to this conclusion by the mandatory language of T.C.A. § 52-1443(i) which provides that confiscation proceedings under the Tennessee Drug Control Act of 1971, T.C.A. §§ 52-1408 — 52-1448, “shall be conducted in accordance with the provisions set forth in §§ 52-1404 through 52-1407.”

T.C.A. § 52-1404 outlines the procedure to be followed when property is seized incident to a violation of the Drug Control Act. Insofar as here applicable, this section requires the seizing officer to give to the person from whom the property was seized a receipt which shall state a description of the seized property, the reasons for the seizure, the recovery procedure available to a claimant, the time in which a recovery claim must be filed, and the consequences for failure to file a claim. A copy of the receipt must be filed in the office of the Department of Safety. The claimant must file his claim with the Commissioner of Safety within 15 days after receipt of the notice of seizure, and the Commissioner must set a hearing within 15 days from the date the claim is filed. Also, the statute places upon the Commissioner the responsibility of determining whether the seized property shall be declared contraband, forfeited and sold, or whether it should be returned to the claimant.

T.C.A. § 52-1406 provides that when property is thus seized for a violation of the Drug Control Act that:

If no claim is interposed, such narcotic drugs, marihuana or other property shall be forfeited without further proceedings and the same shall be sold or disposed of as herein provided. The above procedure is the sole remedy of any claimant, and no court shall have jurisdiction to interfere therewith by replevin, injunction, su-persedeas or in any other manner. (emphasis added).

Clearly, under the provisions of these statutes, the legislature has vested the Commissioner of Safety with the exclusive jurisdiction to initially determine whether property seized incident to a violation of the Drug Control Act should be forfeited or returned to the lawful claimant, and has provided for judicial review of the Commissioner’s ruling, if such is desired by an aggrieved party.

In the past our Supreme Court has dealt with questions analogous to the case at bar, involving the disposition of property seized incident to violations of the liquor and fish and game laws where, at the time, those laws placed upon some state administrative head the initial responsibility of determining, to the exclusion of the courts, the disposition of the seized property. See generally State v. McCrary, 205 Tenn. 306, 326 S.W.2d 473 (1959); Casone v. State, 176 Tenn. 279, 140 S.W.2d 1081 (1940). In those cases the Supreme Court, in construing provisions that were then in those statutes and which contained language similar to that found in the statutes with which we are presently concerned, reached the same conclusions as we have in the present case.

Accordingly, we hold that the trial court was without jurisdiction to return the seized vehicle to the appellee. The trial court’s ruling is hereby reversed and its order is dismissed.

CORNELIUS, J., and JOHN D. TEM-PLETON, Special Judge, concur.

      . The Commissioner’s ruling may be reviewed by petition for common law writ of certiorari to the Circuit Court of Davidson County, with appellate rights to the Supreme Court being available. T.C.A. § 52-1405.

      . The appellant concedes in his brief that the subject vehicle was seized pursuant to the authority of the Tennessee Drug Control Act, that he was given a notice of seizure, and did not make a claim within the 15 day period, as required by T.C.A. § 52-1404.


author: WALKER, Judge.

text:
    Chester Wright BURNS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    May 31, 1979.
    Certiorari Denied by Supreme Court July 30, 1979.
    Walker Gwinn, Public Defender’s office, Memphis, for appellant.
    William M. Leech, Jr., Atty. Gen., Charles L. Lewis, Asst. Atty. Gen., Nashville, Neil Taylor, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

WALKER, Judge.

In this appeal from his conviction for felonious escape with 90 days’ imprisonment, Chester Wright Burns contends that (1) there is a fatal variance between the indictment and the proof; (2) his conduct does not amount to an escape; and (3) his constitutional rights under the United States Constitution were violated because he was subjected to selective prosecution. We overrule all assignments of error and affirm the conviction.

The indictment charges that “. (D)id unlawfully and feloniously, while lawfully confined in the Memphis Community Release Center, a Division of the State Penitentiary of the State of Tennessee, the aforesaid Work Release Center located in Memphis, Shelby County, Tennessee, on conviction for the offense of ROBBERY WITH A DEADLY WEAPON, said offense being a Felony, escape therefrom.” (emphasis supplied)

The evidence showed that the appellant was confined at Memphis Correctional Center, a division of the Department of Corrections, rather than that alleged, which is a separate division of the Department of Corrections.

In Ray v. State, 577 S.W.2d 681 (1978), we were presented a similar claim of variance. Ray contended that the state had failed to prove the specific allegation that he was confined in Brushy Mountain Prison, although it was shown that he was incarcerated lawfully under state authority. We held:

“The locus of his incarceration is not a critical inquiry in establishing the crime of escape. As was said in Chisom [Chisom v. State, 539 S.W.2d 831 (Tenn.Cr.App.)] the offense is the escape from custody of the confining authority, so that the place of confinement is not, in fact, a relevant inquiry. Both Johnson v. State, 148 Tenn. 196, 253 S.W. 963 (1923), and State v. Brooks, 224 Tenn. 712, 462 S.W.2d 491 (1970), recognize that for such a variance between the indictment and the proof to be fatal to a conviction the variance must pertain to a material aspect of the offense. If surplusage is with respect to a matter legally essential to the charge in the indictment, then it must be proven in the degree of detail alleged. Johnson, supra. The indictment here charged Ray with escaping ‘while confined as an inmate in the Brushy Mountain Penitentiary in Morgan County, Tennessee, under the custody and supervision of the Department of Corrections of the State of Tennessee, . . . .’ (emphasis added). The trial court’s minutes show that Ray was committed to the warden of the state penitentiary, and the state penitentiary must be viewed as a system of prisons, rather than one place of incarceration.”

Further, the indictment here gave Burns notice of the charge against, him in order that he could prepare his defense and it could not have misled him at the trial. It was also sufficient to prevent a retrial for the same offense. The indictment charged that the appellant was confined by state authorities and that element was proven at trial. For armed robbery he had been sent to the state penitentiary at Nashville, to Fort Pillow State Farm, and then to the Memphis Correctional Center, all parts of the penitentiary system and under the control of the Department of Corrections. We find no fatal variance and this assignment is without merit.

Burns had been transferred to the Memphis Correctional Center under a program which permitted selected prisoners to attend Shelby State Technical Institute and earn college credit. Inmates approved for the program are examined by a guard before leaving the center and are required to have a pass and a State Tech student card. They are required to report back to the center 30 minutes after their last class or library period. To reach State Tech, about three-fourths of a mile from the center, they walk down a road and cross an open field and have strict orders not to enter a “free vehicle” at any time. Except when walking directly to and from the institute, they are forbidden to be anywhere other than (1) class, (2) library, or (3) student center.

On March 9, 1978, the appellant left the center at 7:20 a. m. to attend classes with a schedule permitting him to attend classes and visit the library and be back in the center at 3:40 p. m. After attending two classes he signed into the library for study. At about 11:30 a. m. he left the library, called Ms. Bolton, a female ex-guard with whom he had become acquainted. She met him behind the library in her automobile and drove him to her home three to five miles away.

In the meantime officers had missed the appellant in the authorized places and at noon had set up a still watch at Ms. Bolton’s home. When she and the appellant came out of the house at about 2:00 p. m. and drove around the corner, the officers arrested both of them.

Burns testified that he had made a number of similar trips with the ex-guard, once to a hotel, and that he had always returned before his pass expired; that on this occasion he was on his way back to attend a class and return to the center.

The appellant insists that he was only “out of place” for which some administrative sanction could be imposed, but that this conduct does not amount to an escape.

In Chisom v. State, 539 S.W.2d 831 (Tenn.Cr.App.1976), we said:

“An escape has been described as a departure from lawful custody. In 30A C.J.S. Escape § 2, at 876, we find the following language:
“ ‘The crime of escape has been defined as the voluntary departure of a person without force from the lawful custody of an officer or from any place where he is lawfully confined, as the unlawful departure of a prisoner from the limits of his custody or his acts in regaining his liberty before released in due course of law. A prisoner who gains his liberty from lawful custody before he is delivered therefrom by due process of law commits the crime of escape.’
“In 3 Wharton’s Criminal Law and Procedure, sec. 1367, at 758 (1957), it is stated:
“*. . . An actual escape, that is, an escape in common meaning, takes place when a prisoner gets out of prison or any place in which he may be confined, or from and out of the authority in whose custody he is, and unlawfully regains his liberty, free from the authority and control of the power entitled to restrain him . . .’
“Black’s Law Dictionary 639-40 (4th ed. 1957), defines the word ‘Escape’ as:
“‘The departure or deliverance out of custody of a person who was lawfully imprisoned, before he is entitled to his liberty by the process of law.’ ”

The training program merely extended the limits of the appellant’s confinement to the State Tech campus and, although unguarded, he remained in the constructive custody of the center. Lacey v. State, 506 S.W.2d 809 (1974); Laird v. State, 565 S.W.2d 38 (Tenn.Cr.App.1978).

When the appellant departed from lawful custody, he committed an escape, punishable under TCA 39-3802, regardless of his intent to return. His willful abscondment from restraint and custody constitutes an escape. The jury had ample evidence to find him guilty of escape.

Nor do we find merit in the contention that the appellant was selectively prosecuted. The warden considered this an aggravated case, more serious than that of those receiving lesser punishment. The appellant suggests that the prosecution perhaps was instigated because of his relationship with a female ex-guard from the Correctional Center. If true, this would not amount to a constitutional claim of selective prosecution because the state may legitimately act to discourage such relationships between prisoners and prison guards. The trial judge properly found no violation of his constitutional rights.

Affirmed.

DWYER and DAUGHTREY, JJ., concur.


text:
    James Paul MARTIN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 20, 1979.
    Certiorari Denied by Supreme Court Aug. 6, 1979.

      William B. Bruce, Nashville, for appellant.
    William M. Leech, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., David Raybin, Asst. Dist. Atty. Gen., Nashville, for appel-lee.
   OPINION

DUNCAN, Judge.

The appellant-defendant, James Paul Martin, was convicted in the Davidson County Criminal Court of incest and was sentenced to the penitentiary for not less than 10 years nor more than 21 years.

The defendant assigns several errors relating to the admission into evidence of the testimony of certain witnesses, and also alleges that he should have been allowed to question witnesses about the victim’s use of marihuana. We find no merit to the assignments and the judgment is affirmed.

The State’s evidence, as accredited by the verdict of the jury, established that the defendant commenced a pattern of sexual acts towards his stepdaughter, the victim herein, when she was 11 years of age. These acts consisted of touching and fondling the child and progressed to taking showers with her. At the age of 13, she was forced by the defendant to have sexual intercourse with him. Other acts of intercourse followed, and at the age of 15, the victim became pregnant and gave birth to a child on June 20, 1975. When told by the victim that she was pregnant, the defendant said, “Then, I’m the father.” Statements by the defendant in the presence of the victim and her mother also indicated an acknowledgment that he was the father of the child.

After the birth of the child, the victim continued to live in the home with the defendant and the rest of the family. According to the victim’s testimony, the defendant again had forcible sexual intercourse with her on August 6, 1977, and August 12,1977, the State electing to prosecute on the August 6th occurrence.

The defendant’s wife testified that on the August 6th date, she awoke during the night and discovered the defendant, dressed in his underclothing, lying asleep on and at the foot of the victim’s bed.

Other witnesses corroborated the victim’s testimony about the defendant taking showers with her.

The victim testified that on one occasion in the summer of 1974, her stepsister was visiting her, and that after they went to bed the defendant took her (the victim) out of bed into the bathroom and raped her. The stepsister testified that on this occasion, the defendant entered the room, gave her (the stepsister) more than a friendly kiss, and ■when she protested he left, but later returned and took the victim out of the room.

There was testimony by a gynecologist that after the first act of sexual intercourse occurred, he examined the victim and discovered her hymenal ring was not intact and found other symptoms consistent with her testimony.

The defendant testified and denied that he had ever had sexual intercourse with the victim. Further, he denied ever fondling her or taking showers with her.

The defendant insists that it was error to allow into evidence the testimony of his wife because the acts she observed and statements made by him to her about those acts arose out of the marital relationship and were thus privileged. He relies upon the doctrine expressed in Norman v. State, 127 Tenn. 340, 155 S.W. 135 (1913), that the sanctity of the home is more important to society than is conviction of crime by the use of a spouse’s testimony. However, Tennessee recognizes that the marital privilege rule does not attach where the charge involves crimes of violence committed by one spouse upon the other spouse or crimes of violence committed upon the children of the relationship or of either spouse. Adams v. State, 563 S.W.2d 804 (Tenn.Cr.App.1978).

In Adams v. State, supra, the court said: We believe that “marital communications,” whether by conduct or by verbal statement, which arise from an act of violence by a spouse committed against the child[ren] of either spouse should constitute an exception to the marital privilege, because such “communications” fail to satisfy the conditions underlying the creation of the privilege. To the extent that confidentiality concerning such violence would foster a stronger relationship between spouses, it would clearly be a relationship in direct opposition to the rational norms and the goals of a family-oriented society. The benefit to be gained by society from the public exposure of the mistreatment of children far outweighs any injury that could be caused to the marital relationship by disclosure of the communications, (emphasis added). 563 S.W.2d at 809.

Obviously, the defendant’s conduct towards the victim in this case concerned acts of violence, and we hold that the wife’s testimony was properly admitted into evidence by the court. Additionally, we would add that a substantial part of the wife's testimony in the present case concerned matters she observed outside the marital relationship, and some of the statements made by the defendant to her to which she testified were made in the presence of the victim. Our cases have recognized that the privilege does not extend to acts which a spouse observes without the other’s knowledge, Burton v. State, 501 S.W.2d 814 (Tenn.Cr.App.1973), nor does it apply when the conversations and communications between the husband and wife have taken place in the presence of third persons, Hazlett v. Bryant, 192 Tenn. 251, 241 S.W.2d 121 (1951).

We find that the marital privilege rule was not violated in this case.

Another complaint by the defendant is that the trial court erred in declaring the defendant’s wife to be a hostile witness.

At the inception of the prosecution of this case, the defendant’s wife gave a written statement to the police which contained devastating, incriminating . allegations against him. Among the more salient of these are the following:

. “she and Jim admitted he was the father.”
. “I hadn’t known Jim was still having relations with Kathy since Vickey was born until August 6, 1977 during the night . . . ”
. “When I came out, he was lying in the bed with Kathy.” [August 6,1977]

Prior to the commencement of the trial, the wife informed the district attorney general she wished to change her statement in 3 places. At the trial she made 15 additional changes in her statement, including a denial of the first two statements set out above and a modification of the last to show her husband was “lying on the foot of Kathy’s bed,” rather than “lying in the bed with Kathy.”

The defendant and his wife had separated after the initiation of the charges against him and she had filed a divorce action against him. However, prior to the trial of this case, they had reconciled and were living together as man and wife, a condition calculated to induce her to moderate her previous damaging statements.

The necessity to corroborate the testimony of the victim concerning the defendant’s sexual contact with her continued throughout the case and, particularly, at the time the wife testified, the necessity was critical.

When a party calls a witness who turns hostile, such party may impeach the witness, Montesi v. State, 220 Tenn. 354, 417 S.W.2d 554 (1967), if the witness is indispensable or takes the party by surprise. King v. State, 187 Tenn. 431, 215 S.W.2d 813 (1948). The hostility of the witness may be shown through questioning the witness or by other circumstances. Wilson v. Tranbarger, 218 Tenn. 208, 402 S.W.2d 449 (1965).

The evidence in this record is sufficient to show that by the wife’s actions and the circumstances of her reconciliation with her husband, she had become hostile to the State’s prosecution. Her testimony at that stage of the trial was crucial not only to corroborate her daughter’s testimony but also to show statements by the defendant indicating guilt, and to show acts consistent with his guilt in this matter. The trial judge did not err in holding the defendant’s wife to be a hostile witness.

We are not, however, satisfied with the procedure used in allowing the wife to change her statement or in allowing the entire statement to be submitted to the jury.

The editing and changing process was done in the presence of the jury. This was erroneous. The editing should have been done out of the jury’s presence and the entire statement should not have been submitted to the jury after the completion of her testimony. At the most, only those portions of the original statement which showed inconsistencies in her trial testimony should have gone to the jury. Those did of course as part of the entire statement. Other portions which were basically consistent with her testimony should not have been given to the jury. Those portions, however, were not significantly incriminatory and the error cannot be said to have affected the outcome of the trial in view of the overall evidence of guilt.

The defendant’s complaint that the trial judge refused to give a contemporaneous instruction on how to receive impeaching evidence when offered points up what is the best practice. However, the failure to do this is not fatal if the trial judge properly instructs the jury in his general charge on how such evidence is to be considered. See Edwards v. State, 540 S.W.2d 641 (Tenn.1976), cert. denied, 429 U.S. 1061, 97 S.Ct. 784, 50 L.Ed.2d 777 (1977).

The trial judge informed the jury in his general charge they could not consider the impeaching evidence of prior inconsistent statements as establishing the truth of the statement or as substantive evidence. This comports with the law on this subject. It is presumed that the jury, did not disregard the instructions of the court. Klaver v. State, 503 S.W.2d 946 (Tenn.Cr.App.1973).

We would add that aside from the testimony of the defendant’s wife, the other evidence in this record abundantly establishes the defendant’s guilt of this crime.

The defendant complains of the introduction of the testimony of a physician who. examined and treated the victim soon after the occurrence of the first act of sexual intercourse, and he complains also of the testimony of the victim’s stepsister. The defendant argues that the testimony of these witnesses showed other acts which were not charged in the indictment.

The physician examined the victim soon after the first sexual intercourse had taken place. The victim was 13 years of age at the time. The physician found her hymenal ring to be broken, the implication being, of course, that she had engaged in sexual intercourse. Additionally, he discovered vaginal bleeding and other indications of sexual contact.

The stepsister’s testimony concerned an episode that occurred when the defendant came into a bedroom where the stepsister was sleeping with the victim and made amorous advances toward the stepsister but was repulsed. He subsequently reentered the room and removed the victim therefrom, and as we have previously stated, the victim's testimony was that on this occasion the defendant had taken her into the bathroom and raped her.

In prosecutions of this nature, evidence of incestuous acts with the same person prior to the act relied upon in the indictment may be shown to illustrate the relation existing between the defendant and the victim. Sanderson v. State, 548 S.W.2d 337 (Tenn.Cr.App.1976).

The defendant further argues that the testimony of the stepsister was inadmissible because the acts toward her showed a separate and distinct offense against her and was not admissible under the rule as stated in Sanderson. If the act had been committed at a place separate and apart from the bed in which the victim lay, the defendant’s claim would have more strength. However, the acts are inseparable from the circumstances tending to show that they culminated in an incestuous episode with the victim immediately thereafter. Under these circumstances, this evidence was admissible.

Finally, we find no merit to the defendant’s contention that the trial judge erroneously disallowed testimony about the use of marihuana by the victim. There is no connection between the use or possession of marihuana and the veracity of a witness. Such use, even if established, would not have reflected on the victim’s truthfulness or untruthfulness. State v. Morgan, 541 S.W.2d 385 (Tenn.1976); Hatchett v. State, 552 S.W.2d 414 (Tenn.Cr.App.1977).

We overrule all of the defendant’s assignments of error and the judgment of the trial court is affirmed.

DAUGHTREY and TATUM, JJ., concur.