author: BROCK, Justice.

text:
    Frances Jeanette FRYE, Individually and as next friend for James William Reed, a minor, Appellants, v. Judge Joseph M. CROWELL and James Morris Reed, Appellees.
    Supreme Court of Tennessee.
    April 3, 1978.
    John R. Meldorf, Chattanooga, for appellants.
    Robert L. Shevin, Atty. Gen., Joe Belitz-ky, Asst. Atty. Gen., Tallahassee, Fla., Larry H. Hipsh, Sr., Pensacola, Fla., for appel-lees.
   OPINION

BROCK, Justice.

This suit, presenting an interstate dispute involving custody of the minor child of divorced parents, is brought under both the Civil Rights Act of 1866, 42 U.S.C. §§ 1983 et seq., and under “the laws of the State of Tennessee.” Plaintiffs, the mother and her minor child, seek to enjoin the defendants, Joseph M. Crowell, a judge of the Circuit Court of Escambia County, Florida, and James Morris Reed, the child’s father, from “harassing” them in violation of the laws. Plaintiffs also seek compensatory and punitive damages because of defendants’ alleged harassment. Upon defendants’ motions asserting lack of jurisdiction of the persons of defendants or of subject matter, the trial court dismissed the action. Plaintiffs have appealed the dismissal to this Court.

No evidence was introduced in the trial court and the matter was determined solely upon the complaint and motions to dismiss. In December of 1971 plaintiff Frye was granted a divorce from her husband, James Morris Reed, by the Circuit Court of Hamilton County, Tennessee, and custody of the couple’s minor child, James William Reed, was awarded to her.

Plaintiff Frye subsequently moved to California with her new husband and the child. In November of 1975 Judge Crowell entered an ex parte order awarding custody of the child to the father, finding, as a matter of fact, that the child had been neglected in California. The complaint alleges that Judge Crowell later explained in open court that

“. . . he had received a phone call from an individual identifying himself as a police officer in California who said that the child was abandoned there and that Welfare did not want to keep him and would he enter an order so that the father could come pick up the child because they did not know where the mother was.”

In December of 1975 Judge Crowell entered another order, again placing custody of the child with the father. The complaint alleges that both orders handed down by Judge Crowell were entered with malice toward the plaintiffs and “in clear and knowing violation of his jurisdiction.”

After entry of the second order giving custody of the child to the father, defendant Reed assumed custody of the child, taking him to Florida where he currently resides.

Subsequently, in February of 1976, Judge Crowell reversed his previous two orders placing custody of the Reed child with the father, concluding that the court lacked personal jurisdiction over both the mother and child. The complaint alleges that the father maintains custody of the child by virtue of a subsequent writ of habeas corpus. While the complaint sets forth no details regarding the habeas corpus petition, plaintiffs characterize it as invalid.

Plaintiff Frye and her new husband have apparently moved back to Tennessee where she has filed this suit seeking to permanently enjoin the defendants from harassing her and her son. Plaintiffs further seek compensatory damages of $250,000 each for pain and suffering, $500,000 each as punitive damages and their expenses and attorneys’ fees in defending against the actions of the defendants.

Both defendants, appearing specially, filed motions to dismiss due to lack of personal jurisdiction, lack of subject matter jurisdiction, arguing that Tennessee state courts cannot hear federal civil rights cases brought pursuant to 42 U.S.C. §§ 1983, et seq., and that defendant Crowell is protected by judicial immunity from suit, failure to state a claim upon which relief can be granted, improper venue and, in the case of defendant Reed, improper service of process.

The trial court sustained defendants’ motions generally and dismissed the suit. Because this case was heard and appealed prior to the 1977 amendment of T.C.A., § 16-408, appeal was taken to this Court.

The facts as presented in plaintiffs’ complaint poignantly illustrate the plight of the “interstate child” — an apt phrase coined by Professor Ehrenzweig and descriptive of the rootlessness of children shifted from state to state, victims of custody battles fought in the courts of more than one state. See Ehrenzweig, The Interstate Child and Uniform Legislation: A Plea for Extraliti-gious Proceedings, 64 Mich.L.Rev. 1 (1965).

This suit, however, does not seek to litigate again the question of the Reed child’s custody but is a suit to enjoin the judge and the child’s father from “harassing” the plaintiffs and to recover damages against the defendants.

Finding it unnecessary to consider any issue other than the question of personal jurisdiction over the defendants, we affirm the trial court’s dismissal of plaintiffs’ suit.

Plaintiffs insist that personal jurisdiction over these defendants is authorized by our “long-arm” statute, T.C.A., § 20-235:

“Persons who are nonresidents of Tennessee and residents of Tennessee who are outside the state and cannot be personally served with process within the state are subject to the jurisdiction of the courts of this state as to any action or claim for relief arising from:
# ⅜! # * * *
(b) Any tortious act or omission within this state;
jfe ⅜ ⅜ ,‡ ⅜

Citing Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374 (6th Cir. 1968), the plaintiffs argue that an act taking place outside the state of Tennessee but having effect within the state of Tennessee may serve as the basis for application of the long arm statute. Plaintiffs rely on two acts which they allege have had an effect in Tennessee sufficient to justify the reach of our long-arm statute: (1) the contravention of a valid Tennessee order of child custody and (2) the deprivation of the civil rights of two domiciliaries of the State of Tennessee.

We are of the opinion, however, that sufficient contacts relevant to the alleged cause of action do not exist between either of the defendants and the State of Tennessee to justify “long arm” jurisdiction over their persons. As the court stated in Mohasco, supra, at 381:

“[Tjhree criteria emerge for determining the present outerlimits of in personam jurisdiction based ón a single act. First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.”

See also Hanson v. Denckla, 357 U.S. 235, 251, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). The facts alleged do not meet this test.

In our opinion, exercise of personal jurisdiction over these defendants would offend “traditional notions of fair play and substantial justice,” International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). We, therefore, affirm the trial court’s dismissal of this suit.

Costs are taxed against appellants.

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


source: Caselaw Access Project

license: Public Domain

text:
    Roger C. HARVEY, Appellant, v. RHEA COUNTY BEER BOARD, Appellee.
    Supreme Court of Tennessee.
    April 3, 1978.

      Gary N. Fritts, Dayton, for appellant.
    James W. McKenzie, Dayton, for appel-lee.
   OPINION

BROCK, Justice.

Appellant’s application for a permit to sell beer in a proposed package store adjacent to his grocery-service station on U.S. Highway 27 in Rhea County was denied by the county beer board. Upon petition for certiorari to review the Board’s action, appellant was granted a de novo hearing pursuant to T.C.A., § 57-209. The trial judge upheld the Board’s denial of the permit based upon T.C.A., § 57-205, finding that (1) the proposed package store would cause a traffic hazard and (2) the store would interfere with the public health, safety and morals of the community because of its proximity, 2250 feet, to a high school. Appellant’s motion for a new trial was denied and this appeal granted.

Several conditions and provisions are required by T.C.A., § 57-205, to be met in order for an appellant to be entitled to a beer permit. It is not disputed that the applicant has met all the conditions and provisions of this statute except the following provision:

“Third, that no such beverages will be sold except at places where such sale will not cause congestion of traffic or interference with schools, churches, or other places of public gathering, or otherwise interfere with public health, safety and morals . . . .” T.C.A., § 57-205.

The technical record of this case includes a petition signed by several residents of the community protesting the proposed package store, expressing opposition to making the purchase of beer more convenient for students of the high school who are accustomed to stopping at the applicant’s grocery, and also expressing their opinion as church members that the proposed package store would be detrimental to the welfare of the community.

At the hearing before the circuit judge the applicant, Mr. Roger Harvey, testified that he owned and operated R&L Grocery which is located on a straight stretch of Highway 27, 1½ miles north of Evensville and 2250 feet from the Rhea County consolidated high school. Mr. Harvey testified that his was a large business, selling gasoline and petroleum products as well as a general line of groceries to young and old alike, and that high school students frequently stopped at his store. He further testified that he proposed to sell beer on a carry-out basis from a building adjacent to R&L Grocery, currently being used as a storage building for oil and petroleum products. The location proposed for the package store was 40-45 feet from the right of way of Highway 27. A survey revealed that a rise in the highway, north of the proposed location, was' 750 feet distant. Mr. Harvey testified that only one traffic accident had taken place at the location of the store, involving the collision of two automobiles on Highway 27 and the resulting deflection of one of the automobiles into a vehicle purchasing gasoline at his store.

Two ministers of local churches testified that, in their opinion, the proposed package store would adversely affect the morals of the community. Rev. David Jordan testified that his daughter had occasionally stopped at the R&L Grocery on her way to and from school. Rev. David Smith testified at his concern that the package store would make beer more convenient to students who frequented the R&L Grocery but he was unable to name any student who, to his knowledge, patronized the grocery.

Mr. Bob Dyer, owner of the Furniture Barn located on Highway 27, testified that he believed the R&L Grocery was located in a dangerous place and was a safety hazard “in that it was located on Highway 27 in the location it was located.”

The secretary of the county beer board, Mr. Thomas Taylor, testified that because some high school students were 18 years of age and, thus, were legally entitled to buy beer, public concern had focused on the likelihood or possibility that those students legally entitled to buy beer would share their purchases with students under eighteen.

Based upon this testimony, the trial judge found that the grant of a permit to sell beer at the package store proposed by Mr. Harvey violated T.C.A., § 57-205, in that the store would cause traffic congestion and would interfere with the public health, safety and morals because of its proximity to the high school.

Judgments granting or denying beer permits are accompanied by a presumption of correctness on appeal and, therefore, may not be overturned in the absence of a preponderance of evidence to the contrary. Coffman v. Hammer, Tenn., 548 S.W.2d 310 (1977); Lones v. Blount County Beer Board, Tenn., 538 S.W.2d 386 (Tenn.1976); T.C.A., § 57-209.

After careful consideration, we have concluded that the evidence preponderates against the trial court’s decision. See City of Memphis, Etc. v. Randall Mem., Etc., Tenn., 550 S.W.2d 657 (1977).

Appellant complied with all the mandatory provisions of T.C.A., § 57-205. There is no dispute in the record that appellant is a person of good moral character. Nor is there evidence that the proposed package store “will cause congestion of traffic or create any other condition not already in existence.” Lones v. Blount County Beer Board, supra at 390. The testimony relied upon by the trial court consisted primarily of the expression of fears, speculations and apprehensions of witnesses who appear to have a fixed opinion that the sale of beer is harmful and immoral per se. Such expressions are not material in a case of this kind. Ewin v. Richardson, 217 Tenn. 534, 399 S.W.2d 318 (1966). No factual evidence was presented as to “how or why the particular permit requested would interfere with public health, safety and morals.” Id. 217 Tenn. 534, 399 S.W.2d at 320.

As we noted in Howard v. Willocks, Tenn., 525 S.W.2d 132, 135-36 (1975), the 1967 amendment to T.C.A., § 57-205, mandated that an applicant for a beer permit, who complies with all the legal requirements, shall be entitled to have such license or permit issued to him. Because this applicant has complied with all of the conditions and provisions of T.C.A., § 57-205, and no particularized harm to the public health, safety or morals has been demonstrated, we reverse the judgment of the trial court and remand this cause to the Circuit Court of Rhea County for the entry of an order directing the Rhea County Beer Board to issue a permit to appellant permitting the sale of beer at appellant’s proposed package store. Costs will be paid by the appellee.

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


author: BYERS, Judge.

text:
    Harvey ARNOLD, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 15, 1977.
    Certiorari Denied by Supreme Court Mar. 20, 1978.

      Tom P. Jennings, Tullahoma, Horace E. Johns, Jr., Nashville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. State Atty. Gen., Nashville, C. Michael Layne, Asst. Dist. Atty. Gen., Manchester, for appellee.
   OPINION

BYERS, Judge.

The Appellant was convicted of concealing stolen property and sentenced to serve not less than three (3) years nor more than five (5) years in the penitentiary.

On August 1, 1975, Donald D. Riddle left his 1971 Chevrolet truck at a job site in Nashville where he was working. When he returned on August 4, 1975, the truck was missing. Also, on August 1, 1975, Andrew R. Craddock left his blue Ford truck on a parking lot near a tavern in Nashville. When Craddock left the tavern to go home, his truck was missing. In the early morning hours of August 2, 1975, the Appellant and his wife appeared at the home of Jerry Arnold, the Appellant’s son. They were driving the Ford and Chevrolet vehicles. Jerry Arnold assisted his father in dismantling the Chevrolet. Subsequently, the Sheriff of Coffee County located the two trucks in the woods back of Jerry Arnold’s home and found the motor to the Chevrolet truck at a business known as Chuck’s 66 Station.

The Appellant attacks the sufficiency of the evidence, the failure of the trial judge to dismiss the charges against him because there had been three previous mistrials pri- or to the fourth trial which resulted in a conviction, the introduction of evidence concerning the Ford truck, and the admission of a prior conviction in Federal Court of the Appellant for interstate transportation of a stolen vehicle.

The judgment is affirmed.

The Appellant’s attack upon the evidence is couched in the nature of a complaint that the trial judge did not direct a verdict of acquittal at the close of the evidence. The Appellant made no motion to dismiss the charges and could not rely on this as a basis for a reversal of the judgment. State v. Thompson, 549 S.W.2d 943 (Tenn.1977). Beyond this, the evidence clearly supports the verdict of the jury and the Appellant has failed to show otherwise. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

Three previous mistrials in this case is the basis for the Appellant’s claim that the charges should have been dismissed prior to the fourth and convicting trial.

The record indicates that the first trial ended in a mistrial because of an improper remark between a juror and a witness. The second and third trials ended in mistrials because the juries were unable to reach a verdict.

The general rule is that a jury may be discharged and a mistrial declared if there is a manifest necessity requiring such action by the trial judge. If it appears that some matter has occurred which would prevent an impartial verdict from being reached, a mistrial may be declared and a claim of double jeopardy would not prevail on a subsequent trial. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). The impossibility of a jury reaching a verdict has long been recognized as a sufficient reason for declaring a mistrial. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949); Jones v. State, 218 Tenn. 378, 403 S.W.2d 750 (1966); State v. Malouf, 199 Tenn. 496, 287 S.W.2d 79 (1956).

The rule that a mistrial will be declared because the jury is unable to reach a verdict is not, however, unlimited in its application. In the early case of United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), the Supreme Court recognized the manifest necessity doctrine in the declaration of mistrials as not barring subsequent prosecutions. The Perez Court, however, admonished that the power should be used with great caution and for plain and obvious causes.

The rule is that a subsequent trial may be held where the public interest in a fair trial outweighs the right of the accused to have an end to the litigation. Wade v. Hunter, supra.

We are unable to find any authority that holds an accused may be discharged merely on the basis of a numerical mistrial formula. However, in the case of Preston v. Blackledge, 332 F.Supp. 681 (E.D.N.C.1971), the Court, in reviewing the history of the decisions on this issue, found that a fifth trial after four previous trials had ended in mistrials was prohibited. However, the absence of the accused’s witnesses at the fifth trial appeared to be a significant factor in the case.

The issue of whether a trial shall be allowed must be decided on the circumstances of each case within the discretion of the trial judge, who must weigh the rights of the public to a fair and complete adjudication against the constitutional right of the accused to not be harassed, oppressed by successive trials or otherwise denied the protection of his constitutional rights. Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961). The exercise of this discretion is, of course, open to review by the Appellate Courts and, as said in Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), the case is reviewed on the basis that “we resolve any doubts in favor of liberty of the citizen.”

In this ease, the trial judge, in exercising his discretion, allowed a fourth trial. Judged by the manifest necessity doctrine as opposed to the rights of the accused, we find nothing in the record to indicate that his ruling was erroneous.

The trial judge properly allowed the evidence concerning the Ford truck stolen from Andrew Craddock to be considered by the jury. Although the indictment only alleged the concealing of the Riddle vehicle, both vehicles were concealed by the Appellant simultaneously. In addition to being admissible under the doctrine of a common scheme or plan, Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963), this was admissible as part of the res gestae. Ellison v. State, 549 S.W.2d 691 (Tenn.Cr.App.1976); Coffman v. State, 3 Tenn.Cr.App. 634, 466 S.W.2d 241 (1970).

Finally, the trial judge properly allowed the State to show that the Appellant had been convicted of interstate transportation of a stolen vehicle in Federal Court. This offense is a felony punishable by not more than five (5) years. 18 U.S.C. § 2312. In addition, this offense involves dishonest conduct — stealing—and may be used to test the credibility of a testifying accused. The trial judge properly instructed the jury on how to receive and weigh this evidence. All the requirements of State v. Morgan, 541 S.W.2d 385 (Tenn.1976) were met.

The judgment of the trial court is affirmed.

DUNCAN and TATUM, JJ., concur.


author: TATUM, Judge.

text:
    Charles R. EVERHART, alias, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 10, 1978.
    Certiorari Denied by Supreme Court April 10, 1978.

      Robert L. Tucker, Robert L. DeLaney, Martha Meares, Richard McGee, University of Tennessee Legal Clinic, Knoxville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Patricia J. Cottrell, Asst. Atty. Gen., William Raikes, Research Asst., Nashville, Ronald A. Webster, Dist. Atty. Gen., William H. Crab-tree, Asst. Dist. Atty., Knoxville, for appel-lee.
   OPINION

TATUM, Judge.

The defendant appeals from a judgment rendered by the Criminal Court of Knox County declaring him to be an habitual offender under the Motor Vehicle Habitual Offenders Act. (T.C.A. §§ 59-1201 — 59-2117). Defendant was precluded from operating a motor vehicle on the highways of this state and ordered to surrender his motor vehicle operator’s license. (T.C.A. § 59-2113)

At the hearing afforded the defendant, he conceded that he was convicted on three occasions for driving while intoxicated during a three-year period and that the offenses for which he was convicted were committed after April 5, 1974. His defense was that one or more of these convictions were void because he was not afforded counsel to represent him in the trial of the cases resulting in these convictions. The records evidencing the convictions reflected that the defendant had waived counsel for the trial of the driving while intoxicated cases. In the case sub judice, the Trial Judge refused to permit the defendant’s testimony contradicting the judgments by stating that his waiver of counsel was not made understandingly and voluntarily.

In his assignments of error, the defendant urges that the Trial Judge erred in characterizing the proceeding as being civil in nature and in not admitting evidence attacking the validity of the prior convictions. These assignments are without merit.

In support of his contention that proceedings under the Motor Vehicle Habitual Offenders Act are criminal in nature rather than civil, the defendant argues that since the Act expressly bestows trial jurisdiction upon the criminal courts and appellate jurisdiction upon this court, this evinces a legislative intent that proceedings under the act are criminal in nature. We do not agree. The criminal courts and this court already had jurisdiction of criminal cases. The effect of these provisions in the Motor Vehicle Habitual Offenders Act was to bestow upon the criminal courts and this court additional civil jurisdiction that these courts would not have otherwise enjoyed.

The general scheme of the Motor Vehicle Habitual Offenders Act creates a proceeding to revoke the driving privileges of persons who have repeatedly violated designated State statutes or City ordinances. The purpose of the Act is to promote public safety. (T.C.A. § 59-2102). The Act does not declare either a fine or imprisonment for being an habitual offender. The only penal provision in the Act is T.C.A. § 59-2116 for driving in violation of a court order after a hearing and judgment. The defendant is not charged with the violation of the criminal statute.

The controlling principles are enunciated by the Supreme Court in Sullins v. Butler et al., 175 Tenn. 468, 135 S.W.2d 930 (1940). In determining the constitutionality of Chapter 90, Public Acts of 1937, as amended by Chapter 205, Public Acts of 1939, familiarly known as the Financial Responsibility Law, the Tennessee Supreme Court held:

“Counsel for petitioner has misinterpreted the act. It contains no provision authorizing imprisonment for failure to pay a judgment founded upon the negligent operation of an automobile. Should petitioner never pay the $162 judgment entered against him, he could at no time be imprisoned for such failure. The punishment prescribed in the act is for operating an automobile after the operator’s driver’s license has been revoked.
The driving of an automobile is a privilege, not.a property right, and is subject to reasonable regulation under the police power in the interest of the public safety and welfare.”
* * * * * *
“ The general rule covering the subject is stated in 5 Am.Jur. 593, as follows:
§ 157. ‘The statutes regulating the granting of operators’ licenses or drivers’ permits usually provide for their revocation. It is competent for the legislature to prescribe the conditions under which the privilege of operating an automobile on the public highways may be exercised. The fact that the license or permit was granted under a statute or ordinance which stated that it should be perpetual unless revoked as provided in such statute or ordinance, and which contained no provision for revocation, does not preclude revocation under a provision introduced by subsequent amendment.
‘A license to operate an automobile is not property, but a mere privilege, the suspension of which does not deprive the licensee of his property without due process of law. The licenses or permits may not be revoked arbitrarily.
‘The authority to revoke cannot be delegated to an official without prescribing what shall constitute grounds for revocation.’ ”

Also see Goats v. State, 211 Tenn. 249, 364 S.W.2d 889 (1963).

The Trial Judge properly characterized the proceeding in which the driving privilege of the defendant was revoked as civil in nature and not criminal. The purpose of the Act is to promote public safety on the highways. By revoking the driving privilege of the defendant, he is not subjected to punishment for either a felony or misdemeanor. He is not even deprived of a property right; he is only deprived of a privilege. Other states, having similar acts, have uniformly held proceedings to revoke or suspend driving privileges to be civil in nature and not criminal. See, State v. Bowles, 113 N.H. 571, 311 A.2d 300 (1973); State v. Carlisle, 285 N.C. 229, 204 S.E.2d 15 (1974); Huffman v. Commonwealth, 210 Va. 530, 172 S.E.2d 788 (1970). We hold the proceedings to revoke or suspend driving privileges are civil in nature and not criminal.

In his second assignment of error, the defendant complains of the refusal of the Trial Judge to permit him to attack the validity of the judgments by showing that his waiver of counsel was made involuntarily and unintelligently. The judgments were facially sufficient, showing a waiver of counsel. The defendant does not characterize his purported attack upon the validity of these judgments as collateral attacks but terms them as “direct attacks.” The setting aside of the convictions of the General Sessions Court is a necessary, but only incidental, objective of the suit. As such, this is a collateral rather than a direct attack upon the convictions. Turner v. Bell, 198 Tenn. 232, 279 S.W.2d 71 (1955).

The general rule is that a conviction on which a suspension or revocation of a driver’s license is based cannot ordinarily be attacked collaterally in a proceeding relating to a suspension or revocation. See, 60 C.J.S. Motor Vehicles § 164.10. The Court of Appeals of Arizona, In Application of Hathcock, 9 Ariz.App. 178, 450 P.2d 419 (1969), said:

“The purpose of this judicial proceeding is manifest. It is to avoid the revocation of an operator’s license to drive a motor vehicle in this state. The setting aside of the conviction in the justice court is a necessary, but only incidental, objective of the suit. As such, this is clearly a ‘collateral’ rather than a ‘direct’ attack upon the judgment of conviction, (citations omitted). In Schuster [Schuster v. Schuster 51 Ariz. 1, 73 P.2d 1345 (1937)], our Supreme Court said:
‘If the attack be collateral in its nature, an attack may not be made even on the ground of fraud; the only question being whether it is void upon its face.’ (Citations omitted.)
The petitioner’s proof clearly falls short of showing that this conviction was ‘ * * * void upon its face.’ No attempt was made to bring before the superior court the criminal docket of the justice court. The certificate of conviction appears to be without irregularity. It shows a plea of guilty on the part of the petitioner, a court finding of guilty as to a criminal charge within the jurisdictional limits of the justice court, and within the limits of penalty prescribed for the crime as to which the petitioner is certified to have been convicted." 450 P.2d 419, at 421-422.

The Texas Court of Appeals in Tomlinson v. Texas Department of Public Safety, 429 S.W.2d 590 (Tex.Civ.App.1968) first determined that cases involving criminal punishment or enhancement of criminal punishment were not applicable in those cases merely involving a defendant’s driving privileges. The Court then adopted the following language:

“Although the record supporting a judgment may carry the seeds of infirmity that prove fatal to the judgment when exposed upon a direct attack or in a habe-as corpus proceeding, it cannot be said that any and all persons may ignore the judgment before it is pronounced invalid or void by proper authority. In this case, the County Judge was not considering a direct attack or conducting a habeas corpus hearing and was no more authorized to ignore the judgments of convictions than would a prison warden be justified in discharging a prisoner before the judgment convicting such prisoner had been declared invalid by a court of competent jurisdiction. There are proper methods and competent tribunals to accomplish the destruction of judgments, but a collateral attack in a proceeding such as this is not one of them.” 429 S.W.2d 590, at 594.

For other holdings of like import, see Cook v. Department of Motor Vehicles, 33 Cal.App.3d 265,109 Cal.Rptr. 104 (1973); Texas Department of Public Safety v. Casselman, 417 S.W.2d 146 (Tex.1967); Director of Department of Public Safety v. Moore, 54 Ala.App. 351, 308 So.2d 711 (1975); Ritch v. Director of Vehicles and Traffic of District of Columbia, 124 A.2d 301 (D.C.Mun.App.1956).

The proper procedure for testing the validity of a facially valid conviction is by a separate proceeding for that purpose under the Post-Conviction Relief Act (T.C.A. §§ 40-3801 et seq.). This court has held that the Post-Conviction Relief Act is available for that purpose even when a petitioner’s sentence has been served and he is not on parole. Holt v. State, 489 S.W.2d 845, 847 (Tenn.Cr.App.1972); Daugherty v. State, 4 Tenn.Cr.App. 355, 470 S.W.2d 865 (1971).

We hold that the Trial Judge was correct in not permitting the collateral attack on the prior convictions.

T.C.A. § 59-2103 defining an habitual offender, provides that certain convictions of violations of City Ordinances in city and municipal courts are embraced under the definition “Habitual Offenders.” The same section defines a conviction as including a forfeiture of bail, which forfeiture has not been vacated. We do not imply that these forfeitures and municipal ordinance convictions are invalid if the defendant is not represented by an attorney. As stated, a proceeding under the Act is civil in nature. A defendant is not entitled to the constitutional safeguards in a civil case that he has a right to in a criminal case.

The defendant relies upon the United States Supreme Court cases of Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) in support of his contention that the Trial Judge erred in not permitting him to make a collateral attack on the validity of the prior convictions. These cases are not applicable. Burgett is a criminal case involving facially void judgments. Loper v. Beto, supra, is a habeas corpus proceeding equivalent to a proceeding under the Tennessee Post-Conviction Relief Act.

The judgment of the Criminal Court is affirmed.


author: BYERS, Judge. TATUM, Judge,

text:
    Floyd SESSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 24, 1978.
    Certiorari Denied by Supreme Court March 20, 1978.

      Hughie Ragan, Jackson, for appellant.
    Brooks McLemore, Jr., State Atty. Gen., Richard S. Maxwell, Asst. Atty. Gen., Nashville, James G. Woodall, Asst. Dist. Atty. Gen., Jackson, for appellee.
   OPINION

BYERS, Judge.

The Appellant was convicted of manufacturing or attempting to manufacture whiskey and sentenced to serve ninety (90) days in jail and to pay a fine of two hundred and fifty dollars ($250.00).

Some days prior to October 31, 1976, State and Federal Alcohol Commission Agents received information that a still was in operation in a wooded area of Madison County. The agents went into the woods where the still was reported to be and found its location. The agents placed the area under surveillance and on October 31, 1976, they observed the Appellant come to the site on three occasions. On each of these visits, the Appellant was engaged in activity clearly indicating he was making whiskey. The Appellant was arrested at the still site. A still with all the necessary accoutrements was in existence, and the ingredients for making what is known as corn liquor were in the process of reaching that goal.

The Appellant says he was denied a speedy public trial with proper assistance of counsel, that the agents illegally searched when they entered the woodlands without a search warrant, the evidence preponderates against the verdict, the court’s instruction to the jury on the provisions of T.C.A. § 39-2525 was erroneous, that the trial court erroneously instructed the jury on the applicable punishment, and the trial court erred during the voir dire of the jury by requiring him to proceed before the State in questioning two prospective jurors called to replace two whom he had excused.

The judgment of the trial court is affirmed.

The Appellant rests his claim of a denial of a speedy and public trial and lack of proper representation by counsel upon the proposition that there were inadequate seating facilities in the courtroom where he was tried. He contends that only nineteen (19) seats were in the courtroom which could be used for spectators, prospective jurors, or other persons. He reasons, therefore, that this lack of seats would discourage or prohibit members of the community, not involved as jurors, etc., from observing the trial which would result in a private rather than public trial. He further reasons that, because of the lack of seating, his attorneys were required to stand while awaiting their participation in his trial and they were fatigued to a point where he was not properly represented, and that prospective jurors were also required to stand and thus became fatigued.

We agree with the Appellant’s contention that all courtrooms should be adequately appointed in order that people who are required to attend and conduct the business of the courts be able to do so with a reasonable degree of comfort. Certainly, the facilities should be sufficiently appropriate to avoid fatigue of the participants to a degree which would affect the quality of the judicial process. However, in this case, the claim by the Appellant is hypothetical rather than substantive.

There is nothing in the record to show that the jury was exhausted because of the lack of seats for spectators or prospective jurors. Likewise, there is nothing to show that counsel for the Appellant was so fatigued as to be unable to properly conduct the defense. There is nothing in the record to indicate that the public was seeking and being denied access to the courtroom to observe the trial.

We overrule this assignment of error but do not approve of an inadequately furnished courtroom which appeared to be the situation at the time of this trial.

The Appellant’s complaint concerning the search of the woodlands wherein the still was found is based upon State v. Wert, 550 5.W.2d 1, decided by this Court on January 6, 1977.

In Wert, this Court held that an entry by officers upon a fifty (50) acre farm owned by the accused which was fenced, with the exception of some four hundred feet (400'), was an unlawful search. In Wert, this Court did not apply Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), from which arose the “open fields doctrine” which allows searches of open acreage or fields not within the manor house or curtilage.

The facts in this case are significantly different from the facts in Wert. In Wert, there was no dispute that the accused owned and was in possession of the property searched. Additionally, there was evidence that no trespassing signs were present in the area of the entry onto the property which indicated an expectation of privacy by the owner or possessor of the property. In the case, sub judice, the trial judge conducted a jury out hearing on the motion to suppress the evidence obtained by the search. There is no evidence that the Appellant, although present on the property where he was arrested, was the owner of the property or in lawful possession thereof. The still was located in a wooded area two hundred (200) yards from a house apparently owned by his mother and with whom he lived. There is no evidence to show whether the wooded area was a part of the parcel of land on which the house stood or whether it was on property owned by some other person. Under these facts, the still could have been erected on property owned by an absentee owner or by an owner who never visited this area of his property. There was only speculation by the officers that “no trespassing” signs might have been posted on some other part of the property along the length of the road on which the property searched was located. The evidence indicates that none were present where the agents entered the property in question. In refusing to apply the “open fields doctrine” in Wert, this Court held that the expectation of privacy indicated by the accused brought the case within the expectation of privacy doctrine. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Wert held that if an expectation of privacy is shown by the owner or possessor of the open fields then Hester v. United States, supra, did not apply. In this case, the absence of any showing of ownership or lawful possession by the Appellant and the absence of any showing of an expectation of privacy prevents the Appellant from being within the ambit of the Wert decision. He stands, therefore, within the Hester “open fields doctrine” and the application of that doctrine to the facts of this case shows no violation of his constitutional rights against an unlawful search.

The Appellant’s claim that the evidence does not support the verdict is misplaced. He contends that because the jury’s verdict did not specify whether they found him guilty of manufacturing or attempting to manufacture whiskey, but only found him guilty, that the verdict is void. The indictment in this case was based upon T.C.A. § 39-2521 which prohibits making or attempting to make intoxicating whiskey. This statute creates one offense which may be committed either way. It does not create separate and distinct offenses. He was charged with only one offense. The general verdict of the jury applies to the only offense for which he was charged and is valid. See Pope v. State, 528 S.W.2d 54 (Tenn.Cr.App.1975).

The Appellant further says this evidence does not exclude the likelihood that the alcohol was less than 188 proof which would bring him under the exceptions of manufacturing for chemical, pharmaceutical, medical, and bacteriological purposes. The claim is not maintainable because there is no evidence to show that the Appellant was making whiskey of less than 188 proof for the purposes which would bring him within the exception of T.C.A. § 39-2521. A person claiming to be within the exception of a penal statute must show that he is entitled to claim the exception. Villines v. State, 96 Tenn. 141, 33 S.W. 922 (1896); Vance v. State, Tenn.Cr.App., 557 S.W.2d 750, filed at Jackson, June 30, 1977, cert. denied November 14, 1977.

The Appellant further claims that there is no evidence that what he was manufacturing was whiskey. However, the evidence shows without dispute that he had assembled an apparatus capable of making “corn liquor or white lightning,” that he had present at and in the apparatus the ingredients to make it, and that he was present at the still taking steps to continue processing the ingredients through the apparatus. There could be no other logical conclusion than that he was manufacturing or attempting to manufacture whiskey. Hail v. State, 151 Tenn. 416, 270 S.W. 84 (1925).

The Appellant is further frustrated in this claim by T.C.A. § 39-2523 and T.C.A. § 39-2525 which raise a presumption of a violation of T.C.A. § 39-2521 by the possession of, or assembly of, any still or apparatus suitable for the purpose of making whiskey.

The Appellant has failed to demonstrate that the evidence preponderates against the verdict of the jury. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

The Appellant complains that the court erroneously charged the jury as follows:

“When a person is found in possession or control of any still or apparatus, or part thereof, such possession or control shall be deemed prima facie evidence in a prosecution under section 39-2521 that such possession or control was for the purpose of manufacturing intoxicating liquor as prohibited by such law.”

The Appellant contends that the charge was erroneous because it did not explain to the jury what was meant by the words “prima facie,” that it did not specify that the charge was not applicable to the manufacturing of beer or that it was to be considered only with the charge under T.C.A. § 39-2521 and that the jury might be influenced by the charge. We see no merit in this complaint. The only offense on which the Appellant was charged was a violation of T.C.A. § 39-2521. The charge specifically pointed out to the jury that the presumption raised by the possession of the apparatus was applicable to prosecutions under this statute. This charge comes from T.C.A. § 39-2525 which is applicable to prosecutions under T.C.A. § 39-2521.

T.C.A. § 39-2521, contrary to the Appellant’s contention, is a valid statute under which this prosecution was held. The Appellant says that T.C.A. § 57-101 through T.C.A. § 57-168, which allows for the manufacturing of whiskey under the terms of those statutes, have repealed T.C.A. § 39-2521. These statutes are local option statutes and do not repeal T.C.A. § 39-2521 and § 39-2522 unless they have been adopted by vote in the county in which a prosecution is proceeding. Clark v. State ex rel. Bobo, 172 Tenn. 429, 113 S.W.2d 374 (1938). This record does not show that Madison County has voted for the manufae-taring of whiskey under the local option law.

The burden was upon the Appellant to show the applicability of this exception to the general law if he is to claim the protection thereof. He did not do so.

In the selection of the jury, the Appellant excused two prospective jurors. He was then required by the trial judge to pass first upon the two prospective jurors called to replace them. The Appellant says this was error.

The Appellant did not raise this issue in his motion for a new trial. He raises it the first time on appeal. He may not, however, raise the issue in this manner. His failure to raise the issue in his motion for a new trial precludes us from considering it on appeal. Kirby v. State, 214 Tenn. 296, 379 S.W.2d 780 (1964). We see, however, no prejudice to him by the method used to select the jury.

O’BRIEN and TATUM, JJ., concur.

TATUM, Judge,

concurring.

I agree that State v. Wert, 550 S.W.2d 1 (Tenn.Cr.App.1977) is not applicable. However, I would point out that though the Tennessee Supreme Court denied certiorari in State v. Wert, supra, the Supreme Court has not sanctioned this court’s opinion in State v. Wert. The order of the Supreme Court denying certiorari, specified that its refusal to review State v. Wert was based upon a jurisdictional proposition only and the Court did not consider the merits of State v. Wert.

I would also mention that the majority opinion in the Wert case relied heavily on United States ex rel. Gedko v. Heer, 406 P.Supp. 609 (WD Wis.1975). On December 6,1976, the 7th Circuit, United States Court of Appeals, filed its opinion in United States ex rel. Saiken v. Bensinger, 546 F.2d 1292 (7th Cir. 1976), which in effect overrules Gedko v. Heer, supra, and recognizes the validity of the “open fields doctrine” as established in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). Thus, the holding of the District Court for the Western District of Wisconsin is no longer authority, even in that jurisdiction.

Insofar as I know, Tennessee is the only American jurisdiction protecting open fields. I hope that our Supreme Court some day reaches this vital question on its merits.


author: HAL HARDIN, Special Judge.

text:
    James Chester ADAMS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 17, 1978.
    Certiorari Denied by Supreme Court April 10, 1978.

      Marvin E. Snow, John H. Poteet, Cooke-ville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Henry E. Hildebrand, III, Asst. Atty. Gen., Nashville, Baxter Key, Jr., Dist. Atty. Gen., Carthage, Laken Mitchell, Asst. Dist. Atty. Gen., Cookeville, Bobby H. Capers, Asst. Dist. Atty. Gen., Mt. Juliet, for appellee.
   OPINION

HAL HARDIN, Special Judge.

James Chester Adams appeals from his first degree murder conviction arising from the death of his four year old stepson, Patrick Lewis Adams. The appellant’s sentence of death by electrocution has been commuted to life imprisonment by executive order of the Governor of Tennessee.

The appellant makes four assignments of error, challenging (1) the denial of his motion for a change of venue based on prejudicial and inflammatory pre-trial publicity; (2) the admission of the testimony of his wife in violation of the privilege regarding confidential marital communications; (3) the admission into evidence of photographs of the partially decomposed body of the victim; and (4) the constitutionality of the death penalty. The last assignment has been rendered moot by the commutation order and must therefore be overruled. For the reasons set out below, we also overrule the remaining assignments and affirm the conviction.

On August 17, 1975, the Putnam County Sheriff’s Department received word that the young victim was missing from his home, whereafter a massive search ensued, resulting in the discovery of the victim’s body three days later at the bottom of a steep grade off the shoulder of a highway in Pickett County, Tennessee. The search, the discovery of the partially decomposed body of the four year old boy, and the subsequent arrest of the appellant were highly publicized in Putnam County.

The Putnam County Sheriff testified at trial that he spoke with the appellant soon after the disappearance of his stepson and that the appellant consented to a search of his truck. During this search a stained pillow case was discovered. A State forensic seriologist testified that the stains on the pillowcase were from human blood, although he was unable to type the blood. The Sheriff further testified that he searched the appellant’s home and removed certain moldings, wood chips, a mattress cover and other items. The forensic seriologist testified that most of the stains on these exhibits were human blood.

The pathologist who performed the autopsy on the child testified that the victim died as the result of a severe beating and had suffered injuries to his head, a fractured skull, a broken nose, a fracture of the jaw bone, subdural and subarachnoid hemorrhaging on the body, and jagged fractures in the bone orbits of the eyes which apparently perforated both the eyeballs. The child also suffered a severe injury in the area of his groin which the pathologist testified could have been caused by a kick. In the doctor’s opinion the appellant’s wife could not have administered this beating to her child because of her small size, but he concluded that the appellant was physically capable of inflicting the injuries. The medical expert explained, “[I]t’s awfully hard to break children’s bones because they are much more pliable than adults.’ ”

The appellant’s wife testified that the appellant had severely beaten the child after the boy had vomited at the table while the appellant was having a meal. According to her testimony, her husband “got real mad, started slapping him and hitting him with his fist and knocking him down, and he [Patrick] was bleeding, and he told me to take him to the bathroom and clean him up.” The mother testified further that after she took her son and cleaned him up, the appellant hit the victim, knocking him to the floor, and then threatened to kill the boy if he did not get up.

The appellant testified that he did not hit or beat the child and that it was his wife who caused the injury when at the meal previously mentioned she jerked her son from the chair, pulled him across the table, threw or dropped him on the floor, and kicked him. Both the appellant and his wife testified that they cooperated in disposing of the child’s body. However, the appellant denied that he had left the body where it was finally discovered and theorized that he had been followed and the body moved.

I.

The appellant initially complains that the trial judge erred in denying his motion for a change of venue based on the extensive prejudicial and inflammatory pre-trial publicity given this case. There is no doubt many of the potential jurors had read or heard about the facts of the case prior to trial. However, the question for our determination is whether the jurors who actually sat and rendered a verdict in this case were prejudiced by what we can only characterize as an irresponsible series of newspaper articles by the Cookeville Dispatch during the week immediately preceding the beginning of the trial.

During the period when the victim was reported missing, the search occurred, the body discovered, the arrest of the appellant was made, and the preliminary hearing was held, many local media sources gave detailed, and, in the case of the newspaper involved, front page coverage to the story. However, no motion for a change of venue was made in response to this early publicity. The actual trial did not occur until almost a year after the victim’s death. However, the possibility that the passage of time would reduce the potential impact of the publicity given the case was lost when, during the week immediately preceding the commencement of the appellant’s trial, the Cookeville Dispatch ran a series of articles which recounted the facts surrounding the police investigation of the crime a year earlier. The most seriously damaging of these newspaper accounts, in terms of potential prejudice to the appellant, was a reprint of articles containing the testimony given by the appellant’s wife at the preliminary hearing.

We have carefully reviewed the many newspaper articles contained in the record on appeal, including those which ran immediately prior to trial, and there is no doubt that the articles are “sensational” in nature. However, we conclude that this result stems mainly from the fact that the details of the victim’s death are themselves sensational because of the very heinous nature of the crime committed against the victim.

There are no complaints made on appeal as to the accuracy of the news articles. The facts set out are consistent with testimony later offered at trial. Thus, we are not concerned with the problem which might have arisen if the trial judge had excluded the testimony of the wife after her testimony at the preliminary hearing had been widely disseminated. Instead, we must determine whether the nature and extent of the pretrial publicity precluded the seating of an impartial jury. We recognize that because of the timing and the content of the articles, they clearly presented a “threat or menace to the integrity of the trial,” Craig v. Harney, 331 U.S. 367, 377, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546 (1947), due to their potential impact on the venire. The selection of the jury was a lengthy process largely because so many of the prospective jurors had formed fixed opinions about the facts. Undoubtedly this problem had been exacerbated by the extensive pretrial publicity given the case. A review of the voir dire examination of the jury indicates that all of the prospective jurors were questioned at length by the trial judge, the prosecution, and the defense attorneys with regard to their familiarity with the case. Repeatedly the jurors were questioned about whether they had formed an opinion as to the guilt or innocence of the accused, and every juror finally selected for the trial jury stated that he or she could give the defendant a fair and impartial trial upon the law and the evidence. The defendant accepted the jury as constituted without exhausting his peremptory challenges.

The question of change of venue is largely within the discretion of the trial judge, and we may not reverse his action unless there is a clear abuse of this discretion. Broz v. State, 4 Tenn.Cr.App. 457, 472 S.W.2d 907 (1971), cert. denied, 406 U.S. 949, 92 S.Ct. 2054, 32 L.Ed.2d 336 (1972); Lang v. State, 3 Tenn.Cr.App. 108, 457 S.W.2d 882 (1970), cert. denied, 401 U.S. 923, 91 S.Ct. 877, 27 L.Ed.2d 826 (1971); Swain v. State, 219 Tenn. 145, 407 S.W.2d 452 (1966).

It has been generally recognized as a rule in this state that failure to challenge for cause or failure to use any available preemptory challenge to remove objectionable jurors precludes reliance upon the alleged disqualifications of jurors on appeal. Sommerville v. State, 521 S.W.2d 792 (Tenn.1975). In light of appellant’s failure to exhaust his peremptory challenges, the care with which the trial judge supervised the jury selection process, and the promise of all the jurors that they could and would give appellant a fair and impartial trial, it cannot be said that the trial judge abused his discretion in denying a change of venue.

The facts in this case are strikingly similar to those in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). There the United States Supreme Court reviewed the first degree murder conviction of a father who had abused one of his four children, tortured another, and murdered the two remaining children. As in the case before us, “[tjhere was, understandably, extensive pre-trial publicity concerning several aspects of this case . . . , [e.g.] substantial media coverage, including a number of television and radio stories . . .” 432 U.S. at 301, 97 S.Ct. at 2302, 53 L.Ed.2d at 361. In dealing with the question of whether the trial court erred in denying a change of venue, the Supreme Court referred to its previous holding in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), in which the Court recognized that:

Qualified jurors need not, however be totally ignorant of the facts and issues involved.
To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. 421 U.S. at 799-800, 95 S.Ct. at 2036 (citations omitted).

The Dobbert court noted that the defendant had failed to exhaust his peremptory challenges and that he had failed to show that he did not receive a fair and impartial trial. The court concluded:

[Dobbert’s] argument that the extensive coverage by the media denied him a fair trial rests almost entirely upon the quantum of publicity which the events received. He has directed us to no specific portions of the record, in particular the voir dire examination of the jurors, which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected. But under Murphy, extensive knowledge in the community of neither the crimes nor the putative criminal is sufficient by itself to render a trial constitutionally unfair. Petitioner in this case has simply shown that the community was made well aware of the charges against him and asks us on that basis to presume unfairness of constitutional magnitude at his trial. This we will not do in the absence of a “trial atmosphere utterly corrupted by press coverage.” Murphy v. Florida, supra. One who is reasonably suspected of murdering his children cannot expect to remain anonymous. Petitioner has failed to convince us that under the “totality of circumstances,” Murphy, supra, the Florida Supreme Court was wrong in finding no constitutional violation with respect to the pretrial publicity.

432 U.S. at 303, 97 S.Ct. at 2303, 53 L.Ed.2d at 362.

We condemn the Cookeville Dispatch for what we believe to have been an extremely untimely and sensational treatment of this case in its columns during the week immediately preceding the appellant’s trial. In this regard, the Dispatch publisher and others in a comparable position would do well to adopt and abide by the guidelines set out in Appendix A of the ABA Standards Relating to Fair Trial and Free Press (Approved Draft 1968, pp. 29-33). Nevertheless, we cannot say, based on the record as a whole, that the trial atmosphere in this case was so “utterly corrupted by press coverage” as to require a new trial. We therefore overrule the assignment of error related to the trial court’s failure to order a change of venue.

II.

Appellant next asserts that the testimony of his wife was admitted at trial in violation of the privilege regarding confidential marital communications. Whether the appellant’s actions and statements surrounding the beating of the deceased child constitute privileged communications between him and his wife presents a question of first impression in this State.

T.C.A. § 40-2404 provides that “[i]n all criminal cases, the husband or the wife shall be a competent witness to testify for or against each other.” Subsequent to the enactment of § 40-2404 in 1915, the Tennessee Supreme Court, in discussing this provision, stated that it “did not abrogate the rule as to privileged or confidential communications,” and noted that “[sjound public policy requires that neither the husband nor the wife shall be permitted to testify, in criminal cases, as to any matter coming to his or her knowledge by reason of the marital relation.” McCormick v. State, 135 Tenn. 218, 228, 186 S.W. 95, 97 (1916). This holding has been acknowledged in more recent decisions as an established limitation on the application of T.C.A. § 40-2404. Hanvy v. State, 215 Tenn. 322, 385 S.W.2d 752 (1965); Burton v. State, 501 S.W.2d 814 (Tenn.Cr.App.1973).

It has been generally recognized that the following conditions must exist before a communication, including that between husband and wife, may be considered privileged:

(1) The communications must originate in a confidence that they will not be disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
(3) The relation must be one which, in the opinion of the community, ought to be sedulously fostered.
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

8 Wigmore, Evidence §§ 2285, 2332 (McNaughton rev. 1961). Exceptions to the marital privilege, such as that made for communications made in the presence of third persons, generally arise from the failure of the communication to meet the above-stated conditions. See Hazlett v. Bryant, 192 Tenn. 251, 241 S.W.2d 121 (Tenn.1951); Burton v. State, supra at 818, 819. Furthermore, it has been held that the privilege against disclosure of communication between wife and husband does not apply to the “elements of crimes committed by one spouse upon the other.” Royston v. State, 1 Tenn.Cr.App. 748, 755, 450 S.W.2d 39, 42 (1969); Wigmore, supra § 2239. It is strongly implied by Royston that this exception to the marital privilege rule exists because the policy underlying the rule, “the preservation and protection of the home and the peace of families,” is no longer a valid concern where one spouse has committed a crime against the other. Royston v. State, supra, 450 S.W.2d at 42.

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. Indeed, it is now the public policy of this state that incidences of child abuse should be made public and that a spouse will not be prevented from testifying as to the conduct of the other spouse in cases involving the abuse of children. T.C.A. § 37-1201, et seq.; see especially T.C.A. § 37-1210. It is safe to say that the policy underlying the child abuse statutes is equally compelling in a criminal prosecution involving the alleged beating death of a child by his parent.

A growing number of jurisdictions have recognized that the need to protect children outweighs the policy of protecting the marriage relationship. As pointed out in People v. Allman, 41 A.D.2d 325, 342 N.Y.S.2d 896 (1973):

At common law, the marital privilege was subject to the well-recognized exception that injuries to one spouse by the other were outside the rule. The reasoning underlying the exception is that the enforcement of the privilege would grant a license to injure a spouse in private and the wrong thus committed would go unpunished. Moreover, an injury inflicted on one spouse by the other is destructive of the very marriage which the privilege was intended to preserve. It is not too great an expansion of the exception, and one that is justified by the reasoning basic to it, to hold that the privilege should not apply to deliberate injuries inflicted on a child of the marriage by one spouse in the presence of the other. Otherwise, the lips of the witnessing spouse would be sealed to the detriment of the child; and the injustice of the act may never be uncovered. We think . . . that the wrong to the child is equally a wrong to the observing spouse and that the performance of the injury is equally as destructive of the marriage.

Accord, Wilkinson v. People, 86 Colo. 406, 282 P. 257 (1929); O’Loughlin v. People, 90 Colo. 368, 10 P.2d 543 (1932); Hall v. Commonwealth, 309 Ky. 74, 215 S.W.2d 840 (1948); Hafer v. Lemon, 182 Okl. 578, 79 P.2d 216 (1938); State v. Snyder, 84 Wash. 485, 147 P. 38 (1915). We adopt the same position, and we thus hold that the marital privilege does not apply so as to prevent the admission of testimony by a defendant’s spouse concerning acts of violence or personal injury inflicted by the defendant upon the children of either spouse or upon minor children in the custody of or under the dominion and control of either spouse. It follows that the appellant’s assignment of error relating to the alleged violation of the marital privilege must be overruled.

III.

Finally, the appellant contends that it was error for the trial court to admit into evidence certain photographs of the body of Patrick Adams. The four black and white photographs that were introduced reveal the location and condition of the victim’s body. The admissibility of such photographs is a matter left largely to. the sound discretion of the trial judge. Briggs v. State, 501 S.W.2d 831 (Tenn.Cr.App.1973). In this case the trial judge carefully exercised his discretion in the introduction of photographs. He specifically excluded a Polaroid color photograph of the body of the victim and photographs taken during the autopsy of the child. Those photographs which were introduced were relevant to establish the severity of the wounds of the victim and to establish the hiding and disposal of the body. They were also relevant to the issues of intent and malice. Furthermore, these photographs are not of the gruesome nature likely to inflame the passions of the jury. Consequently, this assignment must also be overruled.

The judgment of the trial court is affirmed as commuted by order of the Governor.

RUSSELL and DAUGHTREY, JJ., concur.


author: PER CURIAM.

text:
    BERTON LAND DEVELOPMENT CORP. et al., Petitioners, v. RYAN MORTGAGE INVESTORS et al., Respondents.
    No. B-7109.
    Supreme Court of Texas.
    March 8, 1978.
    Benton Musslewhite, Houston, Graves, Dougherty, Hearon, Moody & Garwood, William L. Garwood, Austin, for petitioners.
    McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk, Carter Ferguson, Fort Worth, for respondents.
   ON MOTION FOR REHEARING OF APPLICATION FOR WRIT OF ERROR

PER CURIAM.

Our order of January 11, 1978, refusing the application for Writ of Error of Berton Land Development Corporation, et al, with the notation “no reversible error,” is withdrawn and the motion for rehearing is granted.

This is a suit instituted in Montgomery County by Berton Land Development Corporation, et al, against Ryan Mortgage Investors, et al, seeking actual and exemplary damages for fraud, penalties for usury, and an injunction to restrain Ryan, et al, from foreclosing on a deed of trust covering certain lands in Montgomery County. Ryan filed its Plea of Privilege to be sued in Tarrant County and subject thereto pleaded the defense of res adjudicata in its amended answer. Berton, et al, filed a controverting affidavit in which subsections 5, 7, 9, 9a, 14, 23, 27 and 29a of Article 1995, Tex.Rev.Civ. Stat.Ann. were pleaded as exceptions to the exclusive venue rule. The controverting affidavit did not address the defense of res adjudicata.

The trial court, after hearing evidence on both the Plea of Privilege and the injunction, overruled the plea and granted a temporary injunction. Upon appeal by Ryan, et al, the Court of Civil Appeals reversed the judgment of the trial court. The majority of that court held that until set aside by a court of competent jurisdiction, the plea of res adjudicata of Ryan, et al, conclusively established the non-existence of a cause of action by Berton, et al, against Ryan, et al; and that, for this reason, Ber-ton, et al, failed to plead in their controverting plea the facts which would have sustained venue in the county of suit. Tex. Civ.App., 556 S.W.2d 361.

The decision of the Court of Civil Appeals in the above respects conflicts with the opinion of this Court in General Motors Acceptance Corp. v. Howard, 487 S.W.2d 708 (Tex.1972). Under Howard, the affirmative defense of res adjudicata is not subject to consideration in a hearing on a Plea of Privilege; affirmative defenses go to the merits of an action and not to the interlocutory matter of venue.

Pursuant to the authority conferred by Rule 483, Tex.R.Civ.P., we reverse the judgment of the Court of Civil Appeals and remand the cause to that court for determination of whether the action of the trial court in overruling Ryan’s Plea of Privilege may be affirmed under any of the pleaded exceptions to exclusive venue. See Lester v. Weddle, et ux., 431 S.W.2d 1 (Tex.1968).


author: TOM G. DAVIS, Judge. ONION, Presiding Judge. DOUGLAS, Judge,

text:
    Edward Darrell CHANCE, Appellant, v. The STATE of Texas, Appellee.
    No. 56914.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 8, 1978.
    Rehearing Denied April 5, 1978.

      Don A. Hecker, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge, Asst. Dist. Atty., Houston, for the State.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated promotion of prostitution. Trial was before the court upon a plea of guilty and punishment was assessed at seven years.

At the outset, we are confronted with a fundamentally defective indictment which requires review as unassigned error “in the interest of justice” under Art. 40.09, Sec. 13, V.A.C.C.P. See Zachery v. State, Tex.Cr.App., 552 S.W.2d 136.

V.T.C.A., Penal Code, Sec. 43.04(a), “Aggravated Promotion of Prostitution,” provides:

“A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes.” [Emphasis supplied.]

The indictment, omitting its formal parts, alleges that on or about June 16, 1974, appellant:

“did then and there unlawfully control and supervise and manage a prostitution enterprise that uses two prostitutes in that the said Defendant did then and there manage a call-girl operation using two prostitutes, to wit Renee Suzette Clark and Charlotte Boatwright.”

The definition of the offense set forth in Sec. 43.04(a), supra, prescribes the requisite mental state “knowingly.”

The indictment, having failed to allege an essential element of the offense, the culpable mental state “knowingly,” is fundamentally defective. Huggins v. State, Tex.Cr.App., 544 S.W.2d 147; Ex parte Garcia, Tex.Cr.App., 544 S.W.2d 432; Price v. State, Tex.Cr.App., 523 S.W.2d 950.

The judgment is reversed and the prosecution under the indictment is ordered dismissed.

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

On original submission of this cause to Panel One for the First Quarter, 1978, the conviction for aggravated promotion of prostitution was set aside as the indictment was fundamentally defective for the failure to allege an essential element of the offense, to-wit, the culpable mental state “knowingly.”

On rehearing the State asks our reconsideration of the question. This we shall do.

V.T.C.A., Penal Code, § 43.04, provides:

“(a) A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes.
“(b) An offense under this section is a felony of the third degree.” (Emphasis added.)

The elements of the offense are:

(1) a person
(2) knowingly owns, invests in, finances, controls, supervises, or manages
(3) a prostitution enterprise
(4) that uses two or more prostitutes.

See Texas Anno. Penal Statutes with Forms, Branch’s 3rd Ed., Vol. 3, § 43.04, p. 237.

V.T.C.A., Penal Code, § 6.02 (Requirement of Culpability), provides:

“(a) Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
“(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.
“(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:
“(1) intentional;
“(2) knowing;
“(3) reckless;
“(4) criminal negligence.
“(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.”

It is clear from Subsection (b) of said § 6.02 that if the definition of an offense does not prescribe a culpable mental state one is nevertheless required unless the definition of the offense plainly dispenses with any mental element. See Baldwin v. State, 538 S.W.2d 109 (Tex.Cr.App.1976). An observation of the offense provided under § 43.04 of the new Penal Code clearly shows that “knowingly” is the necessary culpable mental state contained in the very definition of the offense of aggravated promotion of prostitution and a necessary element of the offense.

The indictment in the instant case provided, eliminating the formal parts, that the appellant, on or about June 16, 1974,

“did then and there unlawfully control and supervise and manage a prostitution enterprise that uses two prostitutes in that the said Defendant did then and there manage a call-girl operation using two prostitutes, to wit: Renee Suzette Clark and Charlotte Boatwright.”

It is clear that the indictment did not allege the constituent element of “knowingly” as provided in the definition of aggravated promotion of prostitution.

Article 21.03, V.A.C.C.P., provides:

“Everything should be stated in an indictment which is necessary to be proved.”

This statute states an elementary rule of criminal pleading of long standing. It has been said that the legislature cannot authorize the courts to dispense with essential allegations. Hewitt v. State, 25 Tex. 722 (1860); Huntsman v. State, 12 Tex.App. 619 (1882). An indictment or information must by direct and positive averments allege all of the constituent elements of the offense sought to be charged. Waghalter v. State, 126 Tex.Cr.R. 89, 70 S.W.2d 420 (1934); Gremillion v. State, 131 Tex.Cr.R. 492, 100 S.W.2d 106 (1936); Anderson v. State, 132 Tex.Cr.R. 37, 105 S.W.2d 258 (1936). Nothing must be left to inference or intendment. Selvidge v. State, 126 Tex.Cr.R. 489, 72 S.W.2d 1079 (1934). In fact, the sufficiency of the indictment cannot be aided by intendment. Jones v. State, 118 Tex.Cr.R. 106, 38 S.W.2d 587 (1931). In Wimer v. State, 120 Tex.Cr.R. 576, 48 S.W.2d 296 (1932), it was held that all elements constituting an offense must be sufficiently charged so as to inform, without intendment, the presumptively innocent man of the charges against him.

In Woolsey v. State, 14 Tex.App. 57 (1883), a question arose concerning the absence of the word “willful” in the indictment. There the court wrote:

“. . .As will be seen by reference to the article quoted [Art. 270, Penal Code] supra, the word ‘wilfully’ is the word used to characterize the acts intended to be prohibited by statute. It is made an essential element of the crime, and unless it is alleged the indictment does not charge the offense defined, even though it avers, as does the one before us, in general terms that the acts complained of were ‘contrary to the form of the statute in such cases made and provided.’ Such an allegation does not supply the deficiency in the description.”

Only recently in Ailey v. State, 547 S.W.2d 610 (Tex.Cr.App.1977), we were confronted with a similar situation as in the case at bar. There the indictment charging the compelling of prostitution of a person under the age of seventeen years under V.T.C.A., Penal Code, § 43.05, failed to allege “knowingly” a necessary element of that offense. In Alley we concluded that the indictment was fundamentally defective. In effect we held that an allegation that the offense was committed “knowingly” is necessary when “knowingly” is a constituent element of the crime. That holding is consistent with the one reached on original submission. See also Wilkinson v. State, 150 Tex.Cr.R. 274, 200 S.W.2d 631 (1946), and cases there cited.

The State in its motion for rehearing calls attention to Article 21.17, V.A.C.C.P., which provides:

“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.” (Emphasis added.)

The State relies upon the underscored portion of the statute. The State argues that the offense charged could only be “unlawful” if done “knowingly,” apparently relying upon an allegation of “unlawfully” in the indictment.

“If the word ‘knowingly’ is a constituent element of the offense, the word ‘unlawfully’ is not its equivalent. State v. Stalls, 37 Tex. 440; State v. Arnold, 39 Tex. 74; Tynes v. State, 17 [Tex.] App. [123] 126; Ham v. State, 118 Crim. [Tex.Cr.R.] 271, 40 S.W.2d 152.” 1 Branch’s Ann.P.C., 2d ed., § 520, p. 499. See and cf. Woolsey v. State, supra.

The State’s contention is without merit.

Of course, it is not necessary to use the exact language of the statute defining the offense charged, but by its very terms Article 21.17, supra, requires that the substituted words must convey the same meaning or include the sense of the statutory word. This is a general rule of common sense, but it has some limitations. As noted in the Annotations under Article 21.17, supra, n. # 1.

“But if the statutory words be words of technical meaning, they cannot be substituted by other words, as ‘malice aforethought’ in murder, or ‘fraudulently’ in theft. Drummond v. State (1847) 2 T. [Tex.] 156; McElroy v. State (1883) 14 Cr.R. [Tex.App.] 235; Cravey v. State (1896) 36 [Tex.] Cr.R. 90, 35 S.W, 658, 61 Am.St.Rep. 833; Chance v. State (1889) 27 [Tex.App.] Cr.R. 441, 11 S.W. 457.”

V.T.C.A., Penal Code, § 6.03 (Definitions of Culpable Mental States), provides in Subsection (b):

“A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.”

Thus, the culpable mental state of “knowingly” is expressly defined and has acquired a technical meaning for the purposes of the Penal Code not equivalent to the word “knowingly” found in the ordinary dictionary. Thus, words equivalent to the common everyday usage of “knowingly” would not be equivalent to the technical definition of the term found in the Penal Code.

We conclude as we did on original submission that the indictment in the instant case is fundamentally defective for failing to allege a constituent element of the offense charged, that is the culpable mental state of “knowingly.” See Ailey v. State, supra; Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976); Ex parte Garcia, 544 S.W.2d 432 (Tex.Cr.App.1976); Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976); Price v. State, 523 S.W.2d 950 (Tex.Cr.App.1975). See also Wilkinson v. State, supra, and cases there cited.

The State’s motion for rehearing is overruled.

DOUGLAS, Judge,

dissenting on State’s motion for rehearing.

Can a man control, supervise and manage a prostitution enterprise and a call girl operation that uses two prostitutes without knowing it? If he can, then the indictment is insufficient and the majority is correct in denying the motion for leave to file the State’s motion for rehearing.

Even though appellant entered a plea of guilty and there was no motion to quash the indictment and no complaint on appeal, the panel deciding this cause on original submission held that the failure to allege the word “knowingly” before the allegation that he controlled, managed and supervised the prostitution enterprise was fundamentally defective.

Article 21.17, V.A.C.C.P., provides:

“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.” (Emphasis supplied)

V.T.C.A., Penal Code, Section 43.04(a), provides:

“A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes.”

The charging part of the indictment alleged that appellant

“did then and there unlawfully control and supervise and manage a prostitution enterprise that uses two prostitutes in that the said Defendant did then and there manage a call-girl operation using two prostitutes, to-wit, Renee Suzette Clark and Charlotte Boatwright.”

There could be some reason to consider the indictment as being insufficient for not alleging knowingly if it alleged that one owned, invested in or financed a house where there was prostitution. One might own, invest in or finance a motel and not know that a prostitution enterprise was being conducted on the premises.

The majority in discussing Article 21.17, supra, which provides that the exact words in a statute do not have to be used in alleging an offense, gives the unsound and illogical reasoning in failing to follow the statute that the word “knowingly” has a technical meaning but not the meaning as used or found in the ordinary dictionary.

It is submitted that no amount of judicial embroidery or legalistic mumbo jumbo can change the definition of “knowingly” or make it a technical word.

It is even conceivable that the legendary not too bright piano player in a bordello might not have known what was going on upstairs, but it is inconceivable that one can control, supervise a prostitution enterprise and manage a call girl operation using two prostitutes and not know what was going on.

In Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978), this Court held that the allegation of “attempt” included “intent.” The words supervise, control and manage include knowingly. One cannot supervise, control and manage any business without knowing that he is doing it. The exact words of the statute were not alleged in Dovalina. We should follow the same reasoning in this case.

The indictment is not defective. It uses “other words conveying the same meaning, or which include the sense of statutory words” under Article 21.17, supra. The State’s motion for rehearing should be granted, and the judgment should be affirmed.

VOLLERS and W. C. DAVIS, JJ., join in this dissent.


author: ROBERTS, Judge.

text:
    Ex parte Larry Rodger SEALEY.
    No. 57135.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 29, 1978.
    Appellant’s Motion for Rehearing En Banc Denied April 19, 1978.
    Frank Blazek, Huntsville, for appellant.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

This is a post conviction application for a writ of habeas corpus under Article 11.07, Vernon’s Ann.C.C.P.

On April 4, 1975, the petitioner was indicted in Cause No. F-75-4022-JI, from Dallas County, for possession of a criminal instrument. On August 29, 1975, the petitioner pleaded guilty to possession of a criminal instrument and the trial judge assessed the petitioner a ten-year probated sentence. No appeal was prosecuted by the petitioner.

On January 20, 1976, the State filed a motion to revoke the petitioner’s probation in Cause No. F-75-4022-JI. On February 16, 1976, the petitioner was indicted in Cause No. F-76-1448-NI, from Dallas County, for forgery. On February 20, 1976, a hearing on the motion to revoke the petitioner’s probation in Cause No. F-75-4022-JI and the trial on the forgery indictment were set. At that time, the petitioner pleaded true to the motion to revoke his probation in Cause No. F-75-4022-JI and also pleaded guilty to the forgery indictment. The trial judge revoked the petitioner’s probation in Cause No. F-75-4022-JI and sentenced the petitioner to five years’ confinement in the Texas Department of Corrections. The trial judge also assessed the petitioner five years in Cause No. F-76-1448-NI. No appeals were taken by the petitioner in either of these causes.

The petitioner contends that his conviction in Cause No. F-75-4022-JI was illegally prosecuted under V.T.C.A., Penal Code, Section 16.01, when in fact it should have been prosecuted under V.T.C.A., Penal Code, Section 32.21, and that his guilty plea in Cause No. F-76-1448-NI was not knowingly, intentionally, and voluntarily made and was in violation of Article 26.13, Vernon’s Ann.C.C.P. We grant the relief requested as to Cause No. F-75-4022-JI and deny the relief requested as to Cause No. F-76-1448-NI.

On September 29, 1977, the petitioner filed his application for writ of habeas corpus. On November 21, 1977, the trial judge, without conducting a hearing, entered his findings of fact and conclusions of law which support the petitioner’s first contention and fail to support his second contention.

The petitioner’s first contention is that his conviction for knowingly and intentionally possessing a criminal instrument, namely, a forged prescription, with intent to use it in the commission of obtaining possession of a controlled substance, was illegally obtained as he should have been prosecuted for forgery. The disposition of this contention is governed by Ex Parte Pribble, 548 S.W.2d 54 (Tex.Cr.App.1977); Sarratt v. State, 543 S.W.2d 391 (Tex.Cr.App.1976); and Ex Parte Harrell, 542 S.W.2d 169 (Tex.Cr.App.1976). In those cases, situations identical to the present case were involved. Accordingly, the petitioner's conviction in Cause No. F-75-4022JI must be set aside and the indictment ordered dismissed.

The petitioner’s second contention is that his guilty plea in Cause No. F-76-1448-NI was not knowingly, intentionally and voluntarily made and that he was not properly admonished under Article 26.13, Vernon’s Ann.C.C.P. The petitioner’s contention is not supported by the record. The judgment in Cause No. F-76-1448-NI refutes the allegations of the petitioner’s application. Moreover, no transcription of the petitioner’s guilty plea in Cause No. F-76-1448-NI is contained in the record. Nothing is presented for review. Appellant’s second contention is overruled.

The relief requested in Cause No. F-75-4022-JI is granted. Accordingly, the judgment in Cause No. F-75-4022-JI is set aside and the indictment ordered dismissed. The relief requested as to Cause No. F-76-1448-NI is denied. It is so ordered.

      . V.T.C.A., Penal Code, Section 16.01. This section was amended subsequent to the indictment in Cause No. F-75-4022-JI. See Acts 1975, 64th Leg., ch. 342, p. 913, section 7, effective September 1, 1975.

      . V.T.C.A., Penal Code, Section 32.21.

      . The trial judge reduced the petitioner’s term of imprisonment from ten years to five years when he revoked the petitioner’s probation. See Vernon’s Ann.C.C.P., Article 42.12, Section 8(a).

      .The petitioner’s application is governed by the recent amendment to Article 11.07, Section 2, Vernon's Ann.C.C.P. See Acts 1977, 65th Leg., ch. 789, p. 1974-75, Section 1.


author: ODOM, Judge. ONION, Presiding Judge,

text:
    Jessie BEAN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 55629.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 5, 1978.
    Frank M. Sheppard, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge, and Keno M. Henderson, Jr., Asst. Dist. Attys., Houston, for the State.
    Before ONION, P. J., and ODOM and DOUGLAS, JJ.
   OPINION

ODOM, Judge.

On September 14, 1977, we dismissed the appeal in the instant cause in an unpublished per curiam opinion. Our mandate issued on September 30,1977, and was filed with the clerk of the trial court on October 4, 1977. On March 13, 1978, we received a supplemental transcript from the clerk of the trial court. We reinstate the cause on the docket for the purpose of deciding whether the supplemental transcript shows compliance with our September 14, 1977, opinion and whether the appeal may be reinstated for decision on the merits.

A review of the supplemental transcript shows that our opinion of September 14, 1977, was misunderstood and not complied with. Therefore, we find it again necessary to dismiss the appeal.

On February 17,1976, appellant appeared in the 177th Judicial District Court before the Hon. Stanley Kirk, a visiting judge. On that occasion appellant waived trial by jury and entered a plea of guilty before the court to the offense of aggravated robbery. Judge Kirk found appellant guilty and reset the case for April 23, 1976, in order to obtain a presentence investigation. On April 23, appellant again appeared in the 177th Judicial District Court before the Hon. Hoyet Armstrong, another visiting judge. On that occasion the record reflects that, without assessing a definite punishment, the trial judge inquired if appellant had “any reason to offer as to why the sentence should not be pronounced at this time?” After appellant’s counsel made a statement to the court, the trial judge announced:

“It is ordered, decreed and adjudged you be taken by the sheriff and turned over to the authoritative agency of the Texas Department of Corrections, to which place you will be transported and therein confined for not less than two nor more than five years, . . . ”

See Ex parte Church, 163 Tex.Cr.R. 357, 292 S.W.2d 120 (1956). In view of these proceedings, which were reflected by the original record before this Court, we dismissed the appeal in our September 14, 1977, opinion, concluding:

“Our reading of the record convinces us that the trial court ‘sentenced’ appellant without ever having assessed a punishment. We recently discussed this problem in Conaway v. State, 549 S.W.2d 181 (Tex.Cr.App.1977). It would unduly elongate this opinion to repeat that discussion here. It is sufficient to say, however, that our decision in Conaway mandates dismissal of this appeal.
“Upon receipt of the mandate from this Court, the trial court is directed to conduct a hearing with appellant and counsel present, and to assess punishment and render judgment, and next proceed in compliance with the provisions of Article(s) 42.03 and 40.09, Vernon’s Ann. C.C.P., as stated in the concluding paragraph in Wood(s) v. State, 532 S.W.2d 608 (Tex.Cr.App.1976).”

The supplemental transcript reflects that, on September 22, 1977, and prior to the issuance of our mandate on September 30, 1977, another hearing was held in the 177th Judicial District Court before the Hon. E. E. Jordan, a third visiting judge. Although the trial court did not have jurisdiction, since the appeal was still pending before this Court, and our mandate had not issued, the trial judge called upon appellant to either be sentenced or accept the 10 days in which to file a motion for new trial or motion in arrest of judgment. Appellant elected to take the 10 days. However, the record does not reflect that any punishment was assessed on that date.

On October 3, 1977, appellant again appeared in the 177th Judicial District Court, this time before the Hon. Tillman Smith, another visiting judge. At that time, without any definite punishment having been assessed, appellant was sentenced to an indeterminate term of “not less than five nor more than five years(’) confinement” in the Department of Corrections. Appellant gave notice of appeal, and a supplemental transcript was prepared and was forwarded to this Court.

Although the judgment of the trial court, which is dated February 17, 1976, states that “(o)n this the 23rd day of April, 1976, the Court assessed the punishment at confinement in the Texas Department of Corrections for 5 years,” the transcription of the court reporter’s notes does not show that a definite five-year punishment was ever assessed against this appellant. Instead, it shows that, without assessing a definite punishment, the trial court “sentenced” appellant. In Conaway v. State, supra, we stated:

“The term ‘conviction’ as used in Art. 40.05, V.A.C.C.P., relating to motions for new trial and Art. 41.01, V.A.C.C.P., relating to motions in arrest of judgment includes both an adjudication of guilt plus an assessment of punishment. Woods v. State, Tex.Cr.App., 532 S.W.2d 608; Faurie v. State, Tex.Cr.App., 528 S.W.2d 263. The judgment following a finding of guilt must contain, among the other elements mentioned in Art. 42.01, V.A.C.C.P., ‘10. That the defendant be punished as has been determined.’ This sentence must be based on a valid judgment, for without a valid judgment the court is not authorized to sentence the defendant. Morgan v. State, Tex.Cr. App., 515 S.W.2d 278; Scott v. State, Tex.Cr.App., 461 S.W.2d 619.
. .As stated in Scott v. State, supra, a ‘judgment’ (Art. 42.01, V.A.C. C.P.) and a ‘sentence’ (Art. 42.02, V.A.C. C.P.), are not the same thing but distinct and independent.”

Consequently, without reaching the merits, we find it necessary to dismiss the appeal again and remand the cause to the trial court. Upon receipt of the mandate from this Court, the trial court is directed to set aside the judgment dated February 17, 1976, its sentence dated April 23, 1976, and its “RE/SENTENCE” dated October 3, 1977. The trial court is then directed to conduct a hearing with appellant and counsel present and to assess a definite punishment and render judgment pursuant to Art. 42.01, V.A.C.C.P. The trial judge should next allow appellant the time in which to file a motion for new trial or motion in arrest of judgment as stated in Art. 42.03, V.A.C.C.P. unless such time is waived. After the expiration of the time provided in Art. 42.03 or after appellant waives such time, the trial court should next proceed to pronounce sentence in accordance with Art. 42.02, V.A.C.C.P. If the appellant still desires to appeal, he may do so by giving notice of appeal within the time provided by Art. 44.08(c), V.A.C.C.P. If such is done, the appeal shall then proceed under the appropriate provisions of Art. 40.09, V.A.C. C.P. unless waived by the parties.

The appeal is again dismissed.

ONION, Presiding Judge,

concurring.

I concur in the result reached. I would point out, however, that part of the difficulty involved in the instant case is the failure of the trial court to assess punishment at the time the guilty plea was entered before the court. The use of presentence investigation reports is to be commended. The only reference to such reports, however, to be found in the Code of Criminal Procedure is in Article 42.12, Section 4, V.A.C.C.P. The proper use of such reports is to enable the trial court to pass on the issue of probation, not to determine the punishment to be assessed. These reports frequently contain hearsay, information concerning inadmissible extraneous offenses, and other matters that would not be admissible at trial.

If punishment in a felony case is assessed at the time of the plea of guilty or nolo contendere and that punishment is less than ten years so that probation is a possibility and a pre-sentence investigation is ordered, it will be clear later that the report obtained as a result of that investigation was used only to pass on the issue of probation. This avoids the problem inherent in the instant case of one judge serving by administrative assignment, from hearing the evidence, and another judge, who may or may not have any evidence before him, assessing punishment at a later date.

Article 37.07, V.A.C.C.P., providing for bifurcated trials is, by its very terms, not applicable to guilty pleas in felony cases either before a judge or jury. Basaldua v. State, 481 S.W.2d 851, 853 (Tex.Cr.App.1972), and cases there cited. See also Johnson v. State, 492 S.W.2d 505 (Tex.Cr.App.1973); Morales v. State, 416 S.W.2d 403 (Tex.Cr.App.1967). While a judge without statutory authority may convert a guilty plea in a bench trial into bifurcated proceedings, particularly where there is no objection, many problems can arise from such action. Records coming before this Court, particularly from Harris County, have demonstrated a growing tendency to bifurcate these proceedings. In most of these eases the punishment is not assessed at the time of the guilty plea and the cases have been reset for the purpose of obtaining a pre-sen-tence investigation. At the second hearing, instead of the court passing on the issue of probation, the courts have been permitting the defense to reopen and present evidence as to the facts surrounding the offense as well as presenting reputation witnesses. The State often counters with other evidence concerning the offense. In many of the records the defendant or other defense witnesses at the second hearing raise by their testimony defenses of alibi, self-defense, etc., which in turn raises the question of whether the trial court should have sua sponte withdrawn the guilty plea under the rule that where the evidence makes evident the innocence of the defendant or which fairly and reasonably raises such issue, the court should withdraw the guilty plea on its own motion if the defendant does not do so himself or fails to withdraw such evidence raising such issue.

Many of these problems can be avoided by hearing all the evidence, including reputation witnesses at one hearing upon a guilty plea before the court. If punishment is then assessed, the only issue left is the question of probation to be determined by the court following a review of a pre-sen-tence report. Thus, a second hearing on punishment is avoided and the valuable time of our trial courts with heavy trial dockets is saved.

If such procedure had been utilized in the instant case we would not be dismissing the appeal.

I concur.

      . It should be noted that the minimum punishment for aggravated robbery is five years. V.T.C.A., Penal Code, Secs. 29.03 and 12.32.

      . These judges are referred to in the majority opinion as “visiting judges.”