author: HENRY, Chief Justice.

text:
    H & L MESSENGERS, INC., Appellant, v. CITY OF BRENTWOOD et al., Appellees.
    Supreme Court of Tennessee.
    Feb. 12, 1979.

      Daniel R. Loftus, Watkins, McGugin, McNeilly & Rowan, Nashville, for appellant.
    Robert H. Jennings, Jr., West, Jennings & Allen, Nashville, for appellees.
    James R. Kniffen, Barrett, Lenahan, Kniffen & Ray, Nashville, Peter J. Carre, Washington, D. C., for appellee-intervenor, Branch 4, Nat. Ass’n of Letter Carriers, AFL-CIO.
   OPINION

HENRY, Chief Justice.

This declaratory judgment action, filed pursuant to § 23-1101, T.C.A. and Rule 65, Tenn.R.Civ.P., attacks the constitutionality of an ordinance of the City of Brentwood, on the single basis that it contravenes the First Amendment to the Constitution of the United States.

The Chancellor, whose action is more fully set out hereinafter, declared the ordinance valid, after eliding certain portions he considered unconstitutional.

I.

Background

The City of Brentwood, located in the extreme northern portion of Williamson County, has a population of approximately 8,000 persons, and is overwhelmingly residential in character. According to the testimony of one of its elected officials, a constant effort has been made “to maintain a community that is peaceful, dignified, and a comfortable place for people who live there to call home.”

Homes are located on lots containing a minimum of one (1) acre. Apartment complexes are not permitted. The overall density factor is on the maximum basis of one family per acre. At least 95% of the residents are employed outside the city. It maintains a small police department and the city’s greatest law enforcement problem is housebreaking or burglary.

It would be fair to state that the residents of Brentwood have attempted to establish a city of “quiet seclusion” and a “sanctuary for people.” Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974).

To further this goal, the governing body of the city adopted the ordinance in question. Its purposes were to prevent litter in yards and streets, to maintain the privacy of residents, and to combat burglary by guarding against accumulations of handbills and other advertising material during extended absences of residents from their homes, thus eliminating indications that the premises were temporarily vacant.

H & L Messengers is engaged in the business of delivering handbills or circulars, and occasionally samples, in Brentwood and surrounding areas. Its modus operandi is to place the advertising matter in plastic bags which, in turn, are hung on door knobs or attached to mailboxes by means of rubber bands.

In the year preceding this suit some 30,-000 deliveries were made in Brentwood and a substantial number of these involved uninvited entry upon the property owned by citizens of Brentwood.

The proof indicates that it is difficult, if not impossible, for a citizen to have these deliveries discontinued. This delivery method has resulted in advertising handbills and other matter being blown into residents’ yards and those of neighbors and upon the streets.

The proof shows, and the Chancellor found, that other advertising methods are available, but the service provided by H & L is substantially cheaper and more efficient. It should be emphasized, however, that H & L does not obtain prior approval or consent to enter upon private property and does not cease deliveries when requested to do so.

Branch 4, National Association of Letter Carriers, AFL-CIO was permitted to intervene in the trial court. The stated interests of this group are job protection and the protection of the good name of carriers who sometimes are charged with complaints based upon H & L’s delivery methods.

II.

The Ordinance

Sequentially, the ordinance prohibits:

a. Throwing or depositing commercial or non-commercial handbills on any sidewalk, street, or other public place. (Sec. 2)
b. Handing out, distributing, or selling commercial handbills in any public place. (Sec. 2)
c. Throwing or depositing commercial or non-commercial handbills in or on any “temporarily or continuously uninhabited or vacant” private premises. (Sec. 3)
d. Throwing, depositing, or distributing any commercial or non-commercial handbill in or on any private premises, unless delivered to an owner, occupant, or other person on the premises. (Sec. 4)

It permits:

a. The distribution, without charge, of any non-commercial handbill, on any street, sidewalk, or other public place, to any willing recipient. (Sec. 2)

It exempts:

a. Mail, newspapers, religious, and political material from the prohibitions against delivery to vacant or unoccupied premises, but requires that such material be placed on private property “in such a manner as to prevent their being carried or deposited by the elements upon any street, sidewalk or other public place or upon private property.” (Sec. 3)
b. Mail, newspapers, religious, and political material are wholly exempt from Section 4, with the result that such items may be thrown, deposited, or distributed on private premises without permission.

In summary:

a. Commercial or non-commercial handbills may not be deposited or thrown upon any street, sidewalk, or other public place, or upon any vacant or unoccupied premises, or distributed to any private premises unless delivered to the owner, occupant, or some other person.
b. Commercial handbills may not be distributed in any public place.
c. Mail, newspapers, and political or religious material may be delivered to any private premises, subject to the qualification that if the property is vacant or unoccupied, the material must be placed in such a manner as to prevent litter.

The evident confusion of this incongruous scheme is compounded by the definitions of the terms “commercial handbill” and “noncommercial handbill.” We set these out verbatim:

(1) Commercial handbill is any imprinted or written matter, any sample or device, dodger, circular, leaflet, pamphlet, paper, booklet, or any other printed or otherwise reproduced original or copies of any matter of literature.
(a) Which advertises for sale any merchandise, product, commodity, or thing; or
(b) Which directs attention to any business or mercantile or commercial establishment, or other activity, for the purpose of either directly or indirectly promoting the interest thereof by sales; or
(c) Which directs attention to or advertises any meeting, theatrical performance, exhibition, or event of any kind, for which an admission fee is charged for the purpose of private gain or profit; or
(d) Which, while containing reading matter other than advertising matter, is predominantly and essentially an advertisement, and is distributed or circulated for advertising purposes, or for the private benefit and gain of any person so engaged as advertiser or distributor.
(3) Non-commercial handbill is any printed or written matter, any sample, or device, dodger, circular, leaflet, pamphlet, newspaper, magazine, paper, booklet, or any other printed or otherwise reproduced original or copies of any matter of literature not included in the aforesaid definitions of a commercial handbill or newspaper, but excluding religious or political printed material. (Emphasis supplied)

Although the structure of the ordinance indicates an apparent intention to create three categories, viz., commercial, non-commercial, and ideological, the definition of commercial handbills is so broad that it includes virtually every communication that is not purely ideological. Applying technical rules of grammar, the effect of “excluding religious or political printed material” from the definition of non-commercial handbills is to convert such material into commercial handbills, the only other category defined by the ordinance. When read in a more liberal light, the totality of its provisions indicates an intent to divide materials into two categories, i. e., commercial and ideological. Within the context of these definitions, a prospective advertiser or distributor of handbills would be hard put to determine the proper classification of any matter intended for delivery. We are plagued by the same problem.

III.
The Chancellor’s Findings
The Chancellor held that:
. the ordinance in question was enacted for the purpose of (1) preventing littering on both private and public property, (2) preventing conditions tending to encourage burglaries of temporarily unoccupied premises and (3) protecting the privacy of residents of the city. The Court finds that the ordinance does tend to effect those three purposes.

We concur in these findings.

Adopting the test stated in Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951) that constitutionality “turn[s] upon a balancing of the conveniences between some householders’ desire for privacy and the publisher's right to distribute publications in the precise way that those soliciting for him think brings the best results,” (Emphasis supplied) 341 U.S. at 644, 71 S.Ct. at 933, the Chancellor held that:

the public interest in preventing littering and burglaries are substantial and legitimate interests which are effectively served by the ordinance in question and that these interests substantially outweigh the First Amendment rights affected by the ordinance insofar as the rights affected involve commercial communication.

But, said the Chancellor:

this ordinance undertakes to regulate the delivery of non-commercial handbills . in the same manner as it regulates commercial handbills. The definition of “non-commercial handbill” clearly includes communications which are at least arguably religious, political or artistic.

As our discussion indicates, we are not in accord with this portion of the Chancellor’s analysis. Ideological materials clearly are exempt from the definition of non-commercial handbills.

Further, the Chancellor says:
[s]uch non-commercial communications are entitled to the full scope of protection of the First Amendment and this Court is of the opinion that the public interests served by the ordinance are not sufficiently compelling to justify the curtailing of non-commercial communication. This Court is accordingly of the opinion that the ordinance is unconstitutional under the First Amendment insofar as it undertakes to regulate non-commercial handbills as defined in the ordinance.

As heretofore indicated there are definitional problems that make it difficult for us to treat this as a category of speech regulated by the ordinance.

IV.

The First Amendment and Commercial Speech

The notion that commercial speech is not protected by the First Amendment was first articulated in Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed.2d 1262 (1942), in an opinion later characterized by Justice Douglas as “casual, almost off hand” Cammarano v. United States, 358 U.S. 498, 514, 79 S.Ct. 524, 534, 3 L.Ed.2d 462, 472 (1959), (Douglas, J., concurring), and classified as distinctly a limited decision in Bigelow v. Virginia, 421 U.S. 809, 819, 95 S.Ct. 2222, 2231, 44 L.Ed.2d 600, 610 (1975).

Bigelow virtually obliterated the notion of unprotected commercial speech. Virginia Board of Pharmacy v. Virginia Citizen’s Consumer Council, 425 U.S. 748, 759, 96 S.Ct. 1817, 1824, 48 L.Ed.2d 346, 357 (1976). Specifically leaving open the question of “the extent to which constitutional protection is afforded commercial advertising under all circumstances and in the face of all kinds of regulation,” 421 U.S. at 826, 95 S.Ct.at 2235, the Court held that “commercial [speech] enjoys a degree of First Amendment protection.” 421 U.S. at 821, 95 S.Ct. at 2232. The Court suggested a balancing test:

Advertising, like all public expression, may be subject to reasonable regulation that serves a legitimate public interest, (citation omitted) To the extent that the commercial activity is subject to regulation, the relationship of speech to that activity may be one factor, among others, to be considered in weighing the First Amendment interest against the governmental interest alleged. Advertising is not thereby stripped of all First Amendment protection. The relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas.
Regardless of the particular label asserted by the State — whether it calls speech “commercial” or “commercial advertising” or “solicitation” — a court may not escape the task of assessing the First Amendment interest at stake and weighing it against the public interest allegedly served by the regulation. 421 U.S. at 826, 95 S.Ct. at 2235

Needless to say this weighing process was lacking in specifics and required much in the way of clarification. Further articulation came within a year when the Supreme Court announced its decision in Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed. 346 (1976).

Recognizing that Bigelow had left undecided the extent to which commercial speech may be regulated and prohibited, the Court said that “[h]ere, in contrast, the question whether there is a First Amendment exception [to] ‘commercial speech’ is squarely before us.” 425 U.S. at 760, 96 S.Ct. at 1825.

Further the Court said:
Our question is whether speech which does “no more than propose a commercial transaction,” (citation omitted) is so removed from any “exposition of ideas,” (citation omitted) and from “ ‘truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government,’ ” (citation omitted) that it lacks all protection. Our answer is that it does not. 425 U.S. at 762, 96 S.Ct. at 1825

The stage having been set, the Court held that “the free flow of commercial information is indispensable” to the public interest. 425 U.S. at 765, 96 S.Ct. at 1827. It did not, however, define commercial speech, and the standard against which its curtailment may be measured remains somewhat nebulous.

The Court framed the test of the validity of regulation in these words:

In concluding that commercial speech, like other varieties, is protected, we of course do not hold that it can never be regulated in any way. Some forms of commercial speech regulation are surely permissible. We mention a few only to make clear that they are not before us and therefore are not foreclosed by this case.
There is no claim, for example, that the prohibition on prescription drug price advertising is a mere time, place, and manner restriction. We have often approved restrictions of that kind provided they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information. (Emphasis supplied) 425 U.S. at 770-71, 96 S.Ct. at 1830

The Court, however, expressly did not delineate the “proper bounds of time, place, and manner restrictions.”

In formulating the above test the Court cited in support of time, place, and manner regulation the case of Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), wherein the Court, on equal protection grounds, struck down an ordinance which outlawed demonstrations near schools except for peaceful labor picketing. The Court held that the distinction between labor picketing and other peaceful picketing is constitutionally impermissible.

Another time, place, and manner decision cited was Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513, 10 ALR 2d 608 (1949), wherein the Court upheld, against an attack on first amendment grounds, an ordinance prohibiting the operation on city streets of vehicles equipped with sound amplifiers which emit loud and raucous noises. For other cases involving time, place, and manner regulations, see Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966); Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941).

The case of Rowan v. United States Post Office, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970) has some relevance to the question under consideration. There the Supreme Court upheld a federal statute authorizing a citizen to require that a mailer of pandering advertisements remove his name from its mailing lists and discontinue all future mailings to him. In so holding the Court said:

. it seems to us that a mailer’s right to communicate must stop at the mailbox of an unreceptive addressee.
To hold less would tend to license a form of trespass . . . The ancient concept that “a man’s home is his castle” into which “not even the king may enter” has lost none of its vitality . . . 397 U.S. at 736-37, 90 S.Ct. at 1490
Further, the Court said:
We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even “good” ideas on an unwilling recipient. That we are often “captives” outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. 397 U.S. at 738, 90 S.Ct. at 1491.

We fully realize that a distinguishing characteristic of Rowan is that the ban on the delivery and receipt of objectionable matter is invoked by the citizen as opposed to his government; however, its rationale as to a licensed trespass and the uninvited intrusion upon private premises is apropos the case at bar.

A pertinent case cited in Virginia Board of Pharmacy, supra, is Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975), in which the Court struck down an ordinance prohibiting the display of nude films by a drive-in theater having a screen visible from a public street or place. The basis for the Court’s action was that the ordinance discriminates among movies “solely on the basis of content.” 422 U.S. at 211, 95 S.Ct. at 2273. Quoting from Police Department of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212, 216 (1972), the Court said:

[Ajbove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. (Emphasis supplied) 422 U.S. at 215, 95 S.Ct. at 2275.

A post-Bigelow and Virginia Board of Pharmacy case relevant to the issue under discussion is Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977). The township, concerned with “white flight,” enacted an ordinance prohibiting the posting of “For Sale” or “Sold” signs on real estate. On the basis of its impairment of the flow of truthful and legitimate information, the Court struck down the ordinance.

The Court recognized that “laws regulating the time, place, or manner of speech stand on a different footing from laws prohibiting speech altogether,” but held that this was not such a regulation. In reaching this decision the Court held (1) that alternative channels of communication were “far from satisfactory,” (2) the ordinance was “not genuinely concerned with the place of the speech,” (3) it did not act “to restrict a mode of communication that ‘intrudes on the privacy of the home,’ ” and (4) more importantly, it was concerned with “the substance of the information.”

V.

General Commentary

The notion of protected commercial speech is yet in its early stage of development. This concept of constitutional law, while hinted at in earlier decisions, had its actual origin and its initial articulation in Bigelow in 1975. Its complete scope must await further development in future controversies.

There are, however, certain basic principles that have emerged and are now galvanized into general guidelines not likely to undergo significant dilution.

All discussion must start with the realistic recognition that commercial speech enjoys a qualified protection under the First Amendment and under Article I, Section 19 of the Constitution of Tennessee. Neither constitutional provision is subject to analysis in terms of absolutes; all basic rights of free speech are subject to reasonable regulation. For instance, no one would dispute the right of a minister, rabbi, or priest to proclaim his religious beliefs and exhort others to their acceptance; yet even this right is subject to a reasonable regulation. If it were otherwise, a man of faith would be permitted to interfere with other religious services or even to disrupt the orderly process of civil government. Time, place, and manner regulations come into play to regulate a solemn and sacred constitutional privilege. Admittedly, such regulation must not single out speech of a particular content for special treatment and must be scrutinized more closely than a restriction not based upon content. Virginia Board of Pharmacy makes this clear.

The critical question then must be the nature of permissible regulation. All such regulations must serve an important and substantial public interest, wholly divorced from the suppression of free speech. Moreover, restrictions on First Amendment freedoms must be no greater than is essential to the furtherance of that interest. United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

All public expression may be subject to reasonable regulation if a legitimate public interest is served. The citizen’s first amendment interest must be weighed against the asserted governmental interest.

We are instructed by Virginia Board of Pharmacy that commercial speech may be regulated as to time, place, and manner, provided the restrictions (1) are justified without reference to the content; (2) serve a significant governmental interest and (3) leave open ample alternative channels of communication. And we are instructed by Erznoznik that even a time, place, and manner regulation may not discriminate solely on the basis of content, and that speech may not be restrained because of “its message, its ideas, its subject matter, or its content.”

VI.

Conclusions

Although this ordinance is entitled to a presumption of validity, State, ex rel. Balsinger v. Town of Madisonville, 222 Tenn. 272, 435 S.W.2d 803 (1968) which might rescue it from some of its vague and overly broad provisions, it has other problems that may place it beyond the legitimate reach of the presumptive lifeline.

If it were not for definitional problems (see Section II, supra), so much of Section 2 of the ordinance as is designed to prevent the throwing or depositing of any handbill, irrespective of content, upon any sidewalk, street, or other public place would be constitutional as a content neutral, reasonable time, place, and manner regulation designed to prevent litter. But when read in context, the apparent exemption of ideological speech destroys its content neutrality.

The City of Brentwood was organized, and operates under, the Uniform City-Manager Commission. Sec. 6-1801, et seq., T.C.A. By § 6-1901(22), the city is authorized:

To define, prohibit, abate, suppress, prevent, and regulate all acts, practices, conduct, business, occupations, callings, trades, uses of property and all other things whatsoever detrimental, or liable to be detrimental, to the health, morals, comfort, safety, convenience, or welfare of the inhabitants of the city, and to exercise general police powers. (Emphasis supplied)

This broad statutory conference of power does nothing more than codify the general rules relating to the police powers inhering in Tennessee municipalities.

The right to exercise the police power is an attribute of sovereignty, necessary to protect the public safety, health, morals, and welfare, and is of vast and undefined extent. Davis v. Allen, 43 Tenn. App. 278, 307 S.W.2d 800 (1957). In exercising this right, municipalities have wide discretion and broad powers. Porter v. Paris, 184 Tenn. 555, 201 S.W.2d 688 (1947).

Regulating litter on city streets and in public places is a permissible and praiseworthy public purpose. An ordinance designed to accomplish this objective “furthers an important or substantial governmental interest,” but its purpose must be “unrelated to the suppression of free expression.” United States v. O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679.

So much of Section 2 of the ordinance as bars the distribution or sale of “any commercial handbill in any public place” violates the First Amendment to the Constitution of the United States and Article I, Sec. 19 of the Constitution of Tennessee. The First Amendment embraces not only the right to speak, to publish, and to print, but also the right to circulate, to receive, and to read. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Further, this portion of the ordinance is not content neutral.

Section 3, which prohibits throwing or depositing any commercial or non-commercial handbill in or upon any “temporarily or continuously uninhabited or vacant” premises is void for vagueness. It contains no standards, no criteria and no guidelines. Temporary vacancy can range from the absence of a housewife on a grocery shopping mission to an extended but temporary absence on vacation. There is no yardstick by which it can be determined that premises are continuously uninhabited. A view of a house from its exterior furnishes no indication of habitation or the lack thereof. Indeed, absent an accumulation of handbills and the like, one house looks like another from a standpoint of occupancy.

It is a constitutional imperative that laws provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited. “Vague laws may trap the innocent by not providing fair warning.” Grayned v. City of Rockford, 408 U.S. at 108, 92 S.Ct. at 2299.

We further hold that Section 3 of the ordinance is void in the context of an anti-litter ordinance because of the exemption stated therein, in favor of mail, newspapers, religious, and political material. The exemption of mail, which is deposited in receptacles erected for that purpose, and of newspapers, which are delivered pursuant to contract, causes us no concern. The exemption of ideological speech was no doubt prompted by worthy motives; however, such an exception obliterates content neutrality and subjects the entire prohibition to the objection that speech is being restricted or prohibited on the basis of “its message, its ideas, its subject matter, or its content.” Police Department v. Mosley, 408 U.S. at 95, 92 S.Ct. at 2290. Restrictions, regulations, and exemptions so based are constitutionally offensive whether they be evil or benign.

Section 4 of the ordinance is in precisely the same category. It not only prohibits throwing, depositing, or distributing commercial or non-commercial handbills in or on any private premises, but goes further, by exempting ideological matter, thereby destroying the content neutrality of the entire section.

With respect to each of these sections containing exemptions in favor of ideological speech, we point out that it is indisputably true that religious tracts or political leaflets cast upon a citizen’s property constitute litter to precisely the same extent as circulars advertising groceries. Thus the exemption not only destroys the indispensable content neutrality of the ordinance, but leaves it standing upon a precarious footing from a standpoint of its stated purposes.

We hold that this ordinance violates both the First Amendment to the Constitution of the United States and Article I, Section 19 of the Constitution of the State of Tennessee.

Reversed.

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

APPENDIX

ORDINANCE NO. 77-17

(CAPTION OMITTED)

SECTION 1.

For the purpose of this Section, as amended, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words used in the singular number include the plural number. The word “shall” is always mandatory and not merely directory.

(1) Commercial handbill is any printed or written matter, any sample or device, dodger, circular, leaflet, pamphlet, paper, booklet, or any other printed or otherwise reproduced original or copies of any matter of literature.
(a) Which advertises for sale any merchandise, product, commodity, or thing; or
(b) Which directs attention to any business or mercantile or commercial establishment, or other activity, for the purpose of either directly or indirectly promoting the interest thereof by sales; or
(c) Which directs attention to or advertises any meeting, theatrical performance, exhibition, or event of any kind, for which an admission fee is charged for the purpose of private gain or profit; or
(d) Which, while containing reading matter other than advertising matter, is predominantly and essentially an advertisement, and is distributed or circulated for advertising purposes, or for the private benefit and gain of any person so engaged as advertiser or distributor.
(2) Newspaper is any newspaper of general circulation as defined by general law, any newspaper duly entered with the Post Office Department of the United States, in accordance with federal statute or regulation, and any newspaper filed and recorded with any recording officer as provided by general law; and, in addition thereto, shall mean and include any periodical or current magazine regularly published with not less than four (4) issues per year, and sold to the public.
(3) Non-commercial handbill is any printed or written matter, any sample, or device, dodger, circular, leaflet, pamphlet, newspaper, magazine, paper, booklet, or any other printed or otherwise reproduced original or copies of any matter of literature not included in the aforesaid definitions of a commercial handbill or newspaper, but excluding religious or political printed material.
(4) Person is any person, firm, partnership, association, corporation, company or organization of any kind.
(5) Private premises is any dwelling, house, building, or other structure, designed or used either wholly or in part for private residential purposes, whether inhabited or temporarily or continuously uninhabited or vacant, and shall include any yard, grounds, walk, driveway, porch, steps, vestibule or mailbox belonging or appurtenant to such dwelling, house, building, or other structure.
(6) Public place is any and all streets, sidewalks, boulevards, alleys or other public ways and any and all public parks, squares, spaces, grounds, and buildings.

SECTION 2. No person shall throw or deposit any commercial or noncommercial handbill in or upon any sidewalk, street or other public place with(in) the corporate limits of the City of Brentwood, Tennessee. Nor shall any person hand out or distribute or sell any commercial handbill in any public place. Provided, however, that it shall not be unlawful on any sidewalk, street, or other public place within the corporate limits of the City of Brentwood, Tennessee, for any person to hand out or distribute, without charge to the receiver thereof, any noncommercial handbill to any person willing to accept it.

SECTION 3. No person shall throw or deposit any commercial or noncommercial handbill in or upon any private premises which are temporarily or continuously uninhabited or vacant.

(a) Exemption for mail, newspapers, religious and political material. The provisions of this section shall not apply to the distribution of mail by the United States, newspapers (as defined herein), and religious and political material except that newspapers and religious and political material shall be placed on private property in such a manner as to prevent their being carried or deposited by the elements upon any street, sidewalk or other public place or upon private property.

SECTION 4. No person shall throw, deposit or distribute any commercial or noncommercial handbill in or upon private premises, except by handing or transmitting any such handbill directly to the owner, occupant, or other person then present in or upon such private premises.

(a) Exemption for mail, newspapers, religious and political material. The provisions of this section shall not apply to the distribution of mail by the United States, newspapers (as defined herein), and religious and political material.

      . The pertinent portions of the ordinance appear as an appendix to this opinion.

      . This decision casts doubt upon the continuing relevance of Breard v. Alexandria, supra, relied upon by the Chancellor. See Sec. III, supra.


source: Caselaw Access Project

author: ALLISON B. HUMPHREYS, Special Justice.

license: Public Domain

text:
    TERMINAL TRANSPORT COMPANY, INC., Plaintiff-Appellant, v. CLIFFSIDE LEASING CORPORATION, Clifton B. Smith, II and Kenneth P. Kemper, Defendants-Appellees.
    Supreme Court of Tennessee.
    Feb. 12, 1979.

      Dan E. McGugin, Jr. Watkins, McGugin, McNeilly & Rowan, Nashville, for plaintiff-appellant.
    Gary E. Crawford, Thomas H. Peebles, III, Trabue, Sturdivant & DeWitt, Nashville, for defendants-appellees.
   ALLISON B. HUMPHREYS, Special Justice.

Terminal Transport Company, a common carrier of freight by tractor-trailer trucks, operating in several states, brought suit in chancery against Cliffside Company and others, (the others are no longer in the suit) to recover $350,000 that Terminal had paid in settlement of a personal injury action brought against it in an Alabama federal court by Terry Mallett. Mallett had been severely injured when his car was struck from the rear by a truck tractor that belonged to Terminal and was being driven at the time by Kenneth Kemper, a Cliffside mechanic. Cliffside was the operator of a truck stop which, pursuant to a written memorandum, made necessary minor mechanical repairs to Terminal’s trucks, fueled its tractors from Terminal’s tanks that were maintained on its property, and furnished other necessary service.

The Alabama suit was brought against Terminal, which was subject to service of process in that jurisdiction, and against Kemper, who was not subject to such process and who in fact was never served. Cliffside was not made a defendant in that suit. Terminal, as stated, settled the case for $350,000 and brought this suit in Davidson Chancery Court to recover from Cliff-side on the theories that it was due indemnity as a matter of contract and as a matter of common law. (The question of liability to indemnify by contract is no longer before the Court, both the Chancellor and the Court of Appeals having held that there was no contract, and no error having been assigned here on that holding.) Cliffside denied liability and filed a third party claim against Terminal’s insurer, Liberty Mutual Insurance Company, alleging that if it was liable to Terminal, it was an additional insured under Liberty’s policy and Liberty had to hold it harmless against Terminal’s claim.

The Chancellor held that as a prerequisite for recovery of common law indemnity, the party seeking indemnity must actually be liable for the sum paid the third party. The Chancellor found that Terminal was not, in fact, liable to the third party, and accordingly was not entitled to indemnification by Cliffside.

The Court of Appeals agreed with the Chancellor that actual legal liability for the payment for which indemnity is sought must be shown, but held that the peculiar facts of this case presented an exception to the general rule, saying,

where the settler is prima facie liable and where the claimed indemnitor refuses to assist in defense by furnishing available evidence which would exonerate the settler, then such prima facie liability is sufficient to support a recovery for indemnity.
In other words, Cliffside and its employee, Kemper, had within their possession evidence which would have overcome the prima facie liability of Terminal. If they had furnished such evidence, Terminal would have been exonerated, but the same evidence would have fixed liability upon Cliffside. Cliffside chose to withhold such evidence to the detriment of Terminal and to the benefit of itself. Cliffside is therefore estopped to deny that Terminal sustained sufficient liability to support indemnity.

Certiorari was granted to consider this exception to the rule and other assignments of error by Cliffside.

The factual situation out of which all of this grew is as follows: On the night of September 26, 1965, one of Terminal’s tractor-trailers pulled into Cliffside’s truck stop for servicing and for repair of the alternator. It was turned over to the truck stop mechanic then on duty, Kenneth E. Kem-per. Kemper was unable to repair the alternator and so reported to one Lawson, a mechanic at Terminal’s Atlanta facility. Lawson, according to his testimony, instructed Kemper to get in touch with Terminal’s Nashville facility to see whether there was a serviceable tractor there, and if so, to have the facility drive the tractor out to Cliffside. According to Kemper, Lawson instructed him to swap out the tractor, which Kemper understood meant for him to drive it to Terminal’s Nashville service facility, and he was attempting to do this when he ran into the rear of a small automobile, seriously and permanently injuring Tony Mallett. It should be noted at this point that there can be no question but that Kemper was the servant of the master, Cliffside, and at the time was discharging the duties imposed on Cliffside by its contract with Terminal. Also, uncontradicted, and actually stipulated, is the fact that Kemper was negligent in his operation of the truck tractor. Moreover, it is uncontra-dicted that Mallett, who was 18 at the time, suffered most serious and grievous, painful and permanent wounds and injuries; he was left a paraplegic, paralyzed from the waist down, with a lifetime in a wheelchair to look forward to. It also appears that the truck tractor bore Terminal’s name on it, bore Terminal’s identification numbers, and as Terminal’s property was licensed for operation in its name. It has been further stipulated that the settlement Terminal effected with Mallett was, in view of Mal-lett’s injuries, a most advantageous settlement and one that should have been made.

Cliffside assigns error to the holding that Terminal is entitled to common law indemnity from Cliffside, and for the failure to remand the case to the Chancery Court for consideration of Cliffside’s third party claim against Liberty Mutual Insurance Company-

The first assignment is predicated upon several propositions of law which, for convenience, we shall consider inversely to their arrangement in the brief.

The first proposition is that Terminal is not entitled to indemnity because no benefit was conferred on Cliffside by Terminal paying off the judgment in the Alabama suit.

While it is true the Alabama judgment was paid by Terminal without securing the release of Cliffside, this does not mean that the settlement of that suit conferred no benefit on Cliffside. The rule in Tennessee is that if a judgment is obtained against one of two or more persons who commit a tort, and that judgment is satisfied, this may be pleaded as a good defense to an action brought by the same plaintiff against any of the others. This proposition is discussed in Caruthers, History of a Lawsuit, § 265 (8th Ed. 1963), where several Tennessee cases are cited in support of the text.

Cliffside’s second proposition is that Terminal had to show that it had actual legal liability to the injured third party it paid in order to recover against Cliffside as an indemnitor.

Under the facts and law, as we see it, Terminal, on the face of the record, had enough liability to the third party, Mallett, to satisfy this rule. According to T.C.A. § 59-1037, the proof that Terminal owned the tractor created a prima facie case of liability, because that statute creates the presumption that the truck tractor was being operated with Terminal’s authority, consent, and knowledge, and for its use and benefit within the course and scope of the operator’s employment.

T.C.A. § 59-1038 provides that proof of the registration of the truck tractor in Terminal’s name was prima facie evidence that the vehicle was operated by Kemper for Terminal’s use and benefit and within the course and scope of his employment.

While it is the law, as held by the Chancellor and the Court of Appeals, that these presumptions can be displaced by evidence to the contrary, Yellow Cab, Inc. of Morristown v. York, 58 Tenn.App. 177, 427 S.W.2d 854 (1967), it is also true that the determination as to whether these presumptions have in fact been displaced is a question for the jury. And, bearing in mind the totality of the circumstances confronting Terminal, (1) that its defense was one that rested upon its acceptance by the jury; (2) that after Clifton B. Smith, II, President of Cliffside, and Kenneth B. Kemper had agreed to attend the trial in Alabama and testify for Terminal, they declined to go through with their agreement at the last minute, leaving Terminal with only the benefit of the depositions of these parties taken in the first instance by the Alabama plaintiff, Mallett; and (3) Mallett’s terrible injuries and his total freedom from fault, more than enough to cause the most flinthearted jury to strive in every way possible to decide in his favor and, undoubtedly, in a much larger amount than that by which the case was finally settled; we think the conclusion is inescapable that the jury would have found Terminal liable. Thus, there did exist such liability on Terminal’s part to satisfy the rule. The question of the existence of liability must be answered by probabilities as they existed at the time of settlement, not by consideration alone of the legal effect of facts. This latter course leaves out the part the jury plays and the effect of its verdict. 41 Am.Jur.2d, Indemnity § 33, p. 723; Wisconsin Barge Line, Inc. v. Barge Chem 300, 546 F.2d 1125 (5th Cir. 1977); see also Tankrederiet Gefion, A/S v. Hyman-Michaels Co., 406 F.2d 1039 (6th Cir. 1969).

This brings us to a consideration of Cliff-side’s third proposition: that an indemnitee such as Terminal is bound by all findings of fact without which the original judgment against it could not have been rendered, and a suit for indemnity cannot be maintained if one of those findings rested on a fact fatal to his claim for indemnity. Annot. 24 A.L.R.2d 329 (1952). This annotation summarizes the general rule on this aspect of the law of indemnity as follows: § 2. General Rule.

Irrespective of whether a judgment obtained by an injured person against an indemnitee is conclusive upon the indem-nitor under the general rules governing the conclusiveness of judgments, the authorities which have considered the subject of this annotation as a distinct question hold unanimously that an indemni-tee, in his action to recover from the indemnitor the amounts paid in satisfaction of a judgment obtained against him by an injured person, is bound by all findings without which the judgment could not have been rendered, and that, if the judgment in the earlier action rested on a fact fatal to recovery in the action over against the indemnitor, the latter action cannot be successfully maintained. 24 A.L.R.2d at 330.

Cliffside invokes this proposition, claiming that because Mallett’s suit against Terminal was predicated upon the doctrine of respondeat superior, the judgment in favor of Mallett inferentially establishes that Kemper was Terminal’s agent or servant. Thus, since it was uncontradicted and admitted that Kemper was the employee of Cliffside and was performing Cliffside’s business at the time of the collision, Terminal and Cliffside were at most joint tort-feasors.

Of course, Cliffside and Terminal being joint tort-feasors, Terminal is not entitled to indemnification; the remedy in Tennessee in cases involving joint tort-fea-sors is restitution by way of contribution.

The right to contribution rests upon the quality of the negligence of the tort-fea-sors; the right of one to recover contribution from the other depends upon the nature of his negligence as compared with that of the other tort-feasor.

The exception to the general rule that there can be no contribution between joint tort-feasors was first recognized in Tennessee in the case of Cohen v. Noel, 165 Tenn. 600, 56 S.W.2d 744 (1933). In that case a demurrer had been sustained to a declaration that sought indemnification or contribution. Chief Justice Green affirmed the general rule that tort-feasors equally guilty of negligence or wrongdoing cannot have contribution, one from the other, but held that this general rule was subject to the quite reasonable exception that, where the negligence of one tort-feasor was active while that of the other tort-feasor was passive, the tort-feasor guilty only of passive negligence could have contribution from the other. This proposition has been elucidated upon in subsequent cases. E. g., Cohen v. Noel, 21 Tenn.App. 51, 104 S.W.2d 1001 (1937), (which involved the same cause of action as the Supreme Court case). In Davis v. Broad Street Garage, 191 Tenn. 320, 232 S.W.2d 355 (1950), the Cohen exception was discussed and elaborated upon, and Justice Chambliss’ opinion in Graham v. Miller, 182 Tenn. 434, 187 S.W.2d 622 (1945) was approved. In Graham, Mr. Justice Cham-bliss quoted from Union Stock Yards Co. of Omaha v. Chicago, B. & Q. R. Co., 196 U.S. 217, 25 S.Ct. 226, 49 L.Ed. 453, 2 Ann.Cas. 525 (1905) the following:

“[t]hat, notwithstanding the negligence of one, for which he has been held to respond, he may recover against the principal delinquent where the offense did not involve moral turpitude, in which case there could be no recovery, but was merely malum prohibitum, and the law would inquire into the real delinquency of the parties, and place the ultimate liability upon him whose fault had been the primary cause of the injury.” (Emphasis supplied.) 182 Tenn. at 439, 187 S.W.2d at 624-5.

The Davis opinion also quotes with approval the following from Prosser, Torts, at 1114:

“There is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone, according to the accident of a successful levy of execution, the plaintiff’s whim or malevolence, or his collusion with the other wrongdoer, while the latter goes scot free. Half a century of vigorous denunciation has had its effect in the introduction of a number of ‘exceptions’ which, to some extent, have restored in America the original English rule.” 191 Tenn. at 325-26, 232 S.W.2d at 357-8.

To make certain that there be no doubt about the law on this subject in Tennessee, on petition to rehear, in response to a dissent based upon the dissenter’s interpretation of Cohen v. Noel, 165 Tenn. 600, 56 S.W.2d 744 (1933), the Davis Court declared:

Upon reconsideration and further thought the majority of this Court hold that the rule of law expressed in the majority opinion should be the law of Tennessee and not just applicable to the facts of the instant case. We feel that justice, right and equity demand this conclusion. 191 Tenn. at 330, 232 S.W.2d at 359.

Having in mind our commitment to allow contribution as a matter of policy under the common law, and having in mind that Terminal’s negligence is based on a rebuttable presumption and cannot compare in any degree with the negligence of Cliff-side, which is stipulated, we think Terminal makes out a case for contribution.

The argument that since the liability of both Cliffside and Terminal is based upon respondeat superior, their negligence is equal, is unacceptable. The quality of the negligence is not equal for the purpose of determining the application of the Davis v. Broad Street Garage principles. In a case for contribution the real inquiry is which of the two parties is primarily responsible for the injuries. The answer in this case has to be that Cliffside is that party.

Under our rule, which allows consideration of the quality of the negligence of the parties, we must hold that in vicarious negligence cases the quality of negligence depends upon who is the real master of the servant.

Though only remotely analogous, it would seem that since the law, in order to do justice, allows an inquiry into the quality of the servant’s negligence, and thereon fixes liability of the master for punitive damages, we are authorized, in order to do justice, to inquire into the quality of the vicarious relationships involved and to determine whether one is actual and real, and so active for the purposes of contribution, while the other is not of that quality. To hold otherwise, we would have to say that there can be no contribution between vicarious joint tort-feasors, virtually emasculating the rule without good reason.

The case is remanded to the Chancellor to determine the amount of contribution Cliff-side shall make to Terminal and whether or not Cliffside is an additional insured under Terminal’s insurance policy with Liberty Mutual Insurance Company.

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

      . Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 24 A.L.R.2d 319 (1951), after stating the general rule as we have above, the opinion goes on:
      It being clear, then, that plaintiffs own negligence as a contributing factor in the accident is established by the record in the Ohio case, and since therefore it cannot recover indemnity from defendant on any theory of primary and secondary liability or of comparative degrees of negligence, we come to the remaining question whether it can obtain contribution from defendant as a joint tort-feasor. Had the accident occurred in Pennsylvania such a right of recovery undoubtedly would exist. (Citations omitted) (Emphasis in last sentence supplied) 77 A.2d at 374.

      . The complaint is broad enough to authorize an award on this ground. Neither indemnity nor contribution is mentioned therein. Recovery is sought on the facts. The prayer is for a decree for $350,000.00 and for general relief.


author: FONES, Justice. HENRY, Chief Justice.

text:
    Allen COLYER, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Feb. 19, 1979.

      John A. Armstrong, Greeneville, for petitioner.
    Brooks McLemore, Atty. Gen., Robert L. DeLaney, Asst. Atty. Gen., Nashville, for respondent.
   OPINION

FONES, Justice.

We granted the writ of certiorari to consider the single issue of whether a juvenile’s involuntary statement which meets all constitutional requirements, but was inadmissible in juvenile court because of violations of T.C.A. §§ 37-215 and 37-227, is admissible in state criminal courts.

Defendant was convicted of rape and sentenced to ten years in the penitentiary. He was arrested at the Colyer home about 9:00 p. m. on the day after the offense had been committed, taken to the sheriff’s office, advised of his Miranda rights, as evidenced by a statement signed by defendant that he understood those rights, was willing to make a statement and answer questions and did not request a lawyer. The questioning of defendant began at about 10:45 p. m., and his statement was reduced to writing and signed about 1:30 a. m. The questioning was not continuous, and his mother was present during about forty-five minutes of the interrogation. Defendant indicated to one of the officers that he had something to say out of the presence of his mother, and the remainder of the interrogation took place out of her presence.

The statement that he signed at about 1:30 a. m. cannot be said to be either exculpatory or inculpatory. It confirms that he had a knife and a shotgun and accosted the victim from a bush in her parents’ yard. It is ambiguous as to the use he made of the knife, the shotgun and bailing twine in persuading the victim to go to a barn across the road and indulge in intercourse. Defendant testified at the trial and admitted intercourse but claimed it had been consensual. Defendant’s statement was not introduced by the State in its proof-in-chief and was used only on cross examination for impeachment purposes. The trial judge evidently accepted defendant’s argument that the State could not use the statement as direct evidence, relying on this Court’s opinion in State v. Strickland, 532 S.W.2d 912 (Tenn.1975), cert. den. 429 U.S. 805, 97 S.Ct. 38, 50 L.Ed.2d 65 (1976).

The issue before us in Strickland was limited to the admissibility at a transfer hearing in juvenile court and on appeal at a de novo trial in circuit court of confessions obtained in violation of T.C.A. § 37-215(a). Applicable to Strickland, and at the time of this offense, T.C.A. § 37-215(a) effectively prohibited detention and questioning immediately after taking a juvenile into custody. The mandate of the statute was that “directly with all reasonable speed”, the child should be released to his parents or brought before the juvenile court, where, implicitly, the juvenile court judge might entertain a request for questioning and prescribe appropriate conditions therefor. The Legislature amended the statute, effective March 29, 1976, by substituting “within a reasonable time” for “with all reasonable speed” and eliminated the last sentence of T.C.A. § 37-215(a)(2), referring to temporary detention and questioning. Public Acts of 1976, ch. 745, § 1.

In Strickland, the juveniles were held in custody about fourteen hours, prior to delivery to the jurisdiction of the juvenile court. This Court held that the statements taken during the fourteen hour detention violated T.C.A. § 37-215(a) because of the prohibition in T.C.A. § 37-227, and could not be used against the juveniles either at the transfer hearing or at the de novo trial in circuit court, upon appeal of the transfer hearing.

Unchanged since the enactment of Public Acts of 1970, ch. 600, T.C.A. § 37-227(b) provides, in part, that:

“An extra-judicial statement, if obtained in the course of violation of this chapter or which would be constitutionally inadmissible in a criminal proceeding, shall not be used against him.”

It is our opinion that the per se exclusion of extra-judicial statements, obtained in violation of this chapter dealing exclusively with juvenile courts, is limited in scope to proceedings in that court. We base that conclusion upon the express language of T.C.A. §§ 37-227 and 37-234, augmented by the Legislative purpose expressed in the 1970 revision of Title 37, ch. 2.

By enactment of Public Acts of 1970, ch. 600, the Legislature repealed in its entirety T.C.A. Title 37, ch. 2, entitled “Juvenile Courts”, and substituted an entirely new chapter, dealing comprehensively and exclusively with juvenile courts. The purposes of the Act, insofar as relevant here, are found in the caption and in section 1. The caption provides in part that it is, “An Act to provide for the disposition of delinquent, unruly, dependent, and neglected and abandoned children, . . . including the definition, jurisdiction and procedures of a juvenile court in each county of the state; . . . ” Section 1, subsection 4 of the 1970 Act reads as follows:

“(4) To provide a simple judicial procedure through which this Act is executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced; ”

Under the provisions of the 1970 Act, a child, who is believed upon reasonable grounds to have committed any crime under the laws of this State, may be transferred to the criminal court to be dealt with as an adult, but only after a hearing in the juvenile court and after findings of fact on issues prescribed in T.C.A. § 37-234. When the juvenile court makes an adjudication to transfer the child, the statute expressly provides that, “The disposition of the child shall be as if he were an adult . . Id.

It would be absurd to contend that any adult charged with a crime under the laws of this State is entitled to the benefits of T.C.A. § 37-227(b) which begins with the phrase, “A child charged with a delinquent act ” It logically follows that where the statute mandates that a child be tried as if he were an adult, he may no longer have the benefit of statutes expressly applicable to children. Adults are not charged with “delinquent acts.” They are indicted for specific statutory crimes. A charge of delinquency is brought exclusively in the juvenile courts against children. A transfer hearing pursuant to T.C.A. § 37-234 is initiated by “a petition . alleging delinquency based on conduct which is designated a crime or public offense under the laws ... of this State . . .” (emphasis added).

T.C.A. § 37-227 expressly bestows upon children charged with a delinquent act basic rights which were not uniformly recognized or granted in the juvenile courts of this State prior to the 1970 Act, but were then enjoyed by adults on trial in the criminal courts.

We hold that neither T.C.A. § 37-215 nor § 37-227 apply upon the trial of a child transferred from juvenile court to be tried as an adult in the criminal courts of this State.

The result reached by the Court of Criminal Appeals is affirmed for the reasons stated herein.

COOPER and HARBISON, JJ., concur.

HENRY, Chief Justice.

The only significant question presented in this criminal action is the admissibility on cross-examination, for purposes of impeachment, of a statement made by a juvenile during a custodial interrogation while detained in violation of § 37-215, T.C.A. The majority holds the statement to be admissible. I respectfully disagree.

I.

Procedural History of the Case

The criminal court origin of this case was a presentment charging petitioner with the commission of the crime of rape.

On the day of his first trial, September 23, 1976, the trial judge sustained a motion in limine directing that the District Attorney General, his staff, law enforcement officers, and witnesses for the State ask no questions, make no references, give no responses and make no comments as to a written statement, or any oral statements, made by petitioner; and that no questions relating thereto be asked on cross-examination.

The first trial was conducted on 23 September 1978 and ended in a mistrial. On 22 April 1977, the trial judge sustained the State’s motion to use defendant’s statement for the purpose of impeachment. The trial was conducted on 2 May 1978 and resulted in a verdict of guilty, with punishment fixed at ten years in the state penitentiary. Petitioner was subjected to a close, rigid, and effective cross-examination as to the contents of his statement, over the vigorous and continuing objection of his counsel. Further, the State on rebuttal called two witnesses to further establish the details of the statement.

II.

The Circumstances under which the Statement was taken

Petitioner was taken into custody on 25 February 1976, at approximately 9:09 p. m. He was taken to the sheriff’s office and questioned from about 10:45 p. m. until 1:30 a. m. the following day. Petitioner’s father, who was confined to a wheel chair, came to the sheriff’s office but waited outside. His mother also came and was present during a small portion of the interrogation. The statement was reduced to writing and signed about 1:30 a. m. Prior to that time he had not been released to his parents nor had he been brought before the juvenile judge. He was fully informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). His statement was wholly voluntary and his signed waiver of rights appears in the record. This is not a Miranda case. There is no suggestion of any misconduct on the part of the participating law enforcement officers, except to the extent implicit in the unlawful detention of a juvenile, sixteen years of age.

III.

Legality of the Detention

§ 37-215, T.C.A., as it existed at the time of the interrogation, and prior to the adoption of Ch. 745, Public Acts of 1976, read, in pertinent part, as follows:

(a) A person taking a child into custody, shall directly with all reasonable speed:
(1) release the child to his parents, guardian or other custodian upon their promise to bring the child before the court when requested by the court, unless his detention or shelter care is warranted or required under § 37-214; or (2) bring the child before the court or deliver him to a detention or shelter care facility designated by the court or to a medical facility if the child is believed to suffer from a serious physical condition or illness which requires prompt treatment. He shall promptly give notice thereof, together with a reason for taking the child into custody, to a parent, guardian, or other custodian and to the court. Any temporary detention or questioning of the child necessary to comply with this subsection shall conform to the procedures and conditions prescribed in this chapter and rules of court.

These mandatory provisions of the law were ignored. Petitioner was neither released to his parents nor brought before the court nor delivered to a detention or shelter care facility designated by the court. In all respects he was detained in violation of Chapter 600, Public Acts of 1970, carried forward into our Code as § 37-201, T.C.A., et seq.

What is the effect of this unlawful detention? § 37-227(b), T.C.A. provides the answer:

A child charged with a delinquent act [an act designated as a crime, § 37-202] need not be a witness against or otherwise incriminate himself. An extra-judicial statement, if obtained in the course of violation of this chapter or which would be constitutionally inadmissible in a criminal proceeding, shall not be used against him. (Emphasis supplied).

It is no answer to say, as does the majority, that he was tried as an adult and “[i]t would be absurd to contend that any adult charged with a crime” is entitled to the benefits of § 37-227(b). The detention of this petitioner occurred when he was a “child.” The subsequent transfer to the Criminal Court for trial as an adult does not alter this fact. Deliberate defiance of the applicable law following his apprehension operates to undermine the basic proceedings which resulted in his trial in the Criminal Court.

In State v. Strickland, 532 S.W.2d 912, 917 (1976), we said:

The statute requires juveniles to be taken before the court “directly with all reasonable speed.” The police did not comply with the requirement, and the confessions obtained in violation of that section may not be used against the juveniles. T.C.A. § 37-227(b).
The Court of Appeals correctly held that the confessions were obtained in violation of T.C.A. Section 37-215(a) and were not admissible before the Juvenile Court or the Circuit Court. (Emphasis supplied.) 532 S.W.2d at 918.

It is true that Strickland involved a transfer hearing in the Juvenile Court. This is of no consequence. The commandment of § 37-227(b), T.C.A., “[a]n extra-judicial statement, if obtained in the course of violation of this chapter . . . shall not be used against him” is not susceptible to any erosive construction that would limit its sweep to procedures in the juvenile court, or that would allow its use for any purpose. Any such interpretation is inconsistent with the plain language of the statute and at variance with our holding in Strickland.

Moreover, it affronts fundamental fairness — with or without the statute, and irrespective of Strickland, to take the statement of a sixteen-year-old boy, under these circumstances, and use it against him in a criminal proceeding even though by process of statutory metamorphosis he has somehow been transformed into a man. A boy continues to be a boy until he becomes a man. Here, we deal with a boy, and, in my judgment we are dealing with him unfairly.

Conclusion

I would reverse because of the error of the trial judge in permitting the extra-judicial statement of the petitioner to be used on cross-examination, and remand for a new trial.

I am authorized to state that BROCK, J., joins in this dissent.

      . Prior statutes provided that juvenile court had no jurisdiction of a child, if upon investigation the juvenile court judge concluded there was probable cause to believe that the child was guilty of murder in the first or second degree or rape. For all other crimes, the juvenile court had the discretion to transfer a child to criminal court for trial, upon a finding that he was incorrigible and incapable of reformation or dangerous to the welfare of the community. See T.C.A. §§ 37-230, 37-231, prior to repeal by Public Acts of 1970, ch. 600. No procedural safeguards or basic rights, etc. were provided by Title 37, ch. 2, prior to the 1970 Act.

      . Public Acts of 1976, ch. 745, § 6 amended T.C.A. § 37-258 by dispensing with a civil appeal from a transfer hearing in juvenile court pursuant to T.C.A. § 37-234 and by providing for an “acceptance hearing” in the criminal court. T.C.A. § 37-215 and § 37-227 would be applicable to that hearing because it is essentially a review of the juvenile court’s action in transferring the child to criminal court to be tried as an adult. It is, of course, no part of the trial as an adult in criminal court.


author: SAMUEL L. LEWIS, Special Judge.

text:
    STATE of Tennessee, Appellant, v. Oddie NELSON and Clara J. Nelson, Appellees.
    Court of Criminal Appeals of Tennessee.
    Oct. 3, 1978.
    Certiorari Denied by Supreme Court Jan. 8, 1979.
    Brooks McLemore, Jr., Atty. Gen., William Oscar Kelly, Asst. Atty. Gen., Nashville, Elmer D. Davies, Jr., Dist. Atty. Gen., Franklin, for appellant.
    Samuel H. Smith, Centerville, for Oddie Nelson.

      J. Wallace Harvill, Centerville, for Clara J. Nelson.
   OPINION

SAMUEL L. LEWIS, Special Judge.

Appellees, Oddie and Clara J. Nelson, were indicted and charged under two (2) separate indictments. One indictment charged that they did carnally know and abuse Rebecca Nelson, a female under 12 years of age, and the other charged that they did carnally know and abuse Sheila Jane Nelson, a female under 12 years of age.

They filed a motion to dismiss each of the indictments, stating that they were indicted under T.C.A. § 39-3705, a general statute, and that if they were to be indicted at all they should have been indicted under T.C.A. § 39-705.

T.C.A. § 39-3705 provides:
“Any person who shall carnally know and abuse a female under the age of twelve (12) years shall, on conviction, be punished by imprisonment in the penitentiary for life or for a period of not less than ten (10) years.”
The pertinent part of T.C.A. § 39-705 is:
“No man shall marry or have carnal knowledge of his mother, his father’s sister, his mother’s sister, his sister, his daughter, the daughter of his brother or sister, the daughter of his son or daughter, his father’s wife, his son’s wife, his wife’s daughter, the daughter of his wife’s son or daughter. * * *. Whoever shall commit any offense mentioned in this section shall be deemed guilty of incest, and shall undergo confinement in the penitentiary for a period not less than five (5) years nor more than twenty-one (21) years.”

Is T.C.A. § 39-3705 a general provision and T.C.A. § 39-705 a special provision so that the defendants may only be indicted under T.C.A. § 39-705?

Where there are two provisions, one of which is special and particular and certainly includes the matter in question, and the other general which, if standing alone, would include the same matter and thus conflict with the special provisions, the special must be taken as intended to be an exception to the general provision, especially where the two provisions are contemporaneous, as the Legislature is not to be presumed to have intended a conflict. State v. Safley, 172 Tenn. 385, 112 S.W.2d 831, 833 (1938). See also T.C.A. § 1-303.

The subject of T.C.A. § 39-705 is marriage or sexual intercourse with a relative within the prohibitive degree of consanguinity. Henley v. State, 489 S.W.2d 53 (Tenn.Cr.App.1972). The subject matter of T.C.A. § 39-3705 is carnal knowledge of a female under the age of 12.

Both statutes are specific to the same degree. The logic behind the general/spe-eific rule, that the specific provision should prevail because the Legislature was more carefully directing its attention to the particular subject matter would not apply.

A father who has carnal knowledge of his daughter under the age of twelve could be indicted under the incest statute or under the statutory rape statute.

T.C.A. § 39-3705 prohibits carnal knowledge and abuse of a female by “any person”. T.C.A. § 39-705 prohibits sexual relations between men relatives and women relatives. It does not prohibit sexual abuse of a daughter by her mother.

The incest statute is not a “special” provision for the reason that if a purported “general” statute concerning statutory rape were to stand alone it would not cover all the matters covered by the incest statute. See Haley v. State, 156 Tenn. 85, 299 S.W. 799 (1927).

The judgment of the trial Court in dismissing the indictments is reversed and these cases are remanded for further proceedings.

BYERS, J., and GERALD L. EWELL, Special Judge, concur.


author: BYERS, Judge. DWYER, Judge,

text:
    Maurice DAVIS, Appellant, STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 26, 1978.
    Certiorari Denied by Supreme Court Feb. 20, 1979.
    Edward G. Thompson, Public Defender, Joe B. Jones and Bruce Kelley, Asst. Public Defenders, Memphis, for appellant.
    William M. Leech, Jr., Atty. Gen., Richard S. Maxwell, Asst. Atty. Gen., Nashville, W. Fred Axely, Asst. Dist. Atty. Gen., Memphis, for appellee.
   BYERS, Judge.

OPINION

The appellant was convicted of grand larceny and sentenced to serve three (3) years in the state penitentiary.

The appellant assigns three (3) errors, contesting the sufficiency of the evidence to support the verdict, and the admission of certain pictures into evidence.

We find the evidence preponderates against the verdict of the jury and reverse the judgment and dismiss the charges against the appellant.

The State’s evidence shows an armed robbery occurred on July 16, 1976, at the Bin-ghampton Service Center in Memphis where the Department of Human Services distributed food stamps to those qualified to receive them. The crime was committed by two (2) men who took money and food stamps from the Center and a gun belonging to a guard. The stolen property was found the following day at the residence of a man named Bobby Jeffries.

Jeffries, along with the appellant, was indicted for armed robbery. We do not know from this record of the disposition of the case against Jeffries.

We are not unmindful of the rule which prohibits us from reevaluating the evidence adduced at trial, State v. Hatchett, 560 S.W.2d 627 (Tenn.1978), or of the rule the jury verdict accredits the State’s witnesses and establishes their theory of the case. Hawkins v. State, 527 S.W.2d 157 (Tenn.Cr.App.1975). We are mindful also of the rule that where the evidence preponderates against the verdict of the jury the judgment cannot stand.

We find in this case, applying all the rules above stated, that the evidence does preponderate against the verdict of the jury.

As our short resumé of the facts indicated, the food stamps, etc., were taken in an armed robbery by two (2) men. This fact was not disputed.

The appellant was indicted for armed robbery. The trial judge charged grand larceny as a lesser included offense and it was on this offense the appellant was convicted. During the course of this armed robbery, several shots were fired one of which pierced the pants leg of one of the employees. The finding of grand larceny and the fixing of the minimum penalty of three (3) years is incongruous in light of the clear evidence the crime of robbery was committed and the weakness of evidence as to the appellant.

Connie Foster, a State’s witness, who was employed at the Food Stamp Center, testified she worked near the entrance of the place robbed. At the Food Stamp Center, people who enter sign their names. She testified the two men who committed the crime entered and signed the names Steve Davis and Maurice Tillman. She testified she knew the appellant and he was not one of these two men.

Elizabeth Miller, the person from whom the food stamps were taken, testified she knew the appellant and he was not present during the robbery.

John Mason, the guard whose gun was stolen, testified he saw one of the men and he was not the appellant.

There was no evidence either direct or circumstantial to show the appellant waited outside the building to drive the two active participants in this crime from the scene.

The substance of the testimony of the witnesses for the State who were present at the scene of the crime was that the appellant was not present and was not actively participating therein.

The State offered a witness, Rubert Wilson, who lived a few blocks from the Center. Wilson testified he gave the appellant and Jeffries a ride — Jeffries to his home on Angeles Street and the appellant to his mother’s home in South Memphis — after the time of the robbery. He said appellant told him they had “got the Food Stamp Office.”

Wilson was arrested for investigation of this offense on the evening of the crime. He remained in jail until Sunday. During this time he gave a statement consistent with this testimony. Subsequent to his release he made a sworn statement saying his original statement was not true. At trial he said his original statement made to police was true.

Wilson was arrested because a car fitting the description of his vehicle was apparently used in the robbery. Wilson told the officer Davis had borrowed his car on this date.

James Carr was called as a State’s witness. He testified he was present when plans were made to rob the Food Stamp Center. He said the appellant was not present when the plans were made. He further testified that a person called Big Man was present during the planning stages, and this person received some of the stolen food stamps. Wilson, the only State’s witness to implicate the appellant, is the person known as Big Man.

In summary, the State presented three witnesses who were present when this crime occurred. Two of the witnesses said they knew the appellant and he was not one of the two men who committed this crime. The third eyewitness said he got a good look at one of the men and this man was not the appellant. The State presented two witnesses who were not shown to be present at the time of the crime but whose testimony dealt with the pre-crime and post-crime activity.

James Carr said the appellant was not present when the crime was planned. He says Wilson was and that Wilson received some of the stolen goods.

Wilson, who lived near the scene of the crime, and whose vehicle fit the description of one apparently seen at the scene of the crime, and who gave conflicting extrajudicial statements, says the appellant said “we got the Food Stamp Office.” These six (6) words constitute the only evidence against the appellant.

The State’s evidence clearly shows the appellant was not actively participating inside the Center where the robbery occurred. The State infers, therefore, the appellant was acting as the wheel man. There is, however, no evidence to support such an inference.

The only hint which we have about a get away vehicle is that it fits the description of a vehicle owned by Wilson.

The evidence against the appellant, at best, is circumstantial. This evidence does not exclude all reasonable hypotheses other than that of guilt. One might more reasonably hypothesize another is guilty if the guilt is to be based on the driving of the active participants to and from the scene of the crime.

The evidence in this case clearly connects Jeffries with this crime. The photographs showing the stolen property in his possession would be admissible against him and against any person who is shown to have aided and abetted him in the commission of the crime. Wilson’s testimony made them admissible. However, the picture and evidence concerning these items did not connect the appellant with Jeffries or strengthen Wilson’s testimony. We cannot say, however, the introduction of these photographs was erroneous.

The introduction of the picture of the automobile was erroneous. There is no evidence to tie this vehicle to Jeffries, the appellant or to the crime. The jury could only speculate this vehicle might have some connection with the crime. If they found it did, such finding would be made without a scintilla of evidentiary support.

DUNCAN, J., concurs.

DWYER, Judge,

dissenting.

I am in respectful disagreement with by brethren when they reversed and dismissed this record.

It is, as recognized by the majority, settled law that the appellant has the burden on appeal to show that the evidence preponderates against his guilt and in favor of his innocence. State v. Sneed, 537 S.W.2d 699, 701 (Tenn.1976). It is further settled law that a jury may in its wisdom draw permissible inferences from the evidence. Gossett v. State, 224 Tenn. 374, 455 S.W.2d 585 (1970). Lastly, it is settled law that it is not the function of the appellate court to reevaluate and reweigh the evidence adduced at the trial. State v. Hatchett, 560 S.W.2d 627 (Tenn.1978). Hence, the jury verdict affirmed by the trial judge has accredited the testimony of the State’s witnesses and has resolved all conflicts in favor of the theory of the State. Hawkins v. State, 527 S.W.2d 157 (Tenn.Cr.App.1975). The latter authority specifically holds that the testimony of the State’s witness, and in particular Rubert Wilson, has been believed by the jury and similarly endorsed by the trial court when it overruled appellant’s motion for a new trial.

While it may be true that the facts here make out a clear-cut case of armed robbery as stated by the majority, the trial court, however, charged the lesser included offense of grand larceny, for which the appellant stands convicted. It is true that the trial court was under no legal obligation to charge on the lesser offense; however, that is no more reversible error than the jury’s prerogative of finding the appellant guilty of larceny rather than armed robbery. Reagan v. State, 155 Tenn. 397, 293 S.W. 755 (1927); Jones v. State, 200 Tenn. 429, 292 S.W.2d 713 (1956); Howard v. State, 506 S.W.2d 951 (Tenn.Cr.App.1973); Craig v. State, 524 S.W.2d 504 (Tenn.Cr.App. 1974); T.C.A. 40-2520; T.C.A. 40-2521. Nor is the charge on the lesser offense any basis for undercutting the conviction.

It is also true that Wilson had given a statement ex curia absolving Davis from his original extrajudicial statement inculpating Davis. It was, however, Wilson’s sworn testimony that appellant on the day of the robbery told him, “. . .we had got the Food Stamp Office.” I think this admission evaluated in the light of the rules governing appellate procedure prevents a reversal of this judgment. Stated in another view, if our rules governing appellate review are viable an appellate court cannot discard the sworn testimony of Wilson and to do so, I think, is tantamount to an absolute reweighing and reevaluation of that testimony. In other words, my brethren have seen fit to discard the testimony of Wilson, as accredited by the jury and approved by the trial court contrary to the standards of appellate review. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963); State v. Grace, 493 S.W.2d 474 (Tenn.1973); State v. Sneed, supra. It is further not the prerogative of the majority to evaluate circumstantial evidence in the light that a hypothesis of guilt has not been removed since it was just as logical to infer from the evidence that someone else was the “wheel” man, for this is a matter for the jury. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856 (1956). The review here is predicated solely and exclusively on the settled rule of law that the evidence must be shown by the appellant to preponderate against guilt and in favor of his innocence, a burden which the appellant bears whether the evidence at trial is direct or circumstantial. State v. Brown, 551 S.W.2d 329 (Tenn.1977).

While concededly the evidence against appellant is not ironclad, it was, however, sufficient for the jury to find guilt beyond a reasonable doubt. In the absence of authority to usurp the powers of the jury and being hindered by an inability to view and hear the witness Wilson, I am disinclined from a cold record to decide, as the majority does, that he was untruthful and hence unbelievable, contrary to the jury’s findings. Ferguson v. State, 138 Tenn. 106, 196 S.W. 140 (1917).

Lastly, while utilizing a jury-type argument approach in rebuttal to the majority position that none of the four witnesses identified appellant at the scene, it is apparent that the robbers may have been masked, which would result in appellant’s non-identification, and therefore, is not, I think, too persuasive. It is also noteworthy that the names signed by the holdup men contained the first and last names of the appellant. In conclusion, as stated, the admission coupled with the names and lastly the fact that appellant did not testify, I think the evidence here does not preponderate against his guilt and in favor of his innocence. Simply put, he has not carried the burden in my view.

I would, under the authorities cited in this opinion, affirm this conviction.

      . This comes from an officer who received the information from someone unidentified in this record.


author: DWYER, Judge.

text:
    Robert A. AVANT, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 7, 1978.
    Certiorari Denied by Supreme Court Feb. 20, 1979.
    Joe B. Jones, Memphis, for appellant.
    William M. Leech, Jr., Atty. Gen., Jennifer Helton Small, Asst. Atty. Gen., Nashville, James F. Arthur, III, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

DWYER, Judge.

This is an appeal from a dismissal without an evidentiary hearing of appellant’s “Petition for Records of Criminal Cases”. The appellant is presently incarcerated in the Penitentiary as a result of convictions for committing the offenses of robbery with a deadly weapon, with resulting punishment of confinement for 25 years; crime against nature, with resulting punishment of confinement for 15 years; and crime against nature, with resulting punishment of confinement for 15 years. The sentences were ordered to be served consecutively. The appellant was convicted in the Criminal Courts of Shelby County on September 28, 1972. His convictions were affirmed by this court on January 28, 1974, in an unpublished opinion released at Jackson styled Willie Joe Key, et al. v. State, with certiorari denied by the Supreme Court on March 4, 1974.

The petition sub judice was filed pro se on April 7,1978, and counsel was appointed by the trial court on April 19, 1978. By agreement of the parties a stipulation of facts was submitted and approved for entry in the cause on May 26, 1978, which substantially stated:

I
“On the 28th day of September, 1972, Petitioner was found guilty of Armed Robbery and two (2) cases by Crime Against Nature. He was sentenced by a jury to twenty-five (25) years, fifteen (15) years and fifteen (15) years respectively. The style of said cases were State of Tennessee v. Robert A. Avant, B-32669, B-32671 and B-32672.
II
“A Motion for New Trial was filed, heard and overruled and an appeal was prayed. A transcript of the proceedings was typed by the official Court Reporter and a Bill of Exceptions and Technical Record was approved by the parties and by the Court.
III
“Subsequent to the appeal being perfected, the entire record was sent to the Court of Criminal Appeals in Jackson, Tennessee. The original record is presently held by the Clerk of the Court of Criminal Appeals in Jackson, Tennessee.
IV
“On January 24, 1974, the judgment of the Trial Court was affirmed as to all cases and the Supreme Court of Tennessee denied Defendant’s Petition for Cer-tiorari.
V
“Since such records are public records, any person seeking information regarding the said records could, by making personal visits to the Clerks’ Offices in Jackson and Memphis, Tennessee, review the entire record and upon payment of the appropriate fees, have copies of all or any part of said records.
VI
“Petitioner, Robert A. Avant, is currently incarcerated and is unable to personally appear in the Clerks’ Offices to inspect the records of his case. He is without funds to pay for copies and/or hire an attorney and for the purposes of this Petition is indigent. (T.R. 59-60)”

The trial court denied the petition without an evidentiary hearing on June 20,1978, and in addition to the above stated stipulation of facts incorporated in the order of dismissal, the trial court made the following findings:

“Petitioner has exhausted his appellate remedies; that there is not now pending any Petition for Post-Conviction Relief nor Petition for Writ of Habeas Corpus with respect to the Petitioner herein; that there is nothing of record to indicate the existence of any meritorious claim upon which a collateral attack upon Petitioner’s conviction might be sustained . . . (T.R. 63)”
The appellant’s sole assignment of error:
“The trial court erred in denying the appellant’s petition for copies of all warrants, indictments, minute entries, paper writings filed with the court, any transcript of trial proceedings as well as appellate proceedings, or, in the alternative, affording the appellant reasonable, personal access to the preexisting files and records because the denial of the petition in effect denies the appellant of (a) adequate, effective and meaningful access to the courts, (b) equal protection of the law and, (c) due process of law within the meaning of the United States Constitution.”

The appellant in admirable candor relates that this court has rejected similar claims as advanced by the appellant here, citing Jones v. State, 3 Tenn.Cr.App. 76, 457 S.W.2d 869 (1970); Dotson v. State, 477 S.W.2d 763 (Tenn.Cr.App.1971); McCracken v. State, 529 S.W.2d 724 (Tenn.Cr.App. 1975). However, he contends that these decisions of this court fail to consider the constitutional right of an inmate to adequate, effective and meaningful access to the courts. With reliance on Rush v. United States, 559 F.2d 455 (7th Cir. 1977). We have been shown no reason to retreat or disagree with the Jones-Dotson-McCracken courts. In the dismissal order sub judice the trial court concluded its findings by relating that there is not now pending any petition for post-conviction relief, nor petition for writ of habeas corpus with respect to the petitioner herein; that there is nothing in the record to indicate the existence of any meritorious claim from which a collateral attack on petitioner’s conviction might be sustained. With the establishment by the legislature of the Post-Conviction Procedure Act, T.C.A. 40-3801 et seq., the appellant has not been denied meaningful access to the court, and in particular as we construe T.C.A. 40-3813 there are two prerequisites placed upon the petitioner: (1) that he file a petition for post conviction relief, and (2) that he is declared an indigent as defined in T.C.A. 40-2014, before the trial court may order any document necessary to further his attack upon his conviction. In rejecting a similar contention the United States Supreme Court in United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976) has this to say about a due process deprivation in similar circumstances:

“[Njeither the Equal Protection Clause of the Fourteenth Amendment, nor the counterpart equal protection requirement embodied in the Fifth Amendment, guarantees ‘absolute equality or precisely equal advantages,’ San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 24, 93 S.Ct. 1278, 1291, 36 L.Ed.2d 16 (1973). In the context of a criminal proceeding they require only ‘an adequate opportunity to present [one’s] claims fairly . . . .’ Ross v. Moffitt, 417 U.S. 600, 616, 94 S.Ct. 2437, 2447, 41 L.Ed.2d 341 (1974).” 426 U.S., at 324, 96 S.Ct., at 2091.

In short, we find no merit in appellant’s assignment. If appellant has a valid claim that his convictions were constitutionally impermissible, the Post Conviction Procedure Act is the proper vehicle for the presentation of that claim. In conclusion, if appellant has a meritorious claim it may be presented in a petition for post-conviction relief and if the trial court finds that a transcript or other documents are necessary to further those claims it may be ordered and furnished the indigent at State expense. The assignment being overruled, the judgment of the trial court in dismissing the petition is affirmed.

O’BRIEN and TATUM, JJ., concur.


author: TATUM, Judge.

text:
    Rickey Alan MOORMAN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 7, 1978.
    Certiorari Denied by Supreme Court Feb. 20, 1979.

      Edward G. Thompson, Public Defender, and Walker Gwinn, Memphis, and William C. Moore, Asst. Public Defenders, Memphis, for appellant.
    William M. Leech, Jr., Atty. Gen., Richard S. Maxwell, Asst. Atty. Gen., Nashville, Thomas Henderson and Carter Myers, Asst. Dist. Attys. Gen., Memphis, for appellee.
   OPINION

TATUM, Judge.

The appellant, Ricky Alan Moorman, was convicted of armed robbery and sentenced to serve 25 years in the state penitentiary. In his assignments of error, he says there is a material variance in the indictment and proof, and that the trial judge erred in not suppressing a confession, in refusing to charge larceny from the person and in failing to permit the jury to determine whether the confession was given freely and voluntarily. The assignments of error are without merit.

On June 9, 1977, the appellant entered Peoples’ Pharmacy in Memphis and purchased a box of Anacin tablets. He returned, grabbed an employee, Ms. Angie Choiniere, from the rear and held a knife to her neck. He then ordered the owner of the pharmacy, Mr. John Moffitt, to give him drugs. After Mr. Moffitt handed drugs to the appellant, he ordered Mr. Mof-fitt to give him money from the cash register and Mr. Moffitt complied. The appellant then demanded more drugs from Mr. Moffitt and Mr. Moffitt again complied. After the appellant cut the telephone cord and required Mr. Moffitt, Ms. Choiniere and another employee to lie down, he left the premises.

All three occupants of the pharmacy identified the appellant in a police lineup the day following the robbery and they also made a positive in-court identification of him. When the appellant re-entered the pharmacy at the time of the robbery, he returned the box of Anacin tablets which he had purchased earlier, and his fingerprints were found on the box. Furthermore, the appellant gave a confession to the robbery. The evidence of his guilt is overwhelming.

In his first assignment, the appellant says that there is a fatal variance between the indictment and the proof because the indictment charged that Ms. Choiniere was the victim of the robbery while the undisputed evidence was that Mr. Moffitt was the victim. He says that Ms. Choiniere was not the owner of the property, nor was she in actual or constructive possession.

The offense is defined by T.C.A. § 39-3901:

39-3901. Robbery — Penalty.—Robbery is the felonious and forcible taking from the person of another, goods or money of any value, by violence or putting the person in fear. Every person convicted of the crime of robbery shall be imprisoned in the penitentiary not less than five (5) nor more than fifteen (15) years; provided, that if the robbery be accomplished by the use of a deadly weapon the punishment shall be death by electrocution, or the jury may commute the punishment to imprisonment for life or for any period of time not less than ten (10) years.

Ms. Choiniere was undoubtedly the victim of the violence and the person put in fear. In Morgan v. State, 220 Tenn. 247, 251, 415 S.W.2d 879, 881 (1967), the Supreme Court said:

The elements necessary to make out the offense of robbery are the taking must be felonious and forcible and from the person of the party robbed, either actual or constructive. It is actual when the taking is immediately from the person; and constructive when in the possession or in the presence of the party robbed. Jones v. State, 214 Tenn. 683, 383 S.W.2d 20 (1964); Kit v. State, 30 Tenn. 167 (1850); Hammond v. State, 43 Tenn. 129 (1866). [Emphasis supplied.]

The record is clear that Mr. Moffitt (the pharmacist and owner of the drug store), Ms. Choiniere and another employee were all present in the store. Ms. Choiniere was a “pharmacist intern.” Her duties involved filling and compounding prescriptions, working “over the counter,” and working “with the cash register.” The evidence was sufficient to support a finding that she was in constructive possession of the cash and drugs which were taken. Since she was a store employee with the duty to wait on customers and operate the cash register, she had joint possession of the drugs and cash along with Mr. Moffitt, the owner. Without doubt, the property was taken “in the presence” of Ms. Choiniere. The first assignment is overruled.

The appellant next complains that the confession which he gave police officers after he had been diagnosed as suffering “mild” drug withdrawal symptoms was not admissible in evidence; appellant says his statement was not voluntarily given after an “intelligent waiver” of his Miranda rights. The resolution of this fact issue necessitated a choice between the credibility of the appellant and the credibility of several State witnesses. The Criminal Court decided the issue against the appellant; there is ample evidence to support this decision and no room for interference by a reviewing court. We do not find that the evidence preponderated against the trial court’s finding and for this reason, we must overrule this assignment. Mitchell v. State, 3 Tenn.Cr.App. 153, 458 S.W.2d 630 (1970).

The appellant next complains of the trial judge’s failing to charge the jury on larceny from the person, a lesser included offense to armed robbery. Johnson v. State, 531 S.W.2d 558 (Tenn.1975). It is well settled that when there is no evidence tending to support a lesser included offense, the failure to instruct on it is not error. In O’Neil v. State, 2 Tenn.Cr.App. 518, 533, 455 S.W.2d 597, 604 (1970), this court said with reference to an armed robbery conviction:

There is an assignment in which Fisher and Rathbone contend it was error for the court not to charge on lesser included offenses. Instructions are required without request if the proof raises that issue. T.C.A. Section 40-2518. When there is no evidence to support a lesser included offense so that the accused can only be guilty of the greater or no offense at all, it is not error to refuse to instruct on the lesser included offenses. James v. State, 215 Tenn. 221, 385 S.W.2d 86; Patterson v. State, 219 Tenn. 80, 400 S.W.2d 743; Bolin v. State, 219 Tenn. 4, 405 S.W.2d 768. There was no such evidence to be found in this record. The assignment is accordingly overruled.

Also see Whitwell v. State, 520 S.W.2d 338 (Tenn.1975); Judge v. State, 539 S.W.2d 340 (Tenn.Cr.App.1976).

The appellant did not testify and offered no evidence in his defense; leaving the State’s evidence undisputed. There is no evidence in the record which would tend to reduce the grade of the offense to larceny from the person. This assignment is overruled.

Finally, the appellant complains of the trial judge’s failing to grant a special request for a jury charge which would have allowed the jury to determine if the confession was freely and voluntarily made and would have given them the criteria to consider in determining this question. This, assignment cannot be considered because the appellant has not cited authority of law or fact in support of it and has not briefed the assignment with argument or discussion. Supreme Court Rule 14; Rockett v. State, 475 S.W.2d 561 (Tenn.Cr.App.1971); Roberts v. State, 4 Tenn.Cr.App. 505, 474 S.W.2d 152 (1971).

We note however, that the trial judge, in admitting the confession in evidence and in instructing the jury with reference to it, complied with State v. Pursley, 550 S.W.2d 949 (Tenn.1977).

The judgment of the Criminal Court is affirmed.

DWYER and O’BRIEN, JJ., concur.