author: COOPER, Justice. COOPER, Justice.

text:
    FOREST PRODUCTS, a Division of the Ludlow Corporation, Appellant, v. James PARVIN, Appellee.
    Supreme Court of Tennessee.
    June 16, 1975.
    Rehearing Denied Aug. 11, 1975.
    Clinton R. Anderson, Anderson & Anderson, Morristown, for appellant.
    Gary E. Brewer, Charles R. Terry & Associates, Morristown, for appellee.
   COOPER, Justice.

Forest Products, a division of the Ludlow Corporation, has appealed from a judgment entered in the Circuit Court of Hamblen County awarding James Parvin benefits under the Workmen’s Compensation Act. The appellant insists the trial judge erred in finding that the cerebral-vascular accident suffered by the appellee arose out of his employment and contests the sufficiency of proof as to causal connection between ap-pellee’s injury and his employment.

“The Legislature in enacting the compensation act expressly entrusted the trial court with the power to find the facts and when such facts are supported by any material evidence, even if this Court thinks the evidence points otherwise, the trial court must be affirmed.” General Shale Prod. Corp. v. Casey, 202 Tenn. 219, 303 S.W.2d 736 (1957)

In this case the evidence shows that James Parvin was employed by appellant in 1966 and has since worked as a woodworking machine operator in the “rough” mill. Parvin has suffered from high blood pressure for years to such an extent that the company nurse periodically checked his blood pressure and sent him home or to the doctor when she found the pressure to be abnormal. The record also shows that Mr. Parvin was hospitalized in 1972 for treatment of hypertension.

On August 25, 1973, Mr. Parvin was assigned to “tail” a saw. The saw operator would cut a one inch strip from a piece of lumber, 60" X 30". Mr. Parvin then would push the board back to the saw operator and would stack the cut pieces. Mr. Parvin had worked about an hour when it became apparent to the saw operator that Parvin was having trouble with his right arm. A short time thereafter, Parvin slumped unconscious to the floor. He was rushed to the hospital where it was found that he had had a cerebral vascular accident, or stroke, with resulting paralysis to the right side of his body. Since Parvin lived, it was impossible for the attending physician to state with certainty whether the stroke was due to a thrombosis, or to an embolism, or to the rupture of an artery carrying blood to the brain.

Dr. John T. Purvis, a neuro-surgeon called as an expert witness by the appellee, testified that whether the stroke was caused by a rupture of the artery or a blockage of the artery, it would be fair and safe to say that appellee’s activity at work the morning of the stroke “could be a contributing factor.” He also testified that the tailing of the saw “could be a contributing factor (to the cerebrovascular accident), of that, there is no question.” He went on to say that “when you get really down to the very cause of this man’s problem, of course, his arteriosclerosis was his problem you know. That is what caused the vessel to plug off. Now how much brain damage you get is the result of how much blood supply there is coming from other vessels, and of course, that is where we would sort of assume that increased effort during the time period might have something to do with producing the cerebral infarct.”

In discussing the causal relationship between employment and heart attacks, this court emphasized in Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540 (1959), that:

“ ‘[We are] committed to the proposition of law that an employee who dies in the course of his employment as a result of a heart attack, although suffering from a previous heart disease, is covered under the Workmen’s Compensation Act even if the result was produced by ordinary exertion and usual strain of the work.’ (Emphasis supplied).
“ * * * if the physical activity and exertion of an employee’s work aggravates a pre-existing heart condition, precipitates the fatal heart attack, and thus hastens his death, such death is the result of accident arising out of and in the course of the employment within the meaning of our Workmen’s Compensation Law.” Citing eases.

In Nashville Pure Milk Co. v. Rychen, 204 Tenn. 575, 322 S.W.2d 432 (1958), this court said

“Counsel for appellant seems to have pitched his case on the idea that there must have been some unusual occurrence or activity or exertion beyond the scope of the deceased’s ordinary employment activities in order for the death to be compensable. We think this is a misapprehension of our cases. The question is succinctly stated in Patterson Transfer Co. v. Lewis, 195 Tenn. 474, 478, 260 S.W.2d 182, 184, as follows:
“ ‘If an ordinary exertion or usual strain produces an unusual result, is the resulting injury by accident?’
“The answer immediately follows:
“ ‘It is now well established that ordinary and usual exertion at work resulting in injuries, is compensable.’”

See also Morristown Chest Company v. Morgan, 212 Tenn. 441, 370 S.W.2d 513 (1963), wherein this court held that an employee who suffered a rupture of a heman-gioma located on the left cerebral hemisphere, while operating a ripsaw at work, sustained an accidental injury arising out of and in the course of his employment. In the course of the opinion the court quoted from Patterson Transfer Co. v. Lewis, 195 Tenn. 474, 260 S.W.2d 182, as follows:

“ ‘It is now well established that ordinary and usual exertion at work resulting in injuries, is compensable. Awards have been upheld on the basis of accidental injury where the strain in tightening a nut in the ordinary manner, caused an aneurism to break . . .’”

In R. E. Butts Co. v. Powell, 225 Tenn. 119, 463 S.W.2d 707 (1971), this court pointed out:

“The issue upon which cases of this nature are determined is factual; that is, whether the employee experienced the disabling injury which may have accelerated an existing disease while at work on the job. If so, this Court has held in numerous cases that the injury is accidental and compensable under our Workmen’s Compensation Statutes, even though the employee was not engaged in any spectacularly unusual strain or extraordinary exertion.”

The employer takes the employee as he finds him. Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540. In this case, as stated above Dr. Purvis testified that Parvin was suffering from arteriosclerosis at the time he suffered the stroke while at work and that there was no question but that his work “could have contributed to the cere-brovascular accident” which caused the disabling paralysis. Thus there is material evidence to support the finding of the trial judge of a causal connection between the employment and the stroke. See Palmer v. Pruitt, 498 S.W.2d 89 (Tenn.1973); Morristown Chest Company v. Morgan, 212 Tenn. 441, 370 S.W.2d 513 (1963).

Judgment affirmed.

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

OPINION ON PETITION TO REHEAR

COOPER, Justice.

The Court has received and has considered a petition for rehearing filed on behalf of Appellant in this case. We have examined the authorities cited therein, and after giving full consideration to the matter we adhere to the conclusions stated in the original opinion filed in this case.

The petition to rehear is overruled.

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


source: Caselaw Access Project

license: Public Domain

text:
    K FURNITURE COMPANY, Appellant, v. SANDERS TRANSFER & STORAGE COMPANY, INCORPORATED, Appellee.
    Supreme Court of Tennessee.
    Aug. 18, 1975.
    Rehearing Denied Sept. 22, 1975.
    Jacobs H. Doyle, Nashville, for appellant.
    F. Clay Bailey, Jr., Nashville, for appel-lee.
   OPINION

COOPER, Justice.

K Furniture Company has appealed from a judgment entered in the Circuit Court of Davidson County dismissing an action to recover personal property held by defendant Sanders Transfer and Storage Company. Appellant insists the trial court was in error in holding that the warehouseman’s lien of appellee was superior to the security interest in the furniture held by appellant.

For the purpose of this action, the parties stipulated that:

“This is an action to recover personal property pursuant to Chapter 365 Public Acts of 1973, being Section 23-2301 through Section 23-2351, Tennessee Code Annotated.
“On June 7, 1973, Jack Price purchased from (K Furniture Company) household furniture for personal and family use at his residence and executed a purchase money security agreement to secure the payment of the purchase price thereof. That on October 8,1973, the furniture was placed in storage by Mrs. Jack Price at Sanders Transfer & Storage Co., Inc., under a standard warehouse receipt. Jack Price defaulted in the purchase money security agreement and the plaintiff, K Furniture Company, seeks to recover the furniture stored at defendant’s warehouse without paying storage charges to the defendant.
“The purchase money security agreement of the plaintiff was properly perfected on June 7, 1973, date of purchase of said property by Jack Price for his home and family use and the defendant’s warehouseman’s lien was properly perfected on October 9, 1973, being the date said property was delivered to defendant’s warehouse.”

On considering the stipulation, the trial judge concluded that, “After reading T.C.A. 47-7-209, which is the warehouseman’s lien, the Court finds that the statute does not expressly provide that said lien will be subservient to a security interest held by a third party and, therefore, under T.C.A. 47-9-310, the defendant’s lien is superior to the security interest held by the plaintiff.”

The Uniform Commercial Code sets forth with particularity priorities among conflicting security interests in the same collateral. See T.C.A. 47-9-312 and the several code sections referred to therein. T.C.A. 47-9-310 covers “priorities between perfected security interests and liens by operation of law,” such as a warehouseman’s lien, and grants the warehouseman’s lien priority unless the statute creating the lien “expressly provides otherwise.”

T.C.A. 47-7-209 governs the existence, extent, effectiveness, and loss of warehouseman’s lien. Subsections (1) and (2) apply to liens against the bailor, in this case Mrs. Jack Price. Subsection (3) sets out the circumstances under which a warehouseman’s lien is effective and also circumstances when the warehouseman’s lien is not effective against a person other than the bailor, in this case the holder of the security interest, K Furniture Company. That part of T.C.A. 47-7-209 material to a decision in this case is as follows:

“Lien of warehouseman. — (1) A warehouseman has a lien against the bailor on the goods covered by a warehouse receipt or on the proceeds thereof in his possession for charges for storage or transportation (including demurrage and terminal charges), insurance, labor, or charges present or future in relation to the goods, and for expenses necessary for preservation of the goods or reasonably incurred in their sale pursuant to law. .
“(3) A warehouseman’s lien for charges and expenses under subsection (1) . is also effective against any person who ' so entrusted the bailor with possession of the goods that a pledge of them by him to a good faith purchaser for value would have been valid but is not effective against a person as to whom the document confers no right in the goods covered by it under § 47-7-503.”

And Section 47-7-503 provides:

“(1) A document of title confers no right in goods against a person who before issuance of the document had a legal interest or a perfected security interest in them and who neither
(a) delivered or entrusted them or any document of title covering them to the bailor or his nominee with actual or apparent authority to ship, store or sell or with power to obtain delivery under this chapter (§ 47-7-403) or with power of disposition under chapters 1 through 9 of this title (§§ 47-2-403 and 47-9-307) or other statute or rule of law; nor
(b) acquiesced in the procurement by the bailor or his nominee of any document of title.” (Emphasis supplied.)

There is nothing in the stipulation of the parties in this case to indicate that K Furniture Company, who holds a perfected security interest in the stored furniture, delivered or entrusted the furniture to Mrs. Price with actual or apparent authority to store the furniture, nor is there any evidence in the record which would indicate that K Furniture Company acquiesced in the procurement by Mrs. Price of any document of title. Absent this evidence, under the statutes set out above, the security interest of K Furniture Company takes priority over the warehouseman’s lien of Sanders Transfer & Storage Co., Inc., for storage charges. See Nikolas v. Patrick, 51 Mich.App. 561, 215 N.W.2d 715.

The judgment of the trial court dismissing this action is reversed. The case is remanded to the Circuit Court of Davidson County generally and specifically for entry of a judgment in favor of K Furniture Company for possession of the furniture. Costs of the cause are adjudged against Sanders Transfer & Storage Co., Inc.

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

OPINION ON PETITION FOR REHEARING

COOPER, Justice.

Appellee, Sanders Transfer and Storage Company, has filed a petition for rehearing, insisting there was no case or controversy pending in this court at the time the opinion of the court was filed. This insistence is not borne out by the record filed in this court. The petition for rehearing, therefore, is overruled at the cost of the appellee.


author: FONES, Chief Justice. FONES, Chief Justice.

text:
    STATE of Tennessee ex rel., Petitioner, v. Robert STRICKLAND and Dewayne Strickland, Respondents. STATE of Tennessee ex rel., Petitioner, v. Terrance LOVELACE and Otto Smith, Respondents. Terrance LOVELACE, Petitioner, v. STATE of Tennessee ex rel., Respondent. Theodore Ernest COTTON, Petitioner, v. STATE of Tennessee ex rel., Respondent.
    Supreme Court of Tennessee.
    Dec. 8, 1975.
    On Petition to Rehear Feb. 2, 1976.

      R. A. Ashley, Jr., Atty. Gen., Wm. C. Koch, Jr., Asst. Atty. Gen., Nashville, for State.
    Jerry H. Summers, Chattanooga, for Lovelace.
    Fielding H. Atchley, Jr., Atchley, Atchley & Cox, Chattanooga, for Cotton.
    Jesse 0. Farr, Farr & Schulman, Chattanooga, for Strickland.
   OPINION

FONES, Chief Justice.

The issues in the four (4) captioned cases are identical and involve: (1) the rights of a juvenile taken into police custody for questioning; (2) compliance with the requirements of T.C.A. § 37-234 which provides for a transfer hearing in juvenile court to determine whether the juvenile should stand trial as an adult in criminal court.

The defendants, Robert and Dewayne Strickland, Terrance Lovelace, and Otto Smith were all allegedly involved in the same incident, and the facts critical to this decision are basically the same for these defendants. The defendant Theodore Cotton, was allegedly involved in a separate and distinct crime, and his factual situation is somewhat different. We are deciding all of the cases in this single opinion.

The Strickland brothers, Terrance Lovelace, Otto Smith, and Jessie Sales (not before this Court) were charged with the armed robbery of Mr. Charles McAtee and the armed robbery and rape of Mrs. Charles McAtee which occurred on February 11, 1973. At the time of the incident, Robert Strickland and Terrance Lovelace were fifteen years of age, and Dewayne Strickland and Otto Smith were sixteen years of age.

On February 12, 1973, detectives, acting on a tip from an informant, questioned the defendants at police headquarters. The youths denied involvement in the incident and each gave an account of his whereabouts on the day in question.

After further investigation, the police determined that the youths’ earlier statements were not consistent, and on February 19, 1973, they were again taken to police headquarters, accompanied by their parents. Although the record is not clear, it appears that this second session of questioning lasted around fourteen (14) hours. The questioning was concluded after each boy waived his constitutional rights and gave a statement implicating himself in the incident. Only then were the youths placed under the jurisdiction of the Juvenile Court.

A hearing pursuant to T.C.A. § 37-234 was held in Juvenile Court to determine whether the juveniles should be transferred to the state criminal court to be tried as adults. The Juvenile Judge determined that the juvenile defendants should be tried as adults. On May 11, 1973, Mrs. McAtee died from gunshot wounds inflicted during the armed robbery and rape, and the additional charge of murder was placed against the defendants.

An appeal of this transfer to criminal court was taken pursuant to T.C.A. § 37-258, where a de novo review was held in the Circuit Court of Hamilton County to determine whether the statutory requirements for transfer from Juvenile Court had been met. The Circuit Court determined that those requirements had been met, and the defendants appealed to the Court of Appeals. The Court of Appeals reversed the finding of the two lower courts and ruled that the confessions given by each of the youths on February 19,1973, were inadmissible before the Juvenile and Circuit Courts because the police had failed to comply with the requirements of T.C.A. § 37-201 et seq. Without these confessions, the Court of Appeals found there was no evidence to support the lower courts’ findings that the defendants should be tried as adults.

The State, in its Petition for Certiorari, assigns as error the action of the Court of Appeals in finding that the confessions were obtained in violation of the statute. It maintains that the temporary detention of a juvenile at police headquarters for the purpose of questioning prior to taking him before the juvenile court is not a violation of T.C.A. §§ 37-215, 37-216.

The juvenile defendants bring several assignments of error, four (4) of which are discussed in this opinion: (1) three (3) days written notice of the time, place and purpose of the transfer hearing was not given to the juveniles and their parents as required by T.C.A. § 37-234(a)(3); (2) there is insufficient evidence to support the judgment of the lower courts under T.C.A. § 37-234(a)(4)(ii) that the juveniles are not amenable to treatment or rehabilitation in existing juvenile facilities; (3) the Circuit Court erred in failing to grant a jury trial; (4) T.C.A. § 37-234 is unconstitutionally vague and overbroad. The defendants also maintain that their arrests and confessions were obtained in violation of their constitutional rights. We do not reach this issue as our interpretation of the statute renders unnecessary any constitutional considerations.

I.

First we consider the contention made by the State that the Court of Appeals erred in finding that the defendants’ confessions were obtained in violation of T.C.A. § 37-201 et seq.

It is asserted by the State that T.C.A. § 37-215 and T.C.A. § 37-216 are not applicable to temporary investigative questioning of a juvenile at police headquarters. Those sections read in pertinent part as follows:

37-215. Custody — Release to proper party — Warrant for custody. — (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.
37-216. Place of detention. — (a) A child alleged to be delinquent or unruly may be detained only in:
(1) a licensed foster home or a home approved by the court;
.(2) a facility operated by a licensed child welfare agency;
(3) a detention home or center for delinquent children which is under the direction or supervision of the court or other public authority or of a private agency approved by the court; or
(4) any other suitable place or facility designated or operated by the court. The child may be detained in a jail or other facility for the detention of adults only if other facilities in paragraph (3) above are not available, the detention is in a room separate and removed from those for adults, it appears to the satisfaction of the court that public safety and protection reasonably require detention, and it so orders.

In support of its proposition that the police may temporarily detain and question a juvenile in disregard of the above quoted statutes, the State cites as authority several cases in which similar statutes have been construed in other jurisdictions. See, e. g. State v. Smith, 32 N.J. 501, 161 A.2d 520 (1960); People v. Zepeda, 47 Ill.2d 23, 265 N.E.2d 647 (1970). The language in these cases indicates obvious concern for the hampering of police effectiveness in the investigation and questioning of juveniles, as well as concern for the protection of juveniles. The results of the decisions show that in balancing the conflicting interests involved, the courts found that the interests of the police in efficient investigation of criminal activity far outweigh any protection afforded the juvenile.

While we agree that the effectiveness and efficiency of police investigation of juveniles may be greatly hampered by the statute, and that the statute places additional burdens on the police beyond the mandates of the Constitution, we will not substitute our judgment for that of the Legislature.

The defendants maintain that the police did not comply with T.C.A. § 37-215(a) or T.C.A. § 37-216 which enumerate the places where a juvenile may be detained. We hold that T.C.A. § 37-216 is not applicable in the instant case as that statute does not govern temporary custodial questioning by the police, and it does not prescribe the only permissible locations at which police questioning may be accomplished.

The question of police compliance with T.C.A. § 37-215(a), however, presents a more critical question. The juveniles were not released to their parents as provided for in T.C.A. § 37-215(a)(l). They were detained and questioned by the police for a considerable length of time, possibly as long as fourteen (14) hours. Even though the parents were present, the juveniles were not free to go, and they were not in their parents’ custody but in the custody of the police.

Nor does it appear the T.C.A. § 37-215(a)(2) was complied with. This sub-section mandates the procedure the police must follow if they wish to take a juvenile into custody for questioning. The juvenile must be brought before the court, notice given that the juvenile is in custody, together with the reason for taking him into custody. The statute clearly implies that on this occasion the police may request permission of the court to temporarily detain the juvenile for questioning, and that the judge granting such permission will prescribe appropriate conditions under which the questioning shall be conducted. It affirmatively appears from the record that this procedure was not followed in the instant case. The record shows that the juveniles were never brought before the Juvenile Judge, even though he came to the police station and authorized the police to fingerprint and photograph the juveniles after they had been questioned for several hours.

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. § 37-215(a) and were not admissible before the Juvenile Court or the Circuit Court. The Court of Appeals erred, however, in determining that without the inadmissible confessions there was no evidence to support the Circuit Judge’s findings that the defendants may be tried as adults.

The testimony in the Juvenile Court of then codefendant Jessie Sales was competent testimony which implicated the Strickland brothers, Terrance Lovelace, and Otto Smith.

When Jessie Sales was called to the witness stand and duly sworn, the Juvenile Court Judge made the following statement:

“THE COURT: Let the record show that the Court is not demanding that this young man testify. The young man is testifying in his own behalf and it is a decision made by the young man, Mr. Sales, and his attorney. You may proceed.” BE at 504.

Shortly after his direct testimony began, a motion to sever was made by counsel for Otto Smith, which was overruled. Thereafter, Sales’ direct testimony continued, conducted by his lawyer. Next he was cross-examined by the district attorney, Mr. Lanzo, then by counsel for the Stricklands, Mr. Ortwein. After several pages of that cross-examination the following transpired:

“MR. LANZO: (Interposing) Your Honor, I object to the cross examination by all defense attorneys. They have no relevancy in this case if they’re—if the statement of this man is not to be used against their client, there is no proof and—
MR. ORTWEIN: (Interposing) If no evidence that this man has given is to be used against my clients in the determination of this case—
THE COURT: That’s the ruling.
MR. ORTWEIN: I’ll waive cross examination. I misunderstood, may it please the Court.
THE COURT: No, I said this waiver would not affect you all because I have not ruled on your motion to dismiss.
MR. ORTWEIN: Then my understanding is that no matter what this man has said about any of my clients, it will not be taken on the motion to dismiss?
THE COURT: This is correct.
MR. ORTWEIN: I’ll waive any further. I’m sorry.
MR. BEAN: Could I have just a minute?
THE COURT: Yes.
MR. GUEST: The same here.
FURTHER CROSS EXAMINATION EXAMINATION BY MR. BEAN:
Q Mr. Sales, you say you didn’t know anybody had a gun over there?
MR. LANZO: Your Honor, I object to Mr. Bean questioning him. He has no interest in this man. It’s discovery at this point.
Q It’s a what?
MR. LANZO: It’s discovery.
Q I think I have a right to cross examine a witness in a case such as this.
THE COURT: You may do so.
MR. LANZO: The right of cross examination only goes to people who accuse his clients and, if the Court has said that whatever he says is not to go against his client he has no interest.
Q If it please the Court, he’s already made statements to accuse everybody.
MR. LANZO: Well, the Court has indicated that what he says is not to be used against their men. For that reason they have — it’s a moot question, whether they cross examine him.
Q Mr. Lanzo asked him that question about people specifically.
MR. WRIGHT: Your Honor, as far as the interest of Jessie Sales is concerned, we’re willing for anybody to cross examine him about anything.
THE COURT: Mr. Bean, you may continue.
MR. ORTWEIN: Excuse me. As I understand it though, Your Honor, what he said about my clients is—
THE COURT: This is correct. As peculiar as it may be but—
MR. ORTWEIN: All right, sir, that’s fine.” BE at 523, 524, 525.

Thereafter attorneys for the other three (3) defendants cross examined Sales rather fully covering the scope of his direct examination implicating all five (5) defendants.

We have quoted fully all objections, discussions, and rulings by the Juvenile Court Judge with respect to the admissibility of Sales’ testimony. The record contains no explicit objection or ruling thereon, only an implication arising from the foregoing quote that the Juvenile Court Judge had, de hors the record, advised the parties and their lawyers that Sales’ testimony was not to be considered in the transfer hearing of the other four defendants. Sales’ testimony was not inadmissible as violative of the Bruton rule, or any other rule of evidence. The Juvenile Court Judge evidently disregarded Sales’ testimony erroneously and relied erroneously upon the confessions of the defendants. We hold the testimony of Sales was admissible, and sufficient to support a finding that there existed reasonable grounds to believe that the five (5) defendants committed the delinquent acts alleged in the petitions involved in the transfer hearing. We further hold that the defendants cannot assert any valid claim of prejudicial error arising out of a belief that said testimony would not be considered, because, in fact, they were allowed more than adequate cross-examination for the purposes of a transfer hearing.

The testimony of Jessie Sales was evidence sufficient to provide the Juvenile Judge with reasonable grounds to believe the defendants committed the crimes charged, and, being a part of the record by stipulation on the Strickland brothers’ appeal to the Circuit Court, provided the Circuit Judge with reasonable grounds to believe that Robert and Dewayne Strickland committed the crimes charged. Additionally, Jessie Sales also testified at the de novo appeal in Circuit Court again implicating Terrance Lovelace and Otto Smith.

II.

The defendants maintain that they did not receive three (3) days notice in writing of the time, place and purpose of the transfer hearing as required by T.C.A. § 37-234(a)(3). Even though the burden is on the State to prove that notice was given, and this fact is not reflected in the record, the assignment of error cannot stand as it does not appear that objection to the lack of notice was made prior to the hearing. The juvenile defendants and their counsel appeared at the transfer hearing on March 8, 1973, and participated in that proceeding without making objection to the lack of formal written notice. The first time any objection was made to the alleged lack of notice was in a motion to vacate judgment, filed on behalf of Robert and Dewayne Strickland after the transfer hearing had been held and judgment rendered. This is analogous to the rule that objections to the sufficiency of service of process must be made prior to appearance of the defendant and his defending on the merits. State v. Collier, 160 Tenn. 403, 23 S.W.2d 897 (1930); Title Guaranty and Trust Company v. Johnson, 485 S.W.2d 764 (Tenn.App.1972). The juvenile judge must be given the opportunity to correct any defects of notice and conduct the hearing free from error. We hold that unless objection to the sufficiency of the notice requirements of T.C.A. § 37-234 is made prior to or at the beginning of the transfer hearing, it is waived.

III.

Defendants next argue that there is insufficient evidence in the record to support a finding that the juveniles are' not amenable to treatment or rehabilitation in available facilities as required by T.C.A. § 37-234(a)(4)(ii). The court is only required to find that there are “reasonable grounds” upon which to base a finding that a juvenile is not amenable to rehabilitation. The juvenile court, in its role of parens patriae, is placed in a unique position with regard to the persons appearing before it. The juvenile judge is experienced in the evaluation of youthful offenders and is given a wide range of discretion in attempting to establish the most beneficial course of action in rehabilitating those offenders. In making a decision whether a juvenile is amenable to treatment or rehabilitation, the juvenile judge may consider many factors including testimony by expert witnesses, the type of facilities available, length of stay in these facilities, the seriousness of the alleged crime, and the attitude and demeanor of the juvenile. The record indicates that if processed through the juvenile court and correctional system, the juvenile offenders would spend approximately six (6) to nine (9) months in institutional custody, and the Court would have no control over which of the several juvenile correctional institutions would be responsible for the treatment of the juvenile defendants. There was also testimony that the short term rehabilitative programs for juveniles are largely ineffective. This is certainly sufficient evidence to uphold the finding of the Juvenile Judge that a juvenile who had committed armed robbery, rape, and murder would not be amenable to treatment or rehabilitation in a period of six (6) to nine (9) months.

IV.

Defendants, relying on Arwood v. State, 62 Tenn.App. 453, 463 S.W.2d 943 (1970), maintain they were denied their right to a jury trial. While there is no question about the soundness of the Ar-wood decision, the defendants’ reliance on it is misplaced. Arwood dealt with the situation where three (3) juveniles were denied a jury trial on their de novo appeal to Circuit Court. Relying on In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Court of Appeals held that a juvenile charged with delinquency predicated upon a felony is entitled to have a jury determine his guilt or innocence at trial. That is not the situation in this case. The juveniles here have not been tried upon any charge; their guilt or innocence has not been adjudicated. They have no constitutional right to a jury trial at what is essentially a probable cause hearing. Nor is there a statutory right to a jury trial as T.C.A. § 37-234(a)(4) provides that the judge shall make the factual determinations at the transfer hearing.

V.

Lastly defendants argue that T.C.A. § 37-234 is unconstitutional because it is overbroad and vague. The assignment is without merit. The basic concept behind the vagueness doctrine is the idea of fairness, and that the statute should be sufficiently specific to provide notice of the type of conduct expected. The doctrine should not be used to create a constitutional dilemma out of the practical difficulties in drawing statutes, Colten v. Commonwealth of Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 548 (1972). The lack of precision in a statute does not render a statute unconstitutional per se. See, Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Judged by these standards the language of T.C.A. § 37-234 is constitutionally adequate in that it establishes criteria upon which the juvenile judge is to base his decision on whether to transfer the juvenile to the criminal court, and it adequately informs the parties as to what is to be considered by the judge.

The determination by the Juvenile Judge and the Circuit Judge that Robert and Dewayne Strickland, Terrance Lovelace, and Otto Smith should be transferred to the Criminal Court to be tried as adults was correct.

VI.

We turn now to consider Theodore Cotton’s Petition for Certiorari.

Theodore Cotton is charged with the murder of Michael Evans on November 17, 1973, in Hamilton County, Tennessee. At the time of the incident, the petitioner was seventeen (17) years of age.

The police officer investigating the murder immediately after it took place was notified that the petitioner was involved and where he could be located. The officer then went to the petitioner’s home where the petitioner’s mother, Mrs. Cotton, allowed him to question her son. Petitioner’s Miranda rights were read to him, and he acknowledged that he understood his rights and proceeded to make a confession. He told the officer where the pistol used in the slaying was located, and Mrs. Cotton turned it over to the officer. Petitioner was then taken to police headquarters where he gave a written confession and was later turned over to the juvenile authorities.

The Juvenile Court of Hamilton County, after receiving evidence at the transfer hearing, determined that the petitioner should be transferred to the Criminal Court and tried as an adult. That judgment was affirmed on de novo appeal by the Circuit Court of Hamilton County. An appeal was then taken to the Court of Appeals which affirmed the transfer to Criminal Court.

In his petition for Writ of Certiorari, petitioner brings two (2) assignments of error: (1) the Court of Appeals erred in considering statements against interest made by the defendant; (2) the Court of Appeals erred in failing to remand the cause to the Juvenile Court of Hamilton County because notice as required by T.C.A. § 37-234(a)(3) was not given.

In his first assignment of error, petitioner maintains that because he was not taken “directly with all reasonable speed” to the juvenile court after being taken into custody, the written statement given by him at police headquarters was inadmissible under T.C.A. § 37-227(b). While we agree with this contention and hold that the written statement should not have been considered because of the reasons advanced in the prior discussion, there was other admissible evidence upon which the Judge could find “reasonable grounds” to believe that petitioner committed the murder. His oral confession at his home and in the presence of his mother was not obtained in violation of T.C.A. § 37-215, nor was the seizure of the pistol violative of that section.

Secondly, petitioner argues that notice of the purpose of the hearing as required by T.C.A. § 37-234(a)(3) was not given. While it does appear from an affidavit of Mrs. Cotton that notice as to the purpose of the hearing was not given, it does not appear that this defect was objected to prior to the hearing. As previously discussed, any objection to defects in notice must be made prior to the hearing or the objection is deemed waived.

The decision of the Court of Appeals in the case of Theodore Ernest Cotton v. State is affirmed. The decision of the Court of Appeals in State v. Robert and Dewayne Strickland and State v. Terrance Lovelace and Otto Smith is affirmed in part and reversed in part. These cases are remanded to the Juvenile Court of Hamilton County for the entry of orders transferring each case to the Criminal Court of Hamilton County where the defendants will be tried as adults.

COOPER, HENRY and HARBISON, JJ., and INMAN, Special Justice, concur.

OPINION ON PETITION TO REHEAR

FONES, Chief Justice.

In their petition to rehear, petitioners Robert and Dewayne Strickland assert that this Court overlooked the assignment of error which alleged a violation of Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The Davis case involved a situation where the police, without arrest warrants, took at least twenty-four (24) youths to police headquarters where they were questioned, fingerprinted, and released without being charged. The police also interrogated forty (40) to fifty (50) other youths either at the police station, at school, or elsewhere. The Court found that defendant’s arrest was illegal and that the fingerprints obtained while defendant was illegally detained were not admissible.

A factor in the Davis decision was the wholesale roundup and questioning of young men without probable cause to arrest them. In the instant case testimony indicated that only ten (10) to fifteen (15) young people were questioned at police headquarters; among those questioned were the five (5) defendants subsequently charged with the offenses. This did not appear to us to fit within the Davis situation. Petitioners maintained that they were not allowed to fully develop the facts surrounding the alleged wholesale roundup, detention, and questioning of suspects in the instant case. We initially felt that the proper procedure would be for petitioners to fully develop this issue in the trial court as they alleged that they had not been allowed to present evidence to substantiate their claim at the transfer hearing; however, after considering their argument in the petition to rehear, we will dispose of the issue before remand.

Assuming, without deciding, that the arrests and confessions of all the petitioners were obtained in violation of their constitutional rights, and that the confession of Jessie Sales was a “fruit of the poisonous tree,” Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939), we think the testimony of Jessie Sales was constitutionally admissible.

Sales’ testimony was an independent act of his own free will sufficient to “purge the primary taint” of the unlawful arrest and subsequent confession. A period of several weeks intervened between the date the confession was obtained and the testimony of Sales in open court, during which time he was represented by counsel. We feel this situation is analogous to Wong Sun v. United States, 371 U.S. 471, 490, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963). There the defendant was unlawfully arrested and released the next day, after his arraignment. Several days later, during a lawful questioning session, the defendant gave a voluntary confession. The Court held “. . . that the connection between the arrest and the statement had ‘become so attenuated as to dissipate the taint.’ ” 371 U.S. at 490, 83 S.Ct. at 419, quoting from Nardone v. United States, supra, 308 U.S. at 341, 60 S.Ct. 266. In view of Wong Sun v. United States, supra, we find that any illegality in the police investigation was cured by the open court testimony of Jessie Sales, and petitioners cannot complain that his testimony was an unlawful fruit of the illegally obtained confessions. Also in response to petitioners’ Davis argument, it should be noted that an unlawful arrest does not vitiate the entire prosecution against the accused. Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505 (1927).

Separate and apart from the “fruit of the poisonous tree” issue, petitioners maintain the Sales’ confession and testimony were illegally obtained, and that the testimony should not be used against them. Petitioners have no standing to complain that Sales’ confession and subsequent testimony were unlawfully obtained. Illegally obtained evidence may be used against one whose rights were not violated in the seizure of that evidente. Wong Sun v. United States, supra, 371 U.S. at 492, 83 S.Ct. 407; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967,19 L.Ed.2d 1247 (1968); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Thus, petitioners may not seek to assert a right which is personal to Jessie Sales.

The remainder of the points raised in the petition to rehear were fully discussed in the Opinion.

The petition to rehear is denied.

COOPER, HENRY and HARBISON, JJ., and INMAN, Special Justice, concur.

      . There were two separate appeals. Robert and Dewayne Strickland appealed first, followed by Terrance Lovelace and Otto Smith. It is not clear from the record as to the disposition of State v. Jessie Sales.

      . T.C.A. § 37-227(b) provides that an extrajudicial statement obtained from a juvenile in violation of chapter two of the Juvenile Court Act shall not be used against him.


author: FONES, Chief Justice. HARBISON, Justice

text:
    Sammy Lee NELMS, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Jan. 26, 1976.

      Edward G. Thompson, Shelby County, Public Defender, Walker Gwinn, Asst. Public Defender, Memphis, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, for respondent.
   OPINION

FONES, Chief Justice.

We granted certiorari in this cause to determine the sole question of whether the State’s failure to bring petitioner to trial within one hundred eighty (180) days violates the Interstate Compact on Detainers, T.C.A. § 40-3901 et seq., and voids the indictment and conviction under the terms of that statute. The Court of Criminal Appeals, in a split decision, found that it did not. We disagree and reverse the conviction of petitioner.'

The Shelby County Grand Jury returned an indictment against petitioner on June 12, 1973, on the charge of robbery by use of a deadly weapon. On that date petitioner was serving a sentence on a prior conviction in the Iowa Men’s Reformatory, located in Anamosa, Iowa.

On June 15, 1973, a letter from the Shelby County Sheriff’s Office with a certified copy of the capias was mailed to the Sheriff of Scott County, Iowa, requesting Iowa officials to detain petitioner for Tennessee authorities.

On June 19, 1973, pursuant to Article IV(a) of the Interstate Compact on Detain-ers, the District Attorney General of Shelby County made a request to the warden of Iowa State Men’s Reformatory for the temporary custody of petitioner for the purpose of trying him on the indictment returned against him in Shelby County.

On June 21, 1973, petitioner, pursuant to Article 111(a) of the Compact, requested final disposition of the indictment within one hundred eighty (180) days. This request was later acknowledged as being on file in the Shelby County District Attorney’s Office.

On June 22,1973, the warden of the Iowa State Men’s Reformatory acknowledged to the Sheriff of Shelby County that he had received Shelby County’s detainer. The warden also advised of two prior detainers issued by Mississippi and Illinois.

Thereafter no follow-up action on petitioner’s request for final disposition was taken by the Shelby County District Attorney’s Office, and on January 4, 1974, that office was notified by a different warden of the Iowa State Men’s Reformatory that the one hundred eighty (180) day period had expired and the Shelby County detainer was null and void under Article 111(a) and V(c) of the Compact.

On January 8,1974, the District Attorney General renewed his request for temporary custody of petitioner, pointing out that a form for request of temporary custody had been mailed to the Iowa institution on June 19, 1973, and that no offer of release to temporary custody had been received from Iowa authorities.

On February 1, 1974, the warden of the Iowa State Penitentiary at Fort Madison, Iowa acknowledged custody of petitioner, and informed the District Attorney General that Iowa authorities had failed to notify Tennessee that petitioner was available for release to temporary custody after receipt of the request petition dated June 19, 1973.

Petitioner was later released by Iowa and tried in Shelby County on April 12,13,1974, and was convicted of the crime of robbery with a deadly weapon. Petitioner was sentenced to fifteen (15) years in the penitentiary to run consecutively with the Iowa sentence.

Prior to trial, petitioner filed a timely motion to dismiss the indictment because of failure to comply with the Interstate Compact on Detainers. The trial court denied this motion, and the Court of Appeals affirmed the denial.

In its answer to the Petition for Certiora-ri the State makes two arguments. First it argues that the Shelby County District Attorney General was justified in not following up on his request for temporary custody because Iowa authorities gave notice that two other states had filed prior detainers. The State views this as a denial of a request for temporary custody and sufficient to relieve the District Attorney General from the responsibility of bringing the petitioner to trial within the one hundred eighty (180) day period. We disagree.

It should be noted that there is nothing in the record to show that the District Attorney General had knowledge of the correspondence between the Shelby County Sheriff’s Office and the Iowa authorities. The Iowa warden’s reply to the Shelby County Sheriff’s detainer request was not a response to the request for temporary custody, as contemplated in the Compact.

But assuming that the District Attorney General was aware of the prior de-tainers lodged against petitioner, that would not have affected his actions under the Compact as the presence of a detainer lodged against an individual has no effect on the ability of that individual to be temporarily removed from the state in which he is incarcerated and tried in another state. A different situation would be presented, however, if both Mississippi and Illinois had made prior requests for temporary custody so that petitioner could be tried in those states. The correct procedure in that situation would have been for the Shelby County District Attorney General to have made a motion for a continuance pursuant to Article 111(a) of the Act.

The record does not reflect whether Mississippi or Illinois had made requests for temporary custody of the petitioner, but it does reflect that no motion for continuance was made by the District Attorney General.

We hold that the prior detainers lodged against petitioner did not justify the State’s failure to follow up on petitioner’s request for final disposition.

Secondly, the State maintains that it should not be prejudiced because Iowa authorities negligently failed to provide Tennessee authorities with an offer of temporary custody as provided by Article V(a) of the Compact. This position necessarily encompasses the view that the burden is on the defendant to insure that he is temporarily released from custody so that he may stand trial in another state. The statute clearly does not place such a burden on the defendant. It merely requires that the defendant cause . . . to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment ...” T.C.A. § 40-3901, Article 111(a). The petitioner clearly complied with this provision.

Article V(a) requires the state where the defendant is in custody to make an offer of release to temporary custody whenever a prisoner makes a request for final disposition of charges against him, or when a request for temporary custody is received from a prosecuting officer. Iowa authorities did not comply with this provision, nor did Tennessee authorities make any followup inquiry as to why an offer of temporary custody was not made. Petitioner should not be charged with the responsibility of insuring that his captors have complied with provisions of the law when he has no control over their activities. By placing the burden of insuring compliance on the two states involved, the defendant is less likely to become “the victim of their contributory inaction.” People v. Esposito, 37 Misc.2d 386, 201 N.Y.S.2d 83, 90 (Queens County Ct.1960).

An examination of the authorities in the other jurisdictions which have considered analogous situations presented under similar statutes convinces us of the soundness of this decision.

The Maryland Court of Appeals in State v. Barnes, 273 Md. 195, 328 A.2d 737 (Ct.App.1974), reviewed the purposes of the Interstate Compact on Detainers Act:

“It has long been recognized that de-tainers for untried charges — whether interstate or intrastate in nature — may result in ‘undue and oppressive incarceration.’ Undue delay in the disposition of such detainers has been recognized as minimizing the possibility that a defendant incarcerated might receive a sentence at least partially concurrent with the term he is serving and that under the procedures widely practiced, the duration of his imprisonment may be increased and the conditions under which his confinement must be served greatly worsened because of the pendency of an additional charge against him and the potentiality of additional punishment. Similarly, it has been recognized that a long delay in the trial of the detainer charge may impair the ability of the accused to defend himself since he is often in a prison far removed from the place where the added offense allegedly took place, resulting in an impairment of his ability to keep apprised of the whereabouts of witnesses, and isolates him from the ready availability of the assistance of his counsel. It has even been stated that the pendency of such a detainer constitutes a serious impediment to the prisoner’s ability to take maximum advantage of the institutional opportunities for rehabilitation. [citations omitted] In some jurisdictions the pendency of such a detainer precludes the prisoner from eligibility for parole consideration; in others it excludes him from placement on work-release programs, and it has been known, because of the potentiality of escape, to cause the prisoner to be confined under more strict and harsh security measures than might otherwise be applicable to his case, except for the detainer on file.” 328 A.2d at 743.

The remedial nature of this legislation requires that it should be construed liberally in favor of those it was intended to benefit. Commonwealth v. Fisher, 451 Pa. 102, 301 A.2d 605 (1973).

The adoption of the dismissal sanction of V(c) was not to protect the defendant from being prejudiced if his trial were delayed for more than one hundred eighty (180) days after demand, but “was regarded as essential to produce general compliance with the statutory mandate.” State v. Lippolis, 107 N.J.Super. 137, 257 A.2d 705, 710 (1969).

All delay of trial in excess of one hundred eighty (180) days does not, however, mandate dismissal of the indictment. Article 111(a) of the Act provides “ . that for good cause shown . . . the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” Here there was no motion for a continuance.

In a closely analogous case, Commonwealth v. Wilson, 231 Pa.Super. 451, 331 A.2d 792 (1974), the defendant was not brought to trial because of the inadvertence of the trial judge, even though the District Attorney General had complied with the requirements of the statute. The Pennsylvania Superior Court in affirming dismissal of the indictment, felt that “ . . . it is unimportant whether delay is occasioned by the prosecutor’s office or by the court; so long as the delay is neither reasonable nor necessary, and not occasioned by the defendant, the legislative policy must be heeded.” 331 A.2d at 794.

The judgment of the Court of Criminal Appeals sustaining the conviction of petitioner is reversed and the indictment is dismissed with prejudice.

COOPER and HENRY, JJ., and DYER, Special Justice, concur.

HARBISON, J., dissents.

HARBISON, Justice

(dissenting).

I respectfully dissent from the decision of the majority of the Court, which sets aside and voids a conviction of the petitioner on charges of armed robbery. The majority holds that failure of the State to bring the petitioner to trial within 180 days after receipt of his request for final disposition requires dismissal of the indictment pursuant to Article III of the Interstate Compact on Detainers, T.C.A. § 40-2901 et seq., regardless of whether the sending state offers custody to the requesting state.

The trial judge and the majority of the Court of Criminal Appeals reached a contrary conclusion, and I agree with their decision.

Transfer of a prisoner from a state having him in custody to a requesting state requires co-operative action on the part of of the officials of both jurisdictions involved. In the present case the prisoner, pursuant to the provisions of Article III of the Interstate Compact, requested final disposition of his case. The District Attorney General of Shelby County, pursuant to the provisions of Article IV, with approval of the judge of the criminal court of that county, also made a proper request for the temporary custody of the petitioner.

Under the provisions of Article V, when a request is made by either or both of these methods:

“ . . . the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending against such person in order that speedy and efficient prosecution may be had.”

The statute expressly provides that if the request is made by the prisoner, this offer of temporary custody shall accompany the written notice sent to the state where the proceedings are pending.

The Iowa authorities wholly failed to comply with the provisions of Article V, and later acknowledged this failure. There was no offer of temporary custody made by the Iowa officials, either accompanying the request of the prisoner, or in response to the request from the District Attorney General of Shelby County. Not until February 1, 1974 did they ever offer custody to the Tennessee officials.

Under these circumstances, it is my opinion that the Tennessee officials have not violated the provisions of the Interstate Compact on Detainers, and that the officials in Tennessee are not responsible for such violation on the part of the Iowa authorities.

I agree with the conclusion stated in the majority opinion of the Court of Criminal. Appeals that the orderly processes of criminal justice in Tennessee should not be disrupted by oversight or omission on the part of officials of the sending state.

The Maryland case cited by the majority, State v. Barnes, 273 Md. 195, 328 A.2d 737 (1974), arose under and actually involved an intrastate statute, not the Interstate Compact, and the delay in bringing the prisoner to trial resulted from actions of Maryland officials, within that state, in transferring the prisoner from a state institution to the county of trial.

In the Pennsylvania case cited, Commonwealth v. Fisher, 451 Pa. 102, 301 A.2d 605 (1973), the sending state promptly offered temporary custody to the Pennsylvania officials. The delay involved was wholly that of the requesting state in taking the prisoner into custody. In State v. Lippolis, 107 NJ.Super. 137, 257 A.2d 705 (1969), officials of both the sending and the receiving states appear to have been derelict in their duties, but the sending state had properly offered temporary custody and this offer had been promptly accepted. The delay occurred thereafter in consummating the details of the transfer.

In the instant case, the Tennessee officials acted promptly in taking custody of the prisoner, after it was offered to them by the Iowa authorities.

Under the circumstances shown in this case, in my opinion the judgment of the Court of Criminal Appeals should be affirmed.


author: BROCK, Justice.

text:
    Jim W. STAMBAUGH, Appellant, v. Lon F. PRICE et al., Appellees.
    Supreme Court of Tennessee.
    Jan. 26, 1976.

      James E. Beckner, Stambaugh & Beck-ner, Morristown, for appellant.
    John F. Dugger, Dennis H. Inman, William O. Foutch, Jr., Morristown, for appel-lees.
   OPINION

BROCK, Justice.

This is an election contest involving the validity of the election of appellee, Scott Reams, to the office of Judge of the Juvenile Court of Hamblen County at the general election held on August 1, 1974. Appel-lee, Reams, received a majority of the votes cast, 134 more votes than were cast for appellant, Jim Stambaugh, who was the incumbent judge. Appellant, Stambaugh, filed this action challenging Reams’ election upon the ground that the latter was only twenty-six years of age and, thus, disqualified under Article 6, § 4, Constitution of Tennessee, which requires that all judges be not less than thirty years of age. The Chancellor held that the provision of the Private Act creating the Juvenile Court of Hamblen County which purported to fix the minimum age for Judge of the Juvenile Court at twenty-one years was in violation of Article 6, § 4, Constitution of Tennessee, and, therefore, void; that Reams was, therefore, not eligible to be a candidate for the office of Juvenile Court Judge and since he received the highest number of votes cast, that the election on August 1,1974, for Juvenile Court Judge was void under the provisions of T.C.A. § 2-1713. The Chancellor further held that a vacancy existed in the office under the provisions of T.C.A. § 17-112 and that the Governor should appoint a suitable person to fill it until the next biennial election. The Governor has complied by appointing Don D. Greene to serve as Special Judge until the next election.

The incumbent, Stambaugh, has appealed contending that he is entitled to the office. He asserts two theories, viz.: (1) That Reams, the election commission and the voters were informed prior to the election that Reams was not eligible to be a candidate and, therefore, the votes cast for him were not legal votes within the meaning of T.C.A. § 2-1713, leaving Stambaugh as the candidate receiving the highest number of “legal votes” cast; or, in the alternative, (2) the Governor had no authority to appoint an interim judge under T.C.A. § 17-112 because that statute applies only in the event of a vacancy caused by death, resignation or removal of an incumbent judge, which is not the case here since Reams was never an incumbent; therefore, Stambaugh is entitled to continue in the office as a holdover as provided by Article 7, § 5, Constitution of Tennessee.

I

Appellant cites respectable authority for the proposition that votes knowingly cast for a candidate who cannot possibly exercise the functions of the office, if elected, are thrown away. State ex rel. Bancroft v. Frear, 144 Wis. 79, 128 N.W. 1068 (1910); Fields v. Nicholson, 197 Ind. 161, 150 N.E. 53 (1926). We have no quarrel with the rule but are not persuaded that it is applicable to the facts of this case. Although the candidate, Reams, and the members of the election commission may have known of the constitutional ineligibility of Reams well in advance of the election, the electorate did not have such knowledge. The only such information imparted to the general public consisted of newspaper advertisements published by Stambaugh on the last day before the election. We think that such notice is inadequate to justify a finding that the voters for Reams “knowingly threw their votes away,” so that their votes were not “legal votes.” We affirm the decision of the Chancellor that no one was elected to the office of Judge of the Juvenile Court on August 1, 1974, the election being void under T.C.A. § 2-1713, which provides:

“If the person whose election is contested is found to have received the highest number of legal votes, but the election is declared null by reason of constitutional disqualifications on his part or for other causes, the election shall be declared void.”

II

As we understand the alternate theory of appellant, it is that T.C.A. § 17-112, under which the Governor has acted to appoint an interim judge, does not apply in this case and, therefore, that he continues in the office as a holdover under Article 7, § 5, Constitution of Tennessee, which provides: “Every officer shall hold his office until his successor is elected or appointed, and qualified.”

T.C.A. § 17-112 provides:
“Vacancies in office. — Whenever a vacancy, either by death, resignation, or removal, shall occur in the office of a judge of the Supreme Court or Court of Appeals, circuit judge, or chancellor, or judge of a criminal court, or judge of a special court of equal dignity with circuit and chancery courts ... [it shall be filled at the next biennial election] . . . and in the meantime the governor shall appoint a person learned in the law and constitutionally qualified to discharge the duties of said office until such election can be had. ...”

Appellant argues that no vacancy “by death, resignation, or removal” has occurred and, therefore, that T.C.A. § 17-112 fails to give the Governor authority to appoint an interim judge. We agree that T.C.A. § 17-112 does not apply and that the Chancellor erred in holding that the Governor was authorized to appoint an interim judge in this case. However, our reasons differ from those advanced by appellant. Without deciding whether or not the facts in this case show a “vacancy” as contemplated by T.C.A. § 17-112, we hold that statute to be inapplicable because the Juvenile Court of Hamblen County is not “a special court of equal dignity with circuit or chancery courts . . . .” In our opinion, the Chancellor erred in holding it to be such a court.

In recent years the General Assembly has created a number of special courts possessing virtually the same subject matter jurisdiction as a circuit or chancery court or a combination of the two; their judgments are re viewable only by the Supreme Court, the Court of Appeals or the Court of Criminal Appeals; their judges are paid by the State and enjoy the benefits of regular circuit judges and chancellors. We think the term “special court[s] of equal dignity with circuit or chancery courts . ” was intended to designate these special courts and was not intended to refer to juvenile courts.

We note certain attributes of a juvenile court which, in our view, show that it is not “of equal dignity with circuit or chancery courts.” The juvenile court is one of limited jurisdiction, while both the circuit and chancery courts are courts of general jurisdiction. The statute creating the juvenile court defines seven specific classes of cases in which the juvenile court has exclusive jurisdiction, and three in which it has concurrent jurisdiction with the county court. T.C.A. §§ 37-203 and 37-204.

The chancery court, by contrast, has inherent jurisdiction, extending beyond its statutory jurisdiction, to act in relation to the property and the other interests of minors. Cummings v. Patterson, 54 Tenn.App. 75, 388 S.W.2d 157 (1964), appeal after remand 59 Tenn.App. 536, 442 S.W.2d 640 (1968).

Notwithstanding T.C.A. § 37-204, the juvenile court’s jurisdiction to adjudicate custody of children may be pre-empted by circuit courts hearing domestic relations’ cases, Dearing v. Dearing, 50 Tenn.App. 394, 362 S.W.2d 45 (1962), and by chancery or circuit courts hearing petitions to adopt. T.C.A. § 36-123, Hall v. Honeycutt, 489 S.W.2d 37 (Tenn.App.1972).

The territorial jurisdiction of a juvenile court is limited to one county, while that of a circuit or chancery court often extends over several counties; indeed, the latter are state courts whose judges may be designated to sit in any locality in the state. Juvenile court judges are paid by the county, while circuit judges and chancellors are paid by the state.

While it is true, as the Chancellor observed, that the juvenile court is a court of record by virtue of T.C.A. § 37-258, the same Section provides that any party, including the state or its subdivisions, may appeal to the circuit court and there have, not appellate review, but a trial de novo.

While the juvenile court can acquire in personam jurisdiction over adults in the sense that it can render a binding judgment against them, its subject matter jurisdiction is strictly limited to persons who have not reached majority. State ex rel. Hyatt v. Bomar, 210 Tenn. 249, 358 S.W.2d 295 (1962).

Since T.C.A. § 17-112 does not apply to authorize the Governor to appoint an interim judge, does it follow that appellant is entitled to continue in office until the next biennial election under Article 7, § 5, Constitution of Tennessee? That provision entitles an incumbent to hold over only “until his successor is elected or appointed and qualified.” In our opinion the law provides for the election of his successor by the quarterly county court.

T.C.A. § 2-1713, above-quoted, expressly requires that the election, in the circumstances here present, shall be declared void. Further, T.C.A. § 8-2801 provides:

“Any office in this state is vacated:
(4) By the decision of a competent tribunal, declaring the election or appointment void or the office vacant.”

And T.C.A. § 8-2806 provides:

“Whenever there is a final judgment of a competent tribunal, declaring any election or appointment void, or any office vacated, such judgment shall promptly be certified by the clerk to the appointing power or power whose duty it is to take steps to fill the vacancy.”

Finally, T.C.A. § 5-513 provides:

“Vacancies ... in the following offices are filled by election or appointment of the county court: Sheriffs, trustees, registers, public administrators and guardians, constables, county court clerks, county tax assessors, or any other county officer, not otherwise provided for.”

We hold that the juvenile court judge falls into the category “. . . any other county officer, not otherwise provided for,” that a vacancy exists in the office of juvenile court judge, and that the quarterly county court possesses the authority under T.C.A. § 5-513 to fill the vacancy by electing an interim judge to serve until the next biennial election.

In reaching the conclusion that the juvenile court judge is a county officer and not a state officer, we have considered several factors.

First, the county pays his salary. “The primary badge of a State officer is that the Legislature provides that the State pay the salary of the office.” Durham v. Dismukes, 206 Tenn. 448, 333 S.W.2d 935 (1960).

Secondly, the juvenile court can appoint probation officers to make investigations, reports, and recommendations for the court’s use and to perform services for wards of the court and for children on probation. T.C.A. § 37-206. These officers are in addition to the state probation officers, and their salaries may be fixed by the county court. T.C.A. § 37-205.

The juvenile judge in counties of 600,000 population or less may appoint a member of the bar who can hear cases in the first instance (although the parties may demand a rehearing before the judge), and who can enter any and all process, and whose findings and recommendations, upon confirmation by the judge, become the findings and order of the court. This potentially important officer may be qualified under county civil service regulations. T.C.A. § 37 — 207.

In Durham v. Dismukes, supra, the Court laid down a number of criteria which are helpful in deciding whether an office is one of the county or of the state. Where no legislative intent was apparent to create a court with jurisdiction beyond the borders of the county; where the county bore the expense of the court, paid the judge’s salary, and was entitled to the fees collected; and where “the overall duties are applicable to the people of the county alone”; it was held that the General Sessions Court was a county, not a state, office.

In addition to the expenses of juvenile courts already noted, the law provides that the county pay for the following items: medical examinations and treatment of children, compensation and expenses of attorneys for a party, compensation of guardians ad litem, costs of serving process, and transportation costs for children and witnesses. T.C.A. § 37-249. The portion paid by the county is substantial and includes the more usual and routine expenses of the operation of the court. At the least, the county’s contribution is adequate support for the conclusion that the juvenile court is primarily a county institution.

Therefore, we conclude that Article 7, § 5, Constitution of Tennessee, entitles the appellant to hold over only until such time as his successor is elected by the quarterly county court, pursuant to T.C.A. § 5-513, and is qualified according to law; but it does not entitle him to hold over until the next biennial election. Southall v. Billings, 213 Tenn. 280, 375 S.W.2d 844 (1963). The decision in Conger v. Ray, 151 Tenn. 30, 267 S.W. 122 (1924), and cases of similar import hold to the contrary but should no longer be considered as authority upon the question; they are inconsistent with Southall v. Billings, supra, which we expressly approve and reaffirm.

The decree of the Chancery Court is vacated and this cause is remanded to that Court for further proceedings consistent with this opinion. Costs in this Court are adjudged against appellant.

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


author: O’BRIEN, Judge.

text:
    William D. CARROLL, Petitioner, v. STATE of Tennessee, Respondent.
    Court of Criminal Appeals of Tennessee.
    Aug. 4, 1975.
    Certiorari Denied by Supreme Court Dec. 1, 1975.

      Jerry R. Daniels, Nashville, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Edward M. Yarbrough, Asst. Dist. Atty. Gen., Nashville, for respondent.
   OPINION

O’BRIEN, Judge.

This is an appeal from dismissal of a petition for post-conviction relief in the Criminal Court of Davidson County without an evidentiary hearing.

On June 28th, 1973, petitioner was convicted for the offense of armed robbery and sentenced to forty years in the penitentiary. On March 27th, 1974, this Court affirmed the judgment of conviction with certiorari denied by the Supreme Court on June 3rd, 1974. On June 25th, 1974, a petition for post-conviction relief and for writ of habeas corpus was filed on behalf of petitioner alleging he was denied due process and equal protection of the law under both the Constitution of the United States and the Constitution of Tennessee by virtue of the fact that (1) his request for street clothing to be worn at his trial, made at the penitentiary, was denied; (2) he was tried in prison clothing with numbers stamped across the shoulders and this deprived him of the presumption of innocence; (3) failure of his trial counsel to request suitable clothing to be worn at trial, or to request a continuance for the purpose of obtaining such clothing, was tantamount to ineffective assistance of counsel.

By the first assignment here it is contended it was error for petitioner to be attired in prison clothes during his conviction trial.

Petitioner says he requested regular street clothing at the penitentiary prior to being taken to court for his trial. The transcript of the trial record does not show whether or not he was tried in prison clothing. The opinion of this court affirming the original conviction, William Carroll v. State, B-862, Davidson County (3/27/74), indicates that neither petitioner nor his attorney made any request that petitioner be allowed to dress differently than as he presented himself before the jury. This Court held that had petitioner made a request to be clothed in other than prison garb, it would constitute plain error to compel him to appear before the jury dressed as a prisoner, but in absence of such compulsion, it was not error for a prisoner to be tried in the clothing of his own choice, although that choice be prison garb. Dictum in the opinion suggests that failure to request civilian clothing might have been a tactical maneuver to engender sympathy on the part of the jury for one upon whom such a requirement was inflicted.

The Bill of Exceptions from the post-conviction hearing indicates that defense counsel obtained affidavits from petitioner’s counsel at the conviction trial and from the two State’s attorneys involved, but enlightens us no more than to show that these affidavits contained statements to the ef-feet that defendant was dressed as a prisoner with a number stamped upon his back. Why these affidavits were not made a part of this record is a matter which has not been made known to us.

The great weight of authority seems to be against the contention made by petitioner. In this court’s opinion affirming his conviction we said, “There is no need for remand in this case since we are treating the issue as though conceded by the State that defendant was clothed in prison garb during his trial in overruling the assignment.” In Hancock v. State, No. 2964, Bedford Criminal, Nashville, January 1972 (5/25/72) this Court said:

“We hold that an accused who wants to be tried in civilian clothes must, before trial, make his request to the trial court before the state can be held accountable for his being tried in jail clothes. He cannot remain silent and thereafter complain.”

In the Hancock case, a petition for habeas corpus in the Federal District Court was denied for failure to allege the violation of any Federally protected right and in so doing the Court held that trial in a jail uniform is not inherently prejudicial and the procedural right to be tried in civilian clothing may be lost by failure to assert that right in a timely manner. See Hancock v. Rose, 365 F.Supp. 1341 (E.D.Tenn.1972) in which the Sixth Circuit Court of Appeals affirmed without published opinion stating in their order that petitioner “has failed to advance his claim in timely fashion and has waived same.” (486 F.2d 1404, 6th Cir. 1973). The United States Supreme Court denied certiorari at 415 U.S. 930, 94 S.Ct. 1441, 39 L.Ed.2d 488 (1974). The nature of clothing worn by a defendant at his trial is not inherently prejudicial of his right to a fair and impartial trial. Watt v. Page, 452 F.2d 1174 (10th Cir. 1972), cert, denied, 405 U.S. 1070, 92 S.Ct. 1520, 31 L.Ed.2d 803 (1972). A defendant and his attorney have the burden of making known to the court that the defendant desires to be tried in civilian clothes before the State can be held accountable for his being tried in jail clothes. United States ex rel. Stahl v. Henderson, 472 F.2d 556, 557 (5th Cir. 1973), cert, denied, 411 U.S. 971, 93 S.Ct. 2166, 36 L.Ed.2d 694 (1973). The fact that a defendant is dressed in prison clothes at the time of his trial is not so prejudicial as to rise to the level of deprivation of due process. May v. Peyton, 268 F.Supp. 928, 931 (W.D.Va.1967). In the absence of a showing of prejudice there is no denial of a fair trial because an accused appears before the jury in prison uniform. Hancock v. State, supra; Xanthull v. Beto, 307 F.Supp. 903 (S.D.Tex.1970); Hall v. Cox, 324 F.Supp. 786 (W.D.Va.1971). Where, as this court held in the present case, the evidence of guilt is clear and overwhelming an accused is not prejudiced by allowing the jury to see him in prison or jail clothing. Xanthull v. Beto, supra; Williams v. Beto, 364 F.Supp. 335 (S.D.Tex.1973); People v. Shaw, 7 Mich.App. 187, 151 N.W.2d 381 (1967); Lenhart v. State, 503 P.2d 918 (Okl.Crim.App.1972); Atkins v. State, 210 So.2d 9, 10, 11 (Fla.App.1968). Where no prejudice is indicated by the jury’s verdict, the trial of a defendant in prison attire is harmless error. T.C.A. Sec. 27-117; 24A C.J.S. Criminal Law Sec. 1898, pages 957-958, and cited cases; McFalls v. Peyton, 270 F.Supp. 577, 579 (W.D.Va.1967); Collins v. State, 70 Okl.Crim.App. 340, 106 P.2d 273 (1940). The appearance of a criminal defendant in prison clothing before a jury has also been held harmless error where the jury knew of his convict status in some other manner than seeing his prison clothes, as in the case before us. Hill v. State, 251 Ark. 370, 472 S.W.2d 722 (1971); People v. Coleman, 32 Cal.App.3d 853, 108 Cal.Rptr. 573 (1973); Sharpe v. State, 119 Ga.App. 222,166 S.E.2d 645 (1969); State v. Alton, 139 Mont. 479, 365 P.2d 527 (1961); Lenhart v. State, 503 P.2d 918 (Okl.Crim.App.1972); State v. Fair, 28 Utah 2d 242, 501 P.2d 107 (1972). It is difficult to conceive why it should be strange or prejudicial for a jury to observe an individual who has been arrested, charged, and in custody for a criminal offense, to be attired in jail clothing when it is no more than common sense that he is either in custody or on bond for the offense for which he is presented for trial.

By the second assignment it is said the trial judge at the post-conviction hearing erred in refusing to consider evidentiary material which he had previously authorized.

This assignment is not borne out by the record. The trial judge allowed the original hearing on the post-conviction petition to be continued for the purpose of giving counsel the opportunity to present evidence from petitioner’s trial counsel as well as from the district attorney’s general who prosecuted the case. Affidavits were obtained but are not included with this record. The Bill of Exceptions is not clear regarding the contents of the affidavits. This court cannot rule by speculation. We have previously rejected petitioner’s contention that his trial attorney was incompetent and inadequate in our ruling affirming the conviction judgment.

There is no evidence that petitioner did not receive a fair and proper trial, nor that the contentions raised in the post-conviction petition were not duly considered in his original appeal.

The judgment of the trial court is affirmed.

GALBREATH and DUNCAN, JJ., concur.


author:
GALBREATH, Judge.
      O’BRIEN, Judge

text:
    James Larry DEPUE et al., Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Sept. 18, 1975.
    Certiorari Denied by Supreme Court Dec. 30, 1975.

      William W. Petty and Jon G. Roach, Knoxville, for Depue.
    George W. Ridenour, Jr., Clinton, and W. Zane Daniel, Knoxville, for Lowe.
    Robert M. Stivers, Jr., and J. Anthony Brown, Knoxville, for Mellon.
    R. A. Ashley, Jr., Atty. Gen., Weldon B. White, Jr., Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Ralph E. Harwell and James L. Jones, Asst. Dist. Attys. Gen., Knoxville, for defendant in error.
   GALBREATH, Judge.

OPINION

Unquestionably, from the sordid record before us, the plaintiffs in error abducted, robbed and raped their hapless victim after forcing her at the point of a stolen pistol to get in a stolen automobile as she walked towards her place of employment along a Knoxville street around 8:00 a. m. on the 16th day of December, 1973. All four defendants, who were identified by the victim in court, gave detailed statements in which they admitted participation in the crimes. One of them, Troy Lynn Martin, is not appealing and both defendants James Larry Depue and Charles Edward Lowe changed their pleas from not guilty to guilty in the rape indictment while maintaining their not guilty pleas in the armed robbery case.

It is only the complete and unequivocal demonstration of guilt that allows us to affirm parts of judgment below in which plaintiffs in error Depue and Lowe were sentenced to twenty-five years for robbery and seventy-five years for rape, Glen Edward Mellon to thirty years for robbery and seventy-five years for rape, and Martin to ten years for robbery and thirty years for rape. In this case the prosecution succumbed to what is unfortunately in many instances the irresistible urge to overprove the State’s case and introduced over objection irrelevant and immaterial proof of a number of other crimes that had no justiciable bearing on the issue of guilt or innocence of the crimes charged.

It is generally agreed that evidence of other crimes by defendant is not admissible merely to prove his disposition to commit such a crime as that on trial; but such evidence is admissible when it is relevant to prove some other material issue on trial; for instance, when it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan for commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) the identity of defendant on trial. Carroll v. State, 212 Tenn. 464 at 477, 370 S.W.2d 523 at 529.

In the confessions as admitted for the jury’s consideration, the entire events of a two day spree of criminality involving the four young defendants was described. A Chevrolet car was stolen; they held-up a man and took a rifle the victim saw in the back seat of another stolen automobile, a Gremlin, into which she was forced when threatened with the pistol stolen in yet another larceny.

While it was perfectly proper to prove that the victim was forced to enter a car at the point of a pistol and that she saw a rifle while in the car, the fact that these articles of personalty were stolen in unrelated acts of crime served no purpose at all in the ascertainment of truth. They did not aid in establishing the identity of the defendants, all of whom admitted their participation and were singled out by the prose-cutrix as her assailants. Proof of the other crimes did not serve to establish a motive. There is no suggestion that either of the two stolen automobiles were taken in order that the rape of the victim, or any other female, might be effectuated since it is clear the defendants just happened upon their last victim. No claim could possibly be made that the proof was necessary to refute a defense theory that the crimes resulted from a mistake or accident and, as noted above, it was not necessary to prove any of the many other crimes committed to establish the offenses for which the defendants were on trial.

The reason for the rule prohibiting proof of crime other than that charged was discussed by this Court in Dix v. State, 4 Tenn.Cr.App. 412, 472 S.W.2d 243:

Guilt by innuendo, guilt by reputation, guilt by presumption based on past wrong doing, is nebulously fixed at best; and the inferences are difficult to rebut. To allow such evidence would place a defendant in the untenable position of having to defend himself against an accusation not set out in the indictment, a primary purpose of which is to acquaint one accused of crime of the nature of the charges against him. In spite of this hardship, if the evidence of past wrong is relevant to the issues under investigation, it is admissible. Carroll v. State, supra . If the presumption of innocence is to have valid meaning, it cannot be lacerated by the presumption of guilt that comes to a reasonable mind when confronted with proof that the accused is the type of person who, based on past conduct, would do the sort of thing of which he stands accused.

It results that the admission of the proof of unrelated crimes committed over the two day period preceding the rape and robbery of the victim in this case was error. However, in view of the overwhelming competent proof establishing guilt beyond any reasonable doubt, we hold that its introduction was harmless so far as it relates to that issue. It might be argued that the punishment imposed could have been influenced by permitting the jury to know of the other crimes. Indeed it seems highly probable that it may have.

We feel that under the circumstances the portions of the judgment relating to punishment should be conditionally vacated and the case remanded for the sole purpose of resentencing, either by agreement of the parties acceptable to the trial court or by a jury charged only with the duty of fixing punishment. Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738.

Numerous other assignments of error have been made. Some complain of the conduct of the trial — refusal to grant severances, claimed separation of the jury, number of challenges allowed each defendant, admission of testimony of witnesses not listed on the indictment and the reopening of the State’s case — and these are without merit. While the confessions of each defendant also named the codefendants, a charged violation of Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, we think this situation is controlled by O’Neil v. State, 2 Tenn.Cr.App. 518, 455 S.W.2d 597, where similar facts (all defendants confessions admitting with limiting instructions) were held not to be a violation of the rule in Bruton.

The charge given by Judge Duncan was full and compete and assignments relating to it are overruled.

Judgments conditionally vacated and remanded.

O’BRIEN, J., and C. ALLEN HIGH, Special Judge, concur.

O’BRIEN, Judge

(concurring).

I concur in the result reached in this case. The trial court allowed the admission of confessions of each of the defendants relating the facts about several other criminal acts which had taken place over a two day period prior to the offenses for which they were on trial. Defendant Mellon had filed a written motion to suppress, specifically requesting that no evidence be introduced relating to other crimes purportedly committed. Motions to suppress by the other defendants were made orally. After an out of jury hearing the trial judge found that the statements of each of the defendants was voluntarily made at a time when the defendants were competent to make the statement. He found that the contents of the statements included events which transpired somewhere between 20 and 30 hours prior to the time that the rape and robbery of the victim in this case took place. That this was one continuing situation and the state was entitled to introduce the entire statement to tie the whole story together. That it was “proper to admit testimony, even though it may show the defendant may have committed or been implicated in some other crime other than that for which he is being tried, if it’s necessary to show identity, guilty knowledge, motives, schemes, or series of crimes. In other words, if it sheds light on the case and the charge that’s on trial, it’s all admissible.” He ruled that these matters should be left in for the jury to weigh.

Where a confession indicates that the accused has been guilty of another offense in addition to that for which he- is being tried that part of the confession relating to the distinct offense is inadmissible if it can be separated from the portion of the confession relating to the charge in issue. Rounds v. State, 171 Tenn. 511, 106 S.W.2d 212; Grove et al. v. State, 211 Tenn. 448, 365 S.W.2d 871.

In addition to the confessions of the individual defendants, the court allowed testimony of three witnesses to be introduced in reference to other robberies for which the defendants were under indictment. He ruled that the testimony of these witnesses should be admitted for the same reasons which the full confessions of the defendants were allowed, that is, that the prior robberies were all part of a series of events which took place.

The identity of the defendants in this case had been accomplished, and was positively fixed in connection with the offense on trial. The evidence relating to their earlier escapades was wholly immaterial and bore no relevance to the offense on trial. Woodruff v. State, 164 Tenn. 530, 51 S.W.2d 843; Warren v. State, 178 Tenn. 157, 156 S.W.2d 416; Harris v. State, 189 Tenn. 635, 227 S.W.2d 8; Mays v. State, 145 Tenn. 118, page 141, 238 S.W. 1096; and Pruitt v. State, 3 Tenn.Cr.App. 256, 460 S.W.2d 385. It was unnecessary to introduce evidence of the other robberies which had very little, if any, logical connection between them and the crime for which these defendants were charged. The evidence of guilt of the unrelated crimes had no tendency to show defendants were the persons who committed the offenses for which they were charged. The magnitude of the sentence imposed in this case by the jury is indicative of the prejudice incurred by defendants through the admission of this evidence. While the sentences are within the limits prescribed by the statutes for the offenses of rape and armed robbery, we cannot speculate on the possibility that the jury was or was not prejudiced by the erroneous admission of this improper evidence. Under the circumstances, the only alternative to the action suggested by my Brother Galbreath, would be to remand the case for a new trial. This is not a tolerable alternative under the overwhelming and positive evidence of the guilt of defendants.