author: McMILLIAN, Judge.

text:
    Stanley Cleveland BROWN, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 36362.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 12, 1975.

      Hayes & Heisler, Daniel B. Hayes, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Timothy J. Verhagen, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant Stanley Cleveland Brown appeals from the denial by the St. Louis County circuit court of his motion to vacate his judgment and sentence under Supreme Court Rule 27.26. On March 10, 1972, appellant pleaded guilty to an amended information charging him of attempting to obtain a controlled substance, schedule III, by deceit, in violation of §§ 195.017(6)(2)(a); 195.170(1), RSMo Supp. 1973. The court suspended the imposition of the sentence and placed appellant on probation for two years. In October, 1973, the court found that appellant had violated a condition of his probation and sentenced him to serve ten years in the custody of the Missouri Department of Corrections.

On January 11, 1974, appellant filed the instant petition claiming that the court erred: (1) in accepting his guilty plea because there was no valid information pending against him at the time of his plea; (2) in failing to inform him of his right to compulsory process for witnesses; (3) in finding that he had intelligently and knowingly waived his right to confront witnesses; (4) in making no attempt to ascertain if the plea was made under the influence of drugs; and (5) in imposing a harsh and unusual sentence. For reasons stated herein, we find no merit to appellant’s contentions and accordingly affirm the judgment of the circuit court.

At the time appellant entered his plea of guilty, the state informed the court that desoxyn, the descriptive term used in the information, was the commercial name for methamphetamine hydrochloride, a proscribed drug under schedule II; and orally moved the court for leave to amend the information to include the chemical name. Prior to entering his plea of guilty, appellant stated not only that he had no objections to the amendment, but also he announced to the court that he waived the formal filing of an amended information.

Briefly thereafter, the state announced to the court, in appellant’s and his counsel’s presence, that it was unsure of the law on schedule II. After a short recess, the state announced that desoxyn and methamphetamine hydrochloride were proscribed in schedule III rather than schedule II. In this posture, once again the state requested leave of court to amend the information to correctly charge a schedule III violation. After an inquiry by the court as to whether appellant had any objections, leave was granted to the state to make the requested amendment. Once again, appellant pled guilty to attempting to obtain a schedule III controlled substance by deceit and waived the formal filing and reading of the amended information. The effect of the amendment charging a violation under schedule III rather than schedule II was to reduce the amount of punishment that could be assessed by the court.

Appellant’s claim that he was improperly charged is without merit. Granted desoxyn, the brand name for methamphetamine hydrochloride, is a schedule III violation rather than a schedule II violation as charged in the original information, but the error, if any, was cured by the two amendments because (1) the court granted the state leave to orally amend the information to set forth the proper charge; (2) appellant, although given the opportunity to object, stated he had no objections; (3) appellant, in open court, formally waived the filing and reading of the amended information; and thereafter (4) the court accepted appellant’s plea of guilty to the charge as amended.

Since appellant eventually entered his plea of guilty to attempting to obtain a controlled substance proscribed by schedule III, the question thus becomes whether or not the trial court abused its discretion in allowing the two amendments.

The first amendment merely described the proscribed controlled substance contained in the information by adding the chemical name for desoxyn. Appellant’s argument that because the trade name “de-soxyn” does not appear on the Secretary of State’s list, he could not be apprised of the fact that he was guilty of an offense is unavailing. In State v. Scarlett, 486 S.W.2d 409, 411 (Mo.1972), the court ruled it was not error to use the trade name as long as the possession of the drug in question was prohibited by statute and defined the drug in the statute to include the chemical name. See also State v. Stavricos, 506 S.W.2d 51, 55 (Mo.App.1974), in which defendant argued that the information charging him with unlawfully possessing morphine sulphate and pethidine hydrochloride was fatally defective because those two substances were neither listed in the statute nor included on the list of drugs prepared and filed by the division of health per § 195.230. In Stavricos the court stated that since the statutory listings included any derivative of opium and salts of pethidine, their listing by the division of health was not required.

Besides, § 195.016 provides that controlled substances listed in §§ 195.010 to 195.320 are included by whatever official, common, usual chemical or trade name designated. In our opinion based upon Scarlett, Stavricos and § 195.016, no error would have been committed even if the court had refused the requested amendment either to substitute the chemical name or include it additionally as was done in this case. Consequently, since the information charging appellant with an offense under § 195.170 alleged all of the essential facts constituting the offense charged, and nothing of any substance was omitted which could have misled or prejudiced appellant, we find no error either as to permitting the first amendment or proceeding with the guilty plea. Rule 24.02; State v. Aston, 412 S.W.2d 175, 182 (Mo.1967); State v. Fleming, 518 S.W.2d 449, 451 (Mo.App.1975).

Likewise, we find no merit to appellant’s attack upon the second amendment. Not only because appellant failed to object and waived the formal reading of the corrected information, but also, and more important, because Rule 24.02 authorized a court in its discretion to permit an amendment to an information at any time before verdict if the requested amendment neither charges an additional offense nor prejudices any substantial rights of a defendant. Appellant neither apprises us as to how or why he is prejudiced, nor do we find that an additional or different offense was charged. Here appellant throughout the entire proceedings was charged with the same offense, i. e., attempting to obtain a controlled substance by deceit. §§ 195.017 and 195.170. Inasmuch as the original information, prior to amendment, charged an offense that carried a more severe penalty, the amendment actually favored appellant by exposing him to a lesser penalty. Thus, appellant was not prejudiced by the amendment, and the finding and judgment of the court were not clearly erroneous. Rule 27.-26(j); Hall v. State, 496 S.W.2d 300 (Mo.App.1973).

Next, appellant complains that the court neither informed him of his right of compulsory process nor inquired of his drug usage. We find no merit to either complaint. The trial court found that the plea was voluntarily and understandingly made. Our reading of the transcript of the guilty plea proceeding demonstrates beyond any doubt that the court, pursuant to Rule 25.-04, interrogated appellant in fine detail regarding the voluntariness of his plea before the court accepted it. The court also found that it had no knowledge that appellant was a drug user. At the evidentiary hearing, appellant introduced no evidence on this issue other than his bold assertion that the record would so show. It would serve no useful purpose nor have any precedential value to pursue either claim of error any further, since we find that the trial court’s findings are not clearly erroneous.

Appellant failed to mention in his motion to vacate and set aside judgment any claim that his plea was involuntary because the court failed to reinterrogate him subsequent to the amended information. Therefore, this assignment of error is not before us, since it was not properly preserved for review. Maggard v. State, 471 S.W.2d 161 (Mo.1971); Griffith v. State, 504 S.W.2d 324 (Mo.App.1974).

Finally, the punishment assessed by the court was within the range fixed by the legislature, § 195.270; thus we find no error in this regard.

Judgment affirmed.

SIMEONE, P. J., and GUNN, J., concur.

      . All statutory references are to RSMo Supp. 1973 unless otherwise stated.

      . See Blakeston’s New Gould Medical Dictionary, Second Edition (1956) p. 334.


source: Caselaw Access Project

author: HARBISON, Justice.

license: Public Domain

text:
    STATE of Tennessee, Petitioner, v. Carroll MORROW, Respondent.
    Supreme Court of Tennessee.
    Nov. 10, 1975.
    Tom Jennings, Asst. Atty. Gen., Nashville, for petitioner; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    James T. Bowman, Johnson City, for respondent.
   OPINION

HARBISON, Justice.

Respondent was convicted in the Criminal Court of Washington County, Tennessee for concealing stolen property of a value of more than one hundred dollars, in violation of T.C.A. § 39^4217. By a divided decision, the Court of Criminal Appeals reversed and remanded because of legal insufficiency of the indictment and the evidence. It found all of the other assignments of error to be without merit.

This court granted a petition for certiora-ri filed on behalf of the State to consider the issue on which reversal had been ordered. Subsequently counsel for respondent also filed assignments of error with this Court, repeating a number of his contentions made and overruled in the Court of Criminal Appeals. We have considered these assignments of error, and in our opinion they were properly dealt with by the Court below and do not require further discussion.

Insofar as the sufficiency of the evidence to convict is concerned, we agree with the following statement from the opinion of the Court of Appeals.

“There can be no question of Morrow’s guilt, based upon his own testimony. He claimed that the stolen property was stored in his house by the thieves, that he demanded that it be moved, and he drove the car which carried it away. Most of the stolen property was dumped in a river, Morrow driving the car that carried it there.”

In the indictment, respondent was charged with stealing a number of items of electronic equipment, such as projectors and record players and also a musical instrument, “the property of West View School, which had been, before that time, feloniously stolen, taken and carried away by someone to the Grand Jurors unknown . ..”

The Court of Criminal Appeals reversed and remanded the case upon the ground that there was no evidence in the record as to the nature of the “West View School”, showing whether it was incorporated, an unincorporated association, a public school or a private school.

The Court of Criminal Appeals found, and the record is indeed uncontradicted on the point, that there was no variance between the indictment and the evidence itself. All of the proof was that the property in question was taken from the West View School, that it had the name of the school stenciled on it, and the principal of the school even testified as to the purchase price of the equipment and as to the rooms in the school building where it had been kept prior to being stolen.

As pointed out in the dissenting opinion in the Court of Criminal Appeals, no question was made in the trial court as to the sufficiency of the indictment, or as to the capacity of the alleged owner of the property to own and control the same. None of the witnesses was asked by counsel either for the State or for respondent as to whether the school was or was not a county school, but in his motion for a new trial, respondent in effect conceded that the school was part of the Washington County public school system. Two assignments in the motion for a new trial allege error on the part of the trial court with respect to sections of Title 49, Chapter 8, Tennessee Code Annotated, dealing with custody of school property. Specifically, the eleventh and twelfth grounds of the motion for a new trial are as follows:

“11. There is a fatal variance in the indictment wherein the property is described as being property of Westview School, whereas Tennessee Code Annotated 49-813 provides that ‘custody of all county school property shall be with the county board of education.’
“12. The Court erred in failing to instruct the jury as to law (TCA 49-813) pertaining to custody of school property.”

Inasmuch as there was absolutely no challenge to the capacity of the school to own and control the property in the present case, and inasmuch as the motion for a new trial concedes that the property was that of a county school, we are unable to agree with the Court of Criminal Appeals in its reversal and remand of this case.

T.C.A. § 5-103 provides:

“Every county is a corporation, and the justices in the county court assembled are the representatives of the county, and authorized to act for it.”

T.C.A. § 49-813, in pertinent part, provides:

“The custody of all county school property shall be with the county board of education. Said board may designate the principal teacher of the local school, during the school term, or the truancy officer, to look after the protection and preservation of school grounds, houses, and equipment . . ..”

There is no question in the present case but that the school principal of West View School had the property in her care, custody and control. As previously stated, she described the purchase price of the equipment, where it was stored, and described the stencils bearing the school name which had been placed on each item, gave records of the serial numbers and complete description of the property involved.

There simply could be no question in this case but that the accused was fully aware of the property which he was charged with concealing, and that he would be amply protected under the indictment and evidence introduced here from any further prosecution involving the concealment of the items in question.

We recognize, as pointed out by the Court of Criminal Appeals, that there may not be complete clarity regarding some of the pri- or decisions of this Court on the subject of the requisite proof concerning ownership of property involved in various criminal offenses, such as larceny, burglary, or receiving and concealing stolen property.

The statute in question refers to “goods over the value of one hundred dollars ($100), feloniously taken or stolen from another, or goods obtained by robbery or burglary . . ..” The statute requires knowledge on the part of the accused that the property had been so obtained and that he act “with the intent to deprive the true owner thereof . . ..”

It has previously been held in this state that it is not necessary in an indictment for receiving or concealing stolen property that the grand jury name or describe the thief, so that the fact that the grand jurors in the present case reported that the name of the person committing the theft was unknown to them did not render the indictment insufficient. Cobb v. State, 201 Tenn. 676, 301 S.W.2d 370 (1957).

It has been held also that it is not necessary to include the name of the owner of the stolen property in the indictment, but that if the name is included, it becomes a part of the description of the property so that the proof must conform to the indictment. Daughtery v. State, 221 Tenn. 56, 424 S.W.2d 414 (1968). In the latter case defendant was charged with larceny, receiving stolen property and unlawful use of an automobile, which was described as being the property of Charles D. Burroughs. The evidence, however, showed that title to the automobile was in another, and this Court reversed and remanded because of the variance.

In Johnson v. State, 148 Tenn. 196, 253 S.W. 963 (1923), the reason for such strictness was discussed in some detail. The Court pointed out that in order for the accused to have protection from further prosecution under a plea of former acquittal, strict conformity between the evidence and the indictment was required. In that case the accused was charged with theft of an automobile belonging to a named corporation which was stated in the indictment to be incorporated under the laws of Tennessee. The evidence showed that the corporation actually was chartered under the laws of Indiana, and this was held to be a fatal variance.

In the course of the opinion the Court said:

“It was wholly unnecessary that the indictment in this case should contain the averment that the corporation named as the owner of the automobile was existing by virtue of the laws of any State. It would have been sufficient if the indictment had simply described the owner as a corporation, and parol evidence of the existence of the Morgan Hitchcock Company as a de facto corporation should have satisfied such averment.” 148 Tenn. at 198, 253 S.W. at 963.

Further the Court said:

“Although the description of the corporation as one existing by virtue of the laws of Tennessee was unnecessary, the fact of the existence of the corporation as an entity capable of owning the property was an essential fact necessary to be averred in the indictment. The description of the corporation as one having its existence by virtue of the laws of the State of Tennessee is therefore a description of the corporation, the existence of which was a necessary and essential fact to be proven in order to sustain the charge of larceny made in the indictment.” 148 Tenn. at 199-200, 253 S.W. at 964.

One of the leading cases on the subject in this jurisdiction is State v. Missio, 105 Tenn. 218, 58 S.W. 216 (1900). In that case the accused was charged with receiving stolen property belonging to a railway company. In considering the sufficiency of an indictment and of proof of this offense under the statute as it then existed, the Court said:

“It is not necessary to prove who stole the goods, nor the name of the party from whom taken; but it is necessary to prove the ownership, general or special, of some person, and the fact that they have been stolen from the true owner by some one, and have eventually been received by the defendant, knowing them to have been stolen, and with the intent on the part of the defendant to deprive the true owner thereof; and, when the ownership is laid in a certain person, it must be so proven.” 105 Tenn. at 223, 58 S.W. at 217.

The Court held, however, that it was not necessary in order to establish corporate existence to introduce a copy of the charter of the corporation, or prove its charter provisions as to capacity to own property either generally or specially. In that case the railway company was proved to be a common carrier, and the Court said:

“There can be no question, under this record, but that the goods were feloniously taken from the custody and temporary ownership of this company while in transit, and that they were in possession and ownership of them as a public carrier at the time they were stolen. We think this is sufficient evidence of corporate character and ownership, and it would be a rule too strict to require that, in this collateral, though essential, matter of ownership, the state must prove the corporate existence and character of the railway company by a copy of its charter, and that its charter was regular, and that it had complied with the law in regard to foreign corporations in order to do business or own property in the state; and such strictness would often defeat the ends of justice.” 105 Tenn. at 224, 58 S.W. at 217.

In the case of O’Brien v. State, 205 Tenn. 405, 326 S.W.2d 759 (1959), an indictment charged the defendant with receiving and concealing stolen property belonging to a Mr. Craig. The evidence indicated, how-ever, that some of the property was bought by a corporation and was held in the name of that company. Responding to a charge of a fatal variance the Court said:

“The proof though shows that Mr. Craig had bought all the stock in the corporation and was the sole owner. The variance of whether it was bought by Mr. Craig'individually or bought by the corporation does not make any difference.” 205 Tenn. at 422, 326 S.W.2d at 766.

At one point in the opinion the variance was referred to as being “immaterial”; further, the trial judge had instructed the jury that if the property did belong to the corporation instead of to Mr. Craig, they should acquit.

See also Chapple v. State, 124 Tenn. 105, 135 S.W. 321 (1910); Parton v. State, 3 Tenn.Cr.App. 191, 458 S.W.2d 646 (1970).

The sufficiency of indictments and the reasons for requiring allegations and proof of ownership of stolen property are found in Annots., 88 A.L.R. 485 (1934), 99 A.L. R.2d 813 (1965). There a number of cases from other states are collected, and it is apparent that a number of jurisdictions have relaxed the requirement that a right to own property be demonstrated when the name of the owner imports an association, corporation or entity. Thus in the case of Gibson v. State, 13 Ga.App. 67, 78 S.E. 829 (1913), an indictment was found to be sufficient when the owner of the property was alleged to be the “Morning Star Colored Baptist Church”, and this name itself was held to imply the right to possess property suitable for church purposes. The name “Newton County Farm Bureau” was held to be sufficient to imply the capacity to possess property, even though it was unclear whether the owner was a corporation or association. Davis v. State, 196 Ind. 213, 147 N.E. 766 (1925). See also 4 Wharton’s Criminal Law and Procedure § 1786, pp. 608-609 (Anderson 1957).

The reasons for requiring allegations and proof of ownership of stolen property, in addition to protecting the defendant under a plea of former conviction or former acquittal, are said to be to enable the jury to determine whether the property proved to be concealed is the same property that was stolen and to inform the defendant of the precise charge against him so that he may prepare a defense.

In the present case the designation of the owner as “West View School”, in our opinion, was sufficient to protect the defendant from further prosecution, to advise him of the charges against him, and to enable the jury to determine that the property stolen from the school was identical to that concealed by the defendant.

As pointed out in the dissenting opinion below, by the filing of a plea in abatement, any preliminary question as to the sufficiency of the indictment could have been raised and disposed of prior to trial, and a more clear or specific statement of the capacity of the owner could have been obtained if deemed material to the defense. Where no such issue was made or developed either by preliminary motion, however, or during the course of the trial, and where there clearly could be no prejudice to the defendant under the facts of the case, we are of the opinion that a reversal is not required. We have previously pointed out that the defendant conceded in his motion for a new trial that the property did belong to a county public school, and the evidence clearly showed that it was in custody of proper county officials or employees at the time it was stolen.

The judgment of the Court of Criminal Appeals is reversed and the judgment of the trial court is reinstated at the cost of respondent.

FONES, C. J., COOPER and HENRY, JJ., and INMAN, Special Justice, concur.


author: HENRY, Justice.

text:
    STATE of Tennessee, Petitioner, v. Tommy GADDIS and Charles B. Davis, Respondents.
    Supreme Court of Tennessee.
    Nov. 10, 1975.

      R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Thomas Evans, Asst. Dist. Atty. Gen., for petitioner.
    Robert H. Crawford, Chattanooga, for Gaddis.
    Jerry Summers, Chattanooga, for Davis.
   OPINION

HENRY, Justice.

We granted certiorari in this case in order to deal with the recurring question of the entitlement of a defendant, in a drug case, to a sample of the contraband drug in order to procure an independent chemical examination and analysis.

I.

Defendants were jointly indicted on 9 January 1974 upon a charge of feloniously possessing a controlled substance with intent to sell or deliver. On 29 January 1974, the defendant Davis, pursuant to § 40-2044 T.C.A., moved the Court to “permit the defendant’s counsel to inspect and copy, photographs or, in the alternative, be furnished a copy of any books, papers, documents or tangible objects obtained from or belonging to defendant or obtained from others which are in possession of or under the control of the District Attorney’s Office”. On the same date, Davis’ counsel also moved for a list of witnesses. On the same date he moved for a copy of all exculpatory material and information and for a copy of all confessions. All these motions were sustained.

The defendant Davis, on 6 February 1974, moved the Court for “an order requiring the prosecution to supply the defendant with a sample of the drug specimen which is the basis for the prosecution in this case in order that the defendant may conduct an independent scientific analysis of said substance”. (Emphasis supplied).

This motion was made twenty-eight days after indictment and eighty-three days before trial. It was overruled on 18 February 1974.

On 23 April 1974, eight days before trial, the defendant Gaddis moved to quash the indictment and for copies of confessions, admissions against interest, a list of the names of those present when any oral confession or admission was made, and to dismiss because he was a “mere passenger” in the vehicle in which the contraband drugs were found. All motions were overruled on the opening day of the trial except as to the confessions.

Neither the technical record nor the bill of exceptions reflect that the defendant, Gaddis, ever made a motion for a sample. The technical record affirmatively shows that the failure to furnish a sample was not assigned by Gaddis as an error on motion for a new trial. This matter, if ever raised by Gaddis, was abandoned in the trial court.

Upon the trial, on 1 May 1974, the jury found Gaddis guilty of possessing marijuana and fixed his punishment at not less than one nor more than six months in the county workhouse. Davis was convicted of possessing controlled substances with intent to sell and sentenced to serve not more than five years in the state penitentiary.

Each perfected his appeal to the Court of Criminal Appeals. That court, in a split opinion, held that the trial court should have granted the motion of the defendants for a sample or specimen of the seized evidence. The judgment of the trial court was conditionally vacated and the case remanded for further consideration under the guidelines of McKeldin v. State, Tenn., 516 S.W.2d 82 (1974).

The defendant, Davis, and the State of Tennessee petitioned this Court for certio-rari. We granted the State’s petition. It assigns a single error, viz.:

The Court of Criminal Appeals erred by determining that the defendants were prejudiced by a denial of the motions for the inspection of the drugs.

This assignment is imprecise. The trial court granted the motion for an inspection. The denied motion was for a sample or specimen for use in conducting an independent scientific analysis. This is the issue the State briefs and this is the question prompting our grant of certiorari. The primary reason for our grant was to settle the law and determine proper procedures and guidelines for disposition of motions for samples or specimen in drug eases.

II.

The pertinent Tennessee statute, § 40-2044, T.C.A. reads as follows:

40-2044. Copying certain books, papers and documents held by attorney for state —Upon motion of a defendant, or his attorney, at any time after the finding of an indictment or presentment, the court shall order the attorney for the state, or any law enforcement officer, to permit the attorney for the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others which are in possession of, or under the control of the attorney for the state or any law enforcement officer. The order may specify a reasonable time, place and manner of making the inspection, and of taking the copies or photographs and may prescribe such terms and conditions as are just. However, such inspection, copying or photographing shall not apply to any work product of any law enforcement officer or attorney for the state or his agent or to any oral or written statement given to any such officer or attorney for the state or his agent by any witness other than the defendant. (Emphasis supplied)

The key words are inspect and inspection. Webster’s International Dictionary, Second

Edition (1948) contains the following definitions, inter alia:

inspect—
To view closely and critically, esp. so as to ascertain quality or state;
To grade, as lumber;
To look closely; to examine,
inspection—
A strict or prying examination.
Law. The critical examination of something as a part of a legal proceeding;
The examination of articles of commerce (under laws called inspection laws) to determine their fitness for transportation or sale.

Examination is listed as a synonym under inspection and inspection is shown as a synonym under examination.

In 42 Am.Jur.2d, Inspection Laws, § 1, the following definition will be found:

Inspection, under an inspection law, has been defined generally as an examination to determine whether the article inspected is fit for use or commerce, and, more specifically, as something which can be accomplished by looking at or by weighing or measuring the thing to be inspected or applying to it some crucial test, without resort to other evidence. (Emphasis supplied).

Section 40-2044 T.C.A. was an obvious genuflection by the legislature to the endless-seeming demands of constitutional due process. It recognizes that the promptings of fairness demand that a criminal defendant not be deprived of evidence vital to the presentation of a full and effective defense. It must be construed so as to accomplish the evident legislative intent.

There are circumstances under which a mere visual inspection of a tangible object would meet the demands of due process and the requirements of the statute. Por example, a mere visual inspection will enable a defendant to recognize his own pocket knife or gun and no critical test or analysis is necessary. There are other circumstances under which a mere visual inspection would be of no conceivable value and where expert assistance is required and scientific test and analysis is essential. Drugs obviously belong in the latter category. It would make a mockery of any acceptable standard of fairness to hold that a defendant, in a drug case, may look at the drugs, but may not cause them to be subjected to scientific test. We will not impute such an absurd intent to the legislature.

It is no answer to say that the State’s toxicologist, or other official, will make a competent and accurate analysis and make the result available to the defendant. This imputes to these examiners an aura of official infallibility inconsistent with the processes of the adversary system of the administration of criminal justice. We reject this approach.

This statute came before the Court of Criminal Appeals in Kerwin v. State, Tenn.Cr.App., 512 S.W.2d 632 (1972) (cert. denied).

In Kerwin the Court held that trial judge did not err in refusing to grant the defendant’s motion to inspect and make an analysis of the controlled substances, and stated in pertinent part:

Morover, (sic) from the date of their indictment, the defendants were the two persons in this world who were uniquely aware of whether or not they were involved in the sale of drugs of some nature, and whether or not the controlled substances in the possession of the State could or could not be an item of incrimination against them, and having this kno-ledge (sic) they were not entitled to its inspection, if such inspection would hamper the State in proceeding with its case. They are the only persons who knew whether or not they had in fact sold a controlled substance and therefore they were not denied anything needed in the ascertainment of truth. (Emphasis supplied) 512 S.W.2d at 635

The conclusion reached by the Court of Criminal Appeals is valid if, but only if, the defendant is guilty. We might rephrase this language to fit the case of innocent defendants and it might read substantially as follows:

(T)he defendants were the two persons in this world who were uniquely aware that they were not involved in the sale of drugs . . . and having this knowledge they were entitled to its inspection . They are the only persons who knew that they had not sold a controlled substance, and therefore they were denied that which was needed in the ascertainment of truth.

Indeed the statute is designed to enable the innocent to establish their innocence. We cannot indulge in an unqualified presumption of guilt in advance of trial.

The dissenting opinion in the instant case contains this astonishing reasoning:

The defendants in the present case knew the material confiscated from them was marijuana. The State’s toxicologist said it was. The defendants did not need and could not have profited by an independent scientific analysis of the material.

This might have been a correct legal conclusion before the Barons of England met old King John on the banks of the Rynny-mede in 1215 and wrested from him the Magna Charta; but the presumption of innocence is too firmly established as a part of the English common law and American jurisprudence for us to assent to this reasoning. This is a bald conference of absolute infallibility upon a state’s witness. It “was marijuana” because the state’s witness “said it was”.

We overrule so much of Kerwin as holds that a criminal defendant is not entitled to inspect and make an analysis of the seized controlled substance.

We hold that it was the legislative intent in the enactment of § 40-2044 T.C.A. to permit a criminal defendant to demand and receive a sample or specimen of a controlled substance in order to have an independent analysis made by an expert of his own selection, and at his own expense, but under such conditions as the trial judge may impose.

A motion for such inspection and analysis may be made at any time after arrest but must be made in ample time so as not to result in a postponement or continuance of the final hearing. A motion not so made may be treated as being filed untimely, in the discretion of the trial judge.

The District Attorney General will lodge with the court file, the original or a copy of all tests or analyses promptly upon their receipt. When a motion is made and sustained for a sample, defense counsel will follow the same procedure.

We recognize that there are cases wherein the contraband commodity will be destroyed, exhausted or consumed by the test or its identity will be altered by chemical analysis. When such a situation arises, good faith demands that no test or analysis be made except by agreement between the District Attorney and defense counsel, or until such time as defense counsel may arrange to have his own expert present at the test.

From this day forward these guidelines will apply. The orderly administration of criminal justice precludes their being applied retroactively. We adopt them as implementing instructions pursuant to the statute and under the inherent power of this Court.

III.

We note an emerging trend toward broad and reciprocal discovery in criminal cases. The days of trial by ambush are numbered. Rapidly fading is what Dean Pound described as the “sporting theory of justice”. In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Supreme Court said:

The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as ‘due process’ is concerned, for the instant Florida rule, which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence. 399 U.S. at 82, 90 S.Ct. at 1896.

We note the liberal provisions of Rule 16 of the Federal Rules of Criminal Procedure, and the amendments thereto which became effective August 1, 1975.

Full discovery is consonant with requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) holding that due process requires that the prosecution disclose evidence favorable to the accused.

We note a growing trend among other American jurisdictions requiring that in narcotics cases the defendant be permitted to inspect, test and analyze the contraband commodities. See 7 ALR 3d 8, Discovery— Prosecution’s Evidence and cases cited therein.

We have also noted American Bar Association Standards relating to Discovery and Procedure before trial. We note the General Preamble as contained in 1.1 as follows:

1.1 Procedural needs prior to trial.
(a) Procedures prior to trial should serve the following needs:
(i) to promote an expeditious as well as fair determination of the charges, whether by plea or trial;
(ii) to provide the accused sufficient information to make an informed plea;
(iii) to permit thorough preparation for trial and minimize surprise at trial;
(iv) to avoid unnecessary and repetitious trials by exposing any latent procedural or constitutional issues and affording remedies therefor prior to trial;
(v) to reduce interruptions and complications of trials by identifying issues collateral to guilt or innocence, and determining them prior to trial; and
(vi) to effect economies in time, money, and judicial and professional talents by minimizing paperwork, repetitious assertions of issues, and the number of separate hearings.
(b) These needs can be served by (i) fuller discovery, (ii) simpler and more efficient procedures, and (iii) procedural pressures for expediting the processing of cases.

We also note Standard 1.2 relating to the Scope of Discovery, as follows:

1.2 Scope of discovery.
In order to provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protection of persons, effective law enforcement, the adversary system, and national security.

Among the prosecutor’s performance of obligations listed in Standard 2.2 is the following:

(b)
(i) notifying defense counsel that material and information, described in general terms, may be inspected, obtained, tested, copied or photographed, during specified, reasonable times; and
(ii) making available to defense counsel at the time specifies such material and information, and suitable facilities or other arrangements for inspection, testing, copying and photographing of such material and information.

While we look upon these standards with general favor, we do not adopt them, at this time, because some of the situations they address are not before the Court in this controversy and for the further, and more important reason, that the commission charged with the responsibility of drafting the Criminal Rules of Procedure is actively engaged in the formulation of these rules and its final report is expected by the end of this year. We defer the formulation of further rules pending the incoming of the Commission’s report.

In the meantime, we have made it clear that this Court looks with favor on full and reciprocal discovery in criminal cases, to the maximum extent possible consistent with the constitutional rights of those accused of criminal acts.

IV.

In the ease of Tommy Gaddis, the Court of Criminal Appeals is reversed and the judgment of the trial court reinstated. If he, in fact, moved for a sample, it was not until the day of the trial. Such motion was untimely.

In the case of Charles B. Davis, we affirm the action of the Court of Criminal Appeals in vacating his judgment of conviction. We remand to the Criminal Court at Chattanooga with directions to that court to cause a sample of the contraband drugs to be made available for test and analysis by an expert of his own selection, and at his own expense, and under such restrictions as the trial judge may impose. In the event the analysis demonstrates that the seized materials are controlled substances, the judgment will be reinstated and immediately carried into execution. If the analysis demonstrates that they are not controlled substances, a new trial will be awarded. If the drugs are no longer available the McKeldin procedure will be followed.

The costs of this appeal are taxed against the State of Tennessee.

FONES, C. J., COOPER and HARBI-SON, JJ., and INMAN, Special Justice, concur.

      . The Supreme Court denied certiorari on August 12, 1974. There has been a substantial change in the composition of the Court since that time.


author: COOPER, Justice.

text:
    Ruth Mae Lavender VESSELS, Appellant, v. Challis Clayton VESSELS, Appellee.
    Supreme Court of Tennessee.
    Nov. 17, 1975.
    Harry L. Lillard, Oak Ridge, for appellant.
    Roger L. Ridenour, Clinton, Tenn., for aPPellee-
   OPINION

COOPER, Justice.

This is a divorce case. The principal issue is the validity of a decree of divorce announced by the trial court on June 21,1974, but not entered until August 28, 1974, two hours after the death of one of the parties.

The plaintiff, Ruth Mae Lavender Vessels, brought suit for separate maintenance, in the Law and Equity Court of Anderson County, against the defendant, Challis Clayton Vessels, who filed an answer and cross complaint for divorce.

The case came on to be tried on June 21, 1974. The parties then announced that the plaintiff was amending her complaint to seek an absolute divorce and that the parties had agreed on a property settlement. On hearing testimony in open court, the trial judge awarded the plaintiff a divorce. No entry was made in the minutes of the court, but the trial judge wrote “divorce granted, property awarded,” and his name and the date on the cover of the court file.

Thereafter, plaintiffs attorney sent a proposed decree to defendant’s counsel for approval. The decree was returned with a cover letter suggesting changes and additions to make the decree conform with the agreement of the parties and the notes in the trial judge’s file.

Plaintiff’s attorney then prepared, approved and forwarded to defendant’s counsel a second decree incorporating all the suggested changes and additions. The date the second decree was forwarded to defendant’s counsel is not shown in the record.

The defendant died at 1:30 p. m. on August 28, 1974. On the same day, at 3:30 p. m., the trial judge signed the decree approved by counsel for both parties and entered it of record. The decree as entered shows that the trial judge made a correction to show that the case was heard on the 21st day of June, 1974, rather than “_day of July, 1974.”

On August 29, 1974, counsel for defendant moved that the decree of August 28th, 1974, be entered nunc pro tunc to make it speak as of the date the decree of divorce was announced, June 21, 1974.

On hearing the motion, the trial judge “ruled that the motion was not well taken and should be overruled as not necessary since the court made a notation on the file of the case that the divorce was granted and the property was awarded on the 21st day of June, 1974.”

Counsel for plaintiff then moved to have the decree of August 28, 1974, set aside on the grounds that (a) the decree was entered after the defendant’s death, and (b) there was no agreement that the order was the one pronounced in the cause. This motion was overruled, with the result that the case was appealed.

It is suggested by the motion to set aside the decree and in argument and brief that the decree of divorce entered in this case was not in accord with the agreement of the parties or with the decree announced by the trial judge on June 21,1974. Where these differences exist is not pointed out either in the record or in argument or brief. The record indicates the trial judge had notes in his file relative to the decree made by him. Further, the record shows that the decree submitted to the trial judge and signed by him was approved by counsel for both parties. With the record in this state, we are constrained to hold that the decree entered by the trial judge was the decree pronounced by him on June 21, 1974.

Appellant further insists that the judgment was not effective for any purpose until entry and since defendant was dead at the time of entry, the judgment was entered too late to be effective.

Rule 58.02 of the Tennessee Rules of Civil Procedure provides that “[t]he filing with the clerk of a judgment, signed by the judge, constitutes the entry of said judgment, and, unless the court otherwise directs, no judgment shall be effective for any purpose until the entry of same. . . ” (emphasis supplied) It is noted in the comments of the advisory committee that Rule 58.02 is designed to make uniform across the state the procedure for entry of judgment and to make certain the effective date of a judgment.

In the case sub judice there is no order specifically stating the decree of divorce is to be effective at a date other than the date the decree was filed with the clerk after being signed by the trial judge. However, there is an order in the record clearly indicating the trial judge intended the divorce decree to be effective as of the date it was pronounced and that he believed he had done everything necessary to make the decree effective as of that date in entering “a notation on the file of the case that the divorce was granted and the property was awarded on the 21st day of June, 1974.” Cf. Rush v. Rush, 97 Tenn. 279, 37 S.W. 13 (1896); McCown v. Quillin, 48 Tenn.App. 162, 344 S.W.2d 576 (1960). This expressed intent, though bottomed on the wrong premise, in our opinion was a direction by the trial court that the decree of divorce be effective as of June 21, 1974. Accordingly, we affirm the trial judge’s action in overruling the motion to set aside the decree of divorce. Costs are adjudged against appellant, Ruth Mae Lavender Vessels, and her surety.

FONES, C. J., HENRY and HARBISON, JJ., and HYDER, Special Justice, concur.


text:
    STATE of Tennessee, Petitioner, v. Melvin James DIXON, Respondent.
    Supreme Court of Tennessee.
    Nov. 17, 1975.
    R. A. Ashley, Jr., Atty. Gen., Tom Jennings, Asst. Atty. Gen., Nashville, for petitioner.
    Wade M. Boswell, Jon G. Roach, Knoxville, for respondent.
   COOPER, Justice.

OPINION

Melvin James Dixon was convicted of first degree murder in two cases and was sentenced to serve sixty years in each case, with the sentences to run consecutively. On finding that the indictments upon which Dixon was tried were predicated on Chapter 192 of the Public Acts of 1973, which was ruled unconstitutional by this court in State v. Hailey, 505 S.W.2d 712 (Tenn.1974), a divided Court of Criminal Appeals reversed the convictions and remanded the cases for a new trial upon the homicide statutes in effect at the time of passage of Chapter 192 of the Public Acts of 1973. This court granted certiorari to review the action of the Court of Criminal Appeals.

The record shows that Dixon shot and killed Carl Anderson and Carroll Cameron on the evening of July 9, 1973. Dixon, together with Arthur Nance, Betty Jean Tate, and Aretha Styles, drove to the American Service Station at Heiskell and Johnston Streets in Knoxville. Nance began to fill the tank of the automobile with gasoline. The defendant started an argument with his girlfriend over who would pay for the gas. Carroll Cameron, a station attendant, then warned the defendant to watch his language since other customers were present. Thereafter, defendant paid Cameron for the gas but refused to leave the station until the station operator threatened to call the police.

On leaving the station, Dixon went to the home of a friend to get a gun. Then, in company with Nance and the two girls, Dixon returned to the service station to retrieve the automobile gas cap which Nance had failed to replace. Dixon drove to the office door and, without saying a word, gunned-down both Cameron, who had just answered the telephone in the office, and Carl Anderson, who was walking toward the office to take the call. The defendant shot each man twice. He then fled the scene, threw the murder weapon from the Gay Street Bridge, and concealed the automobile.

Dixon testified he acted in self-defense in shooting the two men. This testimony was contradicted by Dixon’s companions, the only other eyewitnesses to the crime, who testified that neither victim reached for a gun or had in any way provoked the defendant at the time of the shooting. The investigating officers also testified that after the shooting, Cameron was holding a telephone in his hand. Cameron did have a gun in his right rear pocket, but it was unfired. Anderson had no weapon on him.

These murders were committed and the defendant was indicted and tried after the effective date of Chapter 192 of the Public Acts of 1973 (May 8, 1973), which was “An ACT to amend Title 39 of the Tennessee Code Annotated to prescribe the death penalty for murder in the first degree and for other related purposes.” The Act amended numerous sections of the Tennessee Code Annotated. Material to a decision in these eases, the Act deleted “in [their] entirety” T.C.A. Sections 39-2402 (Murder in the first degree) and 39-2406 (Jury to fix punishment for murder in the first degree) and substituted therefor a new definition of first degree murder and a different punishment for the crime. The Act also provided that punishment was to be fixed by the jury in a proceeding separate from that in which the defendant’s guilt was determined. It was judicially determined by this court in State v. Hailey, 505 S.W.2d 712 (Tenn.1974) that the Act was unconstitutional for the reasons that:

“(1) [I]t contains more than one subject and (2) the title or caption gave no notice to the Legislature or to the public of some of the subjects contained in its body.”

Being an unconstitutional Act, Chapter 192 of the Public Acts of 1973 was void from the date of its enactment, and there could be no valid conviction under the Act. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Stone v. Wainwright, 478 F.2d 390 (5th Cir. 1973); Bannister v. United States, 446 F.2d 1250 (3rd Cir. 1971). See also O’Brien v. Rutherford County, 199 Tenn. 642, 288 S.W.2d 708 (1956); State v. Hobbs, 194 Tenn. 823, 250 S.W.2d 549 (1952). It does not necessarily follow, however, that the convictions in these cases are void. An unconstitutional act designed to amend or supersede an existing law does not repeal or change the former valid act but leaves it in full force and effect. McMinn County Board of Education v. Anderson, 200 Tenn. 333, 292 S.W.2d 198 (1956). And similarly a criminal statute superseded or repealed by an unconstitutional act is left unaffected by the passage of the void repealing act. State v. Kolocotronis, 73 Wash.2d 92, 436 P.2d 774 (1968). The effect then of the decision in the Hailey case, supra, declaring Chapter 192 of the Public Acts of 1973 void was to leave unaffected the prior statute defining first degree murder (T.C.A. Section 39-2402) and prosecutions for murder under indictments that conform with the requirements of that statute are valid unless prejudicial error was committed during the course of the trial.

In the case sub judice, the indictments under which Dixon was tried and convicted conformed in all respects to the requirements for first degree murder indictments under T.C.A. Section 39-2402 as that statute existed prior to enactment of Chapter 192. The evidence admitted under the indictments supported the jury’s finding that Dixon was guilty of murder in the first degree in each of the two cases. The instructions given to the jury by the trial judge, in all but one respect, paralleled full and complete instructions given in prosecutions for murder under indictments predicated on T.C.A. Section 39-2402. The only substantive difference in the instruction was as to the minimum punishment for the crime. Under the valid act the minimum punishment for murder in the first degree was confinement in the penitentiary for any period over twenty years. T.C.A. Sections 39-2405-2406. The invalid act of 1973, which was the basis of the trial judge’s instructions to the jury, provided for a minimum punishment of twenty-five years. Since the prosecution in these cases must be in accord with T.C.A. Sections 39-2402 and 39-2405, and 39-2406 to be valid, the instruction on punishment was erroneous. The question then is: Was the erroneous instruction prejudicial to the defendant? The defendant contends the instruction must by its very nature constitute prejudicial error since there is no infallible means for determining the sentence a jury would have imposed had it been correctly instructed as to the minimum sentence that could be imposed on a finding of guilty of murder in the first degree. The petitioner, on the other hand, considers the error to be harmless in light of the severe punishment handed down by the jury in each case. The jury fixed punishment in each case at thirty-five years more than the minimum the trial judge instructed them the law provided. It is thus obvious that the jury, regardless of which provision of the law was in effect, had no intention of giving the defendant the minimum term and that consequently the minimum term for the offense of murder in the first degree was not a material factor in their determination of the sentences. Error in charging the minimum sentence to be inflicted is harmless error where it is obvious that the error could not have affected the sentence determined by the jury. See Daniel v. State, 24 Ga.App. 557, 101 S.E. 812 (1919). Cf. Maxwell v. State, 97 Ga.App. 334, 103 S.E.2d 162 (1958); Patterson v. State, 42 Okl.Cr. 255, 275 P. 387 (1929); Jenkins v. State, 163 Tenn. 635, 45 S.W.2d 531 (1932).

From the above authorities and the record, we have concluded that the indictments in these cases met the requirements of T.C.A. Section 39-2402 and that no prejudice resulted to defendant from the error of the trial court in setting forth the minimum sentence that could be inflicted on defendant on a finding of guilty of murder in the first degree and that, consequently, the convictions of first degree murder in these cases are valid. The judgments of the Court of Criminal Appeals are reversed and the judgments of the trial court are reinstated.

FONES, C. J„ HENRY and HARBISON, JJ., and INMAN, Special Justice, concur.


text:
    VINSANT ELECTRICAL CONTRACTORS, Petitioners, v. AETNA CASUALTY & SURETY COMPANY, Respondents.
    Supreme Court of Tennessee.
    Nov. 24, 1975.
    Calvin N. Taylor, Cheek, Taylor & Groover, Knoxville, for petitioners.
    Robert R. Campbell, Hodges, Doughty & Carson, Knoxville, for respondents.
   OPINION

HENRY, Justice.

The sole issue before the Court is the proper interpretation of the “Broad Form Property Damage Coverage” endorsement or rider to a comprehensive liability insurance policy. We granted certiorari because this is a matter of first impression in this jurisdiction.

I.

The facts are either stipulated or are as contained in the undisputed testimony of a single witness as set forth in a proper bill of exceptions.

Petitioner, an electrical contractor, was engaged to install or mount, two 100 ampere circuit breakers in a panel board or switchboard located in the West Town Mall, a Knoxville area shopping center, in order to connect an air conditioning system for service to an additional shopping center tenant. While so engaged, one of its workmen inadvertently deposited or dropped a socket wrench in such manner that it came in contact with two “buss” bars producing phase to phase contact and a shortage which caused the entire switchboard to burn and blow up.

The Court of Appeals described the switchboard thusly:

The switchboard in question was a unit composed of many interrelated and interdependent parts, a complex, multi-compo-nent collection of electrical wires, switches, breakers, conductors, buss bars, etc., used to receive and direct the proper flow of electricity. The various parts were connected together or immediately adjacent to each other so as to constitute a collective unit called a “switchboard”. The property being worked upon, and damaged or destroyed, was therefore a single item of property which, though composed of many parts, was clearly a unit of property within itself, self-contained and a single item.

We adopt this description and concur in the conclusion that the damaged switchboard was a single, self-contained item of property.

Claim was made for the resulting damage and liability was denied on the basis of the “broad form” exclusion. This suit resulted.

The Chancellor held that there was no coverage and the Court of Appeals concurred in that conclusion.

So do we.

II.

The policy contains the conventional “care, custody or control” exclusion providing that there is no coverage as to:

. property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control.

This exclusion, however, is substantially liberalized by a Broad Form Property Damage Coverage endorsement which removes and “replaces” the “care, custody or control” exclusion and substitutes therefor, to the extent here pertinent, an exclusion of liability for damage sustained on or in connection with:

(d) that particular part of any property, not on premises owned by or rented to the insured,
(i)upon which operations are being performed by or on behalf of the insured at the time of the property damage arising out of such operation. (Emphasis supplied)

Thus the issue presented is not whether petitioner had custody, care or control of the switchboard, for this is an irrelevant consideration. Our concern is limited to the meaning of the phraseology, “that particular part of any property . . . upon which operations are being performed.”

This, of course, is a question of fact, and its determination will vary with the facts and circumstances of each particular case. It was the obvious intent of the insurance carrier to liberalize and expand coverage and the provision must be so construed. This conclusion is demanded by the fact that the exclusion is not standard but is incorporated by endorsement and only pursuant to the payment of additional premiums. No insurance company could, in good faith, charge, and no insured could, in good judgment, pay for, an endorsement that did not operate to provide additional coverage.

Under the factual situation in this particular case, we hold that the switchboard, in its entirety, or as a unit, is “that particular part” of the property “upon which operations are being performed.” We cannot so construe this provision as to limit the exclusion to the precise and isolated spot upon which work was being done. Such a construction would lead to illogical and absurd results and would completely nullify the intent of the endorsement. An exclusion so limited could well result in being, in practical effect, no exclusion at all. Such would abort the whole purpose of the exclusion. It was designed to liberalize but not liquidate the exclusion.

Cases construing the conventional “care, custody or control” exclusion are only pertinent in that they demonstrate the patent deficiency of such provisions and serve to point out conditions which lead insurers to offer and insureds to demand a more realistic exclusion.

Such a case is W. A. Hill v. United States Fidelity and Guaranty, 48 Tenn.App. 419, 348 S.W.2d 512 (1961), wherein the Court was dealing with the conventional exclusion. Work was underway on motors which powered a series of printing presses and were connected thereto by belts. The insured attempted to loosen a belt in order to guard against activation of the presses. Apparently the belt was not sufficiently loose and, as a result, one of the presses was damaged. The Court held that coverage had been properly denied on the basis of the press being under the care, custody or control of the insured.

Had the insured in Hill been covered by a “Broad Form” exclusion, he would have prevailed since the motors were “that particular part” of the property upon which operations were being performed.

In summary we hold that the “Broad Form” exclusion was designed to give liberalized and expanded coverage, over, above and beyond that provided by conventional “care, custody or control” exclusion and that coverage under the exclusionary endorsement is dependent upon the factual situation.

The judgments of the Chancellor and the Court of Appeals are

Affirmed.

FONES, C. J., COOPER and HARBI-SON, JJ., and HYDER, Special Justice, concur.

      . The entire exclusion reads as follows:
      II. BROAD FORM PROPERTY DAMAGE COVERAGE (Excluding Completed Operations)
      A. The exclusions relating to property damage to (1) property owned, occupied or used by or rented to the insured or in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control and (2) work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith, are replaced by the following exclusions (w) and (x):
      (w) to property damage
      (1) to property owned or occupied by or rented to the insured, or, except with respect to the use of elevators, to property held by the insured for sale or entrusted to the insured for storage or safekeeping,
      (2) except with respect to liability under a written sidetrack agreement or the use of elevators to
      (a) property while on premises owned by or rented to the insured for the purpose of having operations performed on such property by or on behalf of the insured,
      (b) tools or equipment while being used by the insured in performing his operations,
      (c) property in the custody of the insured which is to be installed, erected or used in construction by the insured,
      (d) that particular part of any property, not on premises owned by or rented to the insured,
      (i) upon which operations are being performed by or on behalf of the insured at the time of the property damage arising out of such operations, or
      (ii) out of which any property damage arises, or
      (iii) the restoration, repair or replacement of which has been made or is necessary by reason of faulty workmanship thereon by or on behalf of the insured; .


text:
    ELECTRO-VOICE, INC., Appellant-Defendant, v. Gray HURLEY, III, Appellee-Plaintiff.
    Supreme Court of Tennessee.
    Nov. 24, 1975.

      Clinton R. Anderson, Anderson & Anderson, Morristown, for appellant.
    John C. Porter, Newport, for appellee.
   OPINION

HARBISON, Justice.

This is a workmen’s compensation case in which appellee claims benefits because of an occupational disease, pursuant to the provisions of T.C.A. § 50-1101. The trial court found that the condition from which appellee was suffering “is not one of the occupational diseases mentioned in the code”, but nevertheless awarded permanent partial disability benefits. The employer has appealed.

There is no contention that the employer has elected to provide full coverage of all occupational diseases in accordance with T.C.A. § 50-1103. It was, therefore, incumbent upon the appellee to establish that the disease from which he is suffering was one of the diseases scheduled in T.C.A. § 50-1101, or a disease “which is so closely related as to be classified with” the scheduled diseases. Tennessee Tufting Company v. Potter, 206 Tenn. 620, 336 S.W.2d 539 (1960).

In the recent case of American Insurance Company v. Ison, 519 S.W.2d 778 (Tenn.1975), this Court reviewed the requirements for recovery for an alleged occupational disease and stated:

“Finally, if the alleged occupational disease is not one of those named in T.C.A., Section 50-1101, it must be established by medical or other appropriate expert witnesses that it is so ‘closely related’ to one of the named occupational diseases that it too, should be considered ‘occupational.’ By ‘closely related’ we mean (1) that the disease produces pathological effects in the employee which are substantially the same as those resulting from one of the named occupational diseases and (2) the disease in question is caused by the particular hazards of the employment which are known to also cause one of the named occupational diseases.” 519 S.W.2d 781.

In the present case it is established by material evidence that the employee is suffering from an allergic reaction to fumes and gases emitted in the manufacturing process which formed part of his working conditions. Although he was employed by appellant for a period of only two months, he began developing an allergic reaction to his working conditions after the first few weeks, and the medical testimony is that the employee was suffering from an inflammation of the nasal passages and sinuses, referred to as sinusitis and rhinitis. These are conditions affecting the upper respiratory system, and neither of the two physicians who testified in the case related these conditions in any way to any occupational disease listed in the statutes above referred to.

Although appellee testified that he was hospitalized on two occasions during September and October 1972, for a total of twenty-eight days, neither the hospital records nor the testimony of any attending physician have been supplied in the record. Appellee testified that one of the physicians in the hospital diagnosed his condition as “sinusitis and postnasal drip”.

After his period of hospitalization, the employee saw Dr. John H. Kinser of Morris-town, Tennessee, on three occasions during November and December 1972. Dr. Kinser testified that the employee was suffering from sinusitis and rhinitis, manifested by marked congestion, redness of the nasal passages, tenderness over the sinuses and some congestion in the eustacian tubes. He described the condition as an allergic reaction, which he related to the conditions of appellee’s employment, based upon the history given to the physician.

Describing the condition, Dr. Kinser stated that “the fortunate part about this sort of thing, it doesn’t develop insidiously deep in the tissues, it develops in the superficial structures of the nose, the sinuses, blocking of the ears and usually watering of the eyes and you can remove these people from it and get maybe less actual damage than you can your black lung disease where the coal dust settles into the deep part of the lungs.”

On cross-examination the following is found in the record:

“Q. Doctor, I want to name some diseases and I would like for you to answer after each one whether or not any of those diseases would be closely related or causative to sinusitis or rhinitis. The first one — Lead Poisoning?
“A. Lead poisoning, rhinitis, I believe you said, certainly could be a symptom associated in an individual who concurrently had lead poisoning, I don’t think that would be the cause of lead poisoning
“Q. How about Metal Fume Fever?
“A. I’m not familiar with that term, sir.
“Q. Silicosis?
“A. Silicosis of course is in the — I don’t know — how far do you want me to expand on these, Mr. Anderson, these things that you are naming of course are certainly different from sinusitis and rhinitis. Sinusitis and rhinitis actually are more — usually associated as being symptomatic diseases which certainly could be the precursor of a more serious underlying disease and I think we stated previously that that usually was the case in these sort of things.
“Q. Does he have any serious underlying disease that you know of?
“A. Well, obviously not or I would have stated so. That I know of, I didn’t say that he didn’t have them, I said I didn’t know of them, this man was only seen here on three occasions and we treated his acute inflammatory and allergenic situation, which often times is only the precursor of something much more serious.
“Q. Let me ask you like this, if he came in your office and your diagnosis showed that he had silicosis, would you have connected it with breathing of fumes on the job, as he described it to you?
“A. Silicosis, of course by definition is the deposition of silicon into the lung tissues and what gets to the lungs usually passes through the nose and therefore you would assume that it irritated it.
“Q. Your opinion in that case then will be that these fumes could have caused him to have silicosis?
“A. Of course not, sir, I don’t know what the fumes were, as you well pointed out, and the fact that we didn’t have x-rays of his chest, which is the only way silicosis could be diagnosed. The man’s complaints were not of that at all, and silicon — I don’t know whether these different fumes that he had contained these or not. Very well could be, if he was breathing fumes that contained silicon then he could very well have silicosis, but that was not what I was treating him for.”

On further cross-examination the doctor stated that he did not find any serious underlying systemic disorder, and that since he did not know the nature of the fumes to which the employee was exposed, it would be conjectural on his part as to whether any of the more serious complications manifested in the listed occupational diseases had developed.

Dr. Crampton Morris Helms examined the employee and testified on behalf of appellant. He was shown the statutory list of occupational diseases and testified:

“A All right. The list, there are twelve entities listed here which all pretty much relate to specific types of occupation and none of these specifically are related to sinusitis or pharyngitis — does that answer your question?
“Q What about rhinitis?
“A Rhinitis also none of them are specifically related to rhinitis.”

Based upon the foregoing, we are of the opinion that there was no material evidence to support the conclusion of the trial judge that the employee was entitled to disability benefits based upon an occupational disease. There is no evidence that the allergic or respiratory conditions from which he was suffering were sufficiently related to any listed disease as properly to be classified with it.

In view of the foregoing conclusion, it is not necessary to consider the other assignments of error filed on behalf of appellant.

The judgment of the trial court is reversed and the suit is dismissed at the cost of appellee.


author: MATHERNE, Judge.

text:
    STATE of Tennessee on relation of Ronald A. WEBSTER, District Attorney General for Knox County, Tennessee, Appellee, v. Marvin DAUGHERTY et al., Appellants.
    Court of Appeals of Tennessee, Western Section.
    Aug. 19, 1975.
    Certiorari Denied by Supreme Court Nov. 3, 1975.

      Myron C. Ely, Knoxville, for appellant Wells.
    William C. Koch, Jr., Asst. Atty. Gen., R. A. Ashley, Jr., Atty. Gen., Nashville, for appellee.
   MATHERNE, Judge.

The defendant Hubert Wells, owner of premises know as 25-70 Truck Club on Asheville Highway in Knox County, Tennessee, appeals from an order of the Criminal Court of Knox County, permanently enjoining him “from conducting, maintaining, or in any wise participating in: (a) the operation of a house of ill fame, a bawdy house, or brothel; and (b) soliciting and/or procuring for the purposes of prostitution and sexual immorality upon the premises described as Tract I in the original Petition,” and he is “. . . permanently and perpetually enjoined from participating in any of the above enumerated activities at any other place in Knox County, Tennessee.”

On appeal the landowner Wells insists: (1) the definition of “nuisance” in T.C.A. § 23-301, subsection 1, paragraph (c), enacted as Chapter 277, Public Act 1973, is over-broad and violates the state and federal constitutions; (2) the verbiage of subsection 2 of the same statute is overbroad in its application to the “owner” of the premises referred to; (3) there is no material evidence upon which to base the injunction against him as the owner of the premises; (4) the injunction against him is unconstitutionally overbroad, and is not authorized by the statute; (5) the court erred in failing to dismiss the petition as to Tract II described in the petition; and (6) he did not engage in the illegal activities, had no knowledge thereof, and should not be subjected to the embarrassment of an injunction against him.

I.

The record reveals the premises consist of two buildings, one used as a restaurant and referred to in the pleadings as Tract II; the other is the club and is referred to as Tract I. The unlawful acts were found to have been carried out on Tract I only.

By written lease dated September 20, 1972, Hubert Wells leased Tract I to Carol Randels and Glen M. Daugherty for a period of two years beginning October 1, 1972, “to be used by the Lessees for the operation of a legitimate and desirable truck stop, and no other.”

On January 25, 1973, the premises of the truck club was raided and six persons were arrested on various charges of operating a house of ill fame or bawdy house, prostitution, assignation, and aiding and abetting in prostitution. The record reveals these individuals pled guilty as charged in the General Sessions Court of Knox County, Tennessee, and were each fined $50.00 and the costs. On June 14, 1974, one Karen Carter was arrested at the premises and charged with prostitution, and Thomas Daugherty was arrested and charged with aiding and abetting prostitution. Both of these defendants pled guilty and paid a $50.00 fine.

The evidence reveals various agents of the Tennessee Bureau of Criminal Investigation made visits to the club and obtained evidence the practice of prostitution was about the main business of the club. The defendant Marvin Daugherty testified the purpose of the club was to run a house of prostitution for truck drivers. He stated the number of girls available varied from two to four, and they were local girls. The customers were basically restricted to truck drivers. The evidence does not establish the landowner had actual knowledge of the illegal activities. The landowner testified he was in the restaurant many times, but he was never in the club building. The record reveals considerable newspaper publicity concerning the many arrests and convictions growing out of the operation of the club.

II.

This lawsuit is brought by the state on relation of the District Attorney General as allowed by T.C.A. § 23-303. The petition alleges the maintenance of a public nuisance and prays the abatement thereof as defined and allowed by T.C.A. §§ 23-301 through 23-315.

The landowner claims the definition of “nuisance” as set out at T.C.A. § 23-301, subsection 1, paragraph (c), as enacted by Chapter 277, Public Acts 1973, is unconstitutionally overbroad, vague and indefinite. The statute complained of reads as follows:

“(c) ‘Nuisance’ means that which is declared to be such by other statutes and in addition thereto means any place in or upon which lewdness, assignation, prostitution, unlawful sale of intoxicating liquors, unlawful sale of any regulated legend drug, narcotic or other controlled substance, unlawful gambling, any sale, exhibition of possession of any material determined to be obscene or pornographic, quarreling, drunkenness, fighting or breaches of the peace are carried on or permitted, and personal property contents, furniture, fixtures, equipment and stock used in or in connection with the conducting and maintaining any such place for any such purpose. The term ‘lewdness’ includes all matter of lewd sexual conduct or live exhibition and shall include, but is not limited to possession, sale or exhibition of, any obscene films or plate positives, films designed to be projected upon a screen for exhibition, films or slides either in negative or positive form designed for projection on a screen for exhibition.”

The only lawsuit of which we have knowledge, dealing with the constitutionality of the above statute is the case of Airways Theater, Inc. et al. v. Phil M. Canale, Jr., et al., decided by a three judge panel in the Federal District Court at Memphis. The order of that Court was filed on January 18, 1974. The issue there seemed to be whether the references to lewdness and obscenity as used in the statute were unconstitutionally overbroad. The Court held those references were overbroad and struck various references to lewdness and obscenity from the statute, and concluded the statute could constitutionally read as follows:

“(c) ‘Nuisance’ means that which is declared to be such by other statutes and in addition thereto means any place in or upon which . . . assignation, prostitution, unlawful sale of intoxicating liquors, unlawful sale of any regulated legend drug, narcotic or other controlled substance, unlawful gambling, . quarreling, drunkenness, fighting or breaches of the peace are carried on or permitted, and personal property, contents, furniture, fixtures, equipment and stock used in or in connection with the conducting and maintaining any such place for any such purpose.”

We therefore accept the statute as approved by the federal court, and we will consider the present constitutional attack as relates to acts of prostitution and assignation.

The words of a statute, if of common usage, are to be taken in their natural and ordinary sense without a forced construction to limit or extend their meaning. Ellenburg v. State (1964), 215 Tenn., 153, 384 S.W.2d 29; Palmer v. State (1869) 47 Tenn. 82. When considered in relation to acts of prostitution and assignation, we hold the very words alone are sufficiently precise to put any reasonable individual on notice concerning what conduct is prohibited. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). And, it can be said that those “who desire to obey the statute will have no difficulty in understanding it.” Colten v. Commonwealth of Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972).

We conclude the definition of the word “nuisance” contained in the statute, as relates to prostitution and assignation cannot be deemed unconstitutionally over-broad, vague and indefinite.

III.

The defendant landowner argues T.C.A. § 23-301, subsection 2, violates Article 1, Section 8, and Article 11, Section 8 of the Constitution of Tennessee, and the Fourteenth Amendment to the Constitution of the United States, wherein that statute subjects the owner of the premises to in-junctive restraint for the sole reason he owns the premises.

Subsection 2 of the statute is as follows:

“Any person who uses, occupies, establishes, or conducts a nuisance, or aids or abets therein, and the owner, agent or lessee of any interest in any such nuisance together with the persons employed in or in control of any such nuisance by any such owner, agent or lessee is guilty of maintaining a nuisance and such nuisance shall be abated as provided hereinafter.”

In Weakley v. Page (1899) 102 Tenn. 178, 53 S.W. 551, the plaintiff Weakley sought the abatement of a nuisance allegedly existing on the adjoining property of the defendant Page. The facts were that Page had put one Mattie Vaughn in possession of the second story of his premises, and she and some ten or twelve other women were there conducting a bagnio. The bill alleged the plaintiff could not rent his property due to the activities illegally conducted on the defendant’s property, thus sustaining private and special damage due to the public nuisance. The bill alleged the defendant Page knew of the conduct of the people in possession of his premises and connived with them for the purposes of his premises being so used. On the issue of the alleged knowledge in the owner Page, the Court stated:

“In regard to the statement in the bill that Mr. Page was aware of the character of the use to which his building was put, we think it proper to say that we based our finding that the charge is true on the ground that he must be presumed to know the use to which his building is put; and also on the proof which shows that he gave his personal check for $1,028 to a furniture establishment in the city to fit up this house, . .

In State v. James, et al. (1940) 177 Tenn. 211, 145 S.W.2d 783, an action was brought to abate a public nuisance, alleged to be the illegal sale of intoxicating liquor and the keeping, maintaining or conducting bawdy or assignation houses. The facts establish the owners operated a hotel and the agents and employees of the owners did conduct such illegal activities on the premises. On the issue of knowledge in the owners, the Court held the owners bound by the acts of their agents and servants who operated the hotel, and proof of actual knowledge was not necessary in order to justify an injunction against them prohibiting such unlawful activity in the future.

In the case at bar the record reveals a written lease for a lawful purpose. There is no proof of actual knowledge of the nuisance in Wells. There is no proof of his conniving with the lessees in the maintenance of the nuisance as appeared in Weak-ley. There is no proof the parties who operated the premises in such manner as to constitute the place a nuisance were the agents or employees of Wells as existed in James. Here, we have premises lawfully leased but put to such illegal use by the lessee as to constitute the premises a nuisance under the statute, with no proven knowledge in the owner-lessor. Under such circumstances is it a denial of due process to subject the owner-lessor to the restrictions of a perpetual injunction that the premises not be so used in the future?

There is a conflict among the authorities on the point in issue. See: 66 C.J.S. Nuisances § 88b, p. 845; the cases annotated at 121 A.L.R. 642, et seq.; 58 Am.Jur.2d Nuisances, § 49, p. 616. Upon an examination of the cases, we conclude the better view to be the owner-lessor may be subjected to the writ enjoining him from permitting the premises to be a public nuisance in the future, even though he had no knowledge nor means of knowledge of the past illegal acts. And, the subjection of the owner to such injunction does not violate due process as guaranteed under the state and federal constitutions.

It must be understood we are not dealing with a situation where the owner is being held liable for damages due to the existence of a nuisance on his premises, nor is the owner being subjected to any penalty, fine or forfeiture. There are many cases holding an owner not liable in damages in the absence of knowledge of the nuisance. See and compare: Ahern v. Steele (1889) 115 N.Y. 203, 22 N.E. 193; Tennessee Coal, Iron & R. Co. v. Hartline (Ala.1943) 11 So.2d 833; City of Phoenix v. Harlan (Ariz.1953) 255 P.2d 609.

We are here dealing with the abatement of a public nuisance. At common law the owner of premises was under the duty, and upon him rested a primary obligation to keep his premises from becoming a public nuisance. State ex rel. Bailes v. Guardian Realty Co. (1939) 237 Ala. 201, 186 So. 168, citing Joiee on Nuisances, § 453. The statute, T.C.A. § 23-301, 2, does no more than was required at common law.

The statute imposes no penalty upon the owner, nor does it act retrospectively, its whole purpose is prospective, having for its sole object and aim, the prevention, by injunction, of a continuation of the illegal use of the property. The owner’s property is not padlocked, nor taken from him on account of the past illegal use of it by his tenants, but he is enjoined from allowing a continuation of that use. The owner’s ignorance of the past illegal use of his property by his tenants does not relieve him of responsibility for its future use. Bailes, supra; Martin v. Blattner (Iowa 1885) 25 N.W. 131.

The premises, under the proof, is a nuisance as defined by statute, and the owner has no standing to complain that he be enjoined from permitting the continuance thereof. The owner is not denied the lawful use of his property, and that is all to which he is entitled. The right of the state to protect the health, welfare and morals of the people justifies the order on the defendant owner that the nuisance not be continued.

IV.

We must now determine, under the present state of the law in Tennessee, whether this lawsuit is to be tried in accordance with the rules of chancery. The jurisdiction to abate a public nuisance is by T.C.A. § 23-302, “conferred upon the chancery, circuit, and criminal courts . . . ” This lawsuit was filed in the Criminal Court of Knox County.

Section 23-308 of the statute required the procedure in any one of the three courts to be as in chancery and gave the criminal and circuit courts the full jurisdiction and powers of courts of equity. Section 23-308, however, was repealed by Chapter 565, Public Acts 1972.

In the recent case of Ashe v. State ex rel. Shriver (Tenn.1975) 518 S.W.2d 360, the Court held a proceeding to abate a public nuisance is an action of an equitable nature. That ruling is in keeping with previous expressions of the Supreme Court of Tennessee that chancery has the inherent power to abate nuisances. See and compare: Weakley v. Page, supra, and the authorities therein cited.

We note T.C.A. § 16-511, gives a circuit court jurisdiction of lawsuits “of an equitable nature,” provided no objection is raised thereto. This statute is codified under “Chapter 5- — Circuit and Criminal Courts.” We conclude the words “circuit court” as used in the statute refer to courts of law as distinguished from courts of equity, and a criminal court could be included within its provisions.

The foregoing code section is not a denial of jurisdiction to a court of law of matters of an equitable nature, but rather a recognition of such jurisdiction if not objected to. Hewgley v. Trice (1960) 207 Tenn. 466, 340 S.W.2d 918. And, where a lawsuit may be filed in a court of law or in a court of equity, an objection to the jurisdiction of the court of law does not result in a transfer of the lawsuit; the court first obtaining jurisdiction shall retain the same. Hamilton National Bank v. Champion (1957) 202 Tenn. 205, 303 S.W.2d 731. We therefore hold the present lawsuit, being one of an equitable nature, Ashe, supra, and subject to being filed in either the circuit, criminal or chancery court, T.C.A. § 23-302, was properly filed in the criminal court and that court will proceed upon the principles of a court of equity, T.C.A. § 16-511.

V.

Our Supreme Court in Ashe v. State, ex rel. Shriver, supra, held that since the repeal of T.C.A. § 21-1011, there is no longer a right to trial by jury in lawsuits of an equitable nature. In the present lawsuit the defendant demanded a jury in his answer, and the trial judge impaneled a jury and submitted certain issues of fact for a determination by that body.

We interpret the ruling in Ashe to be that since the repeal of T.C.A. § 21-1011, a party cannot in a lawsuit of an equitable nature demand a jury as a matter of right. The Ashe opinion did not abolish jury trials in suits of an equitable nature as existed prior to, or independently of, the repealed statute.

The constitutional guaranty of trial by jury refers to the right at common law actions, not to suits of an equitable nature. Neely v. State (1874) 63 Tenn. 174.

In 1846 the legislature passed an Act to amend the practice in chancery courts so as to entitle either party to a right to trial by jury. James v. Brooks (1871) 53 Tenn. 150. The 1846 statute (later codified as the now repealed T.C.A. § 21-1102) was the only source of right to trial by jury in chancery. Green County Union Bank v. Miller (1934) 18 Tenn.App. 239, 75 S.W.2d 49. Prior to the 1846 enactment the granting of a jury in chancery was largely within the discretion of the chancellor. Allen v. Saulpaw (1880) 74 Tenn. 477.

We hold the present law of Tennessee governing trial by jury in suits of an equitable nature is the same as existed in this state prior to 1846.

In England, before the American Revolution, it was the practice in certain cases of legal rights or difficult fact questions, for the chancellors to give leave to the parties to bring an action at law on the issues or to direct the issue to be tried by a jury in a court of law. If the chancellor directed an issue be tried by a jury, he generally would formulate the issue and send it to the law court for trial. After the jury had heard the evidence and returned its verdict, such verdict upon the issue was brought back to the chancellor and he, thereupon, accepted or rejected such verdict and decided the case. Gibson’s Suits in Chancery, 5th Ed., Vol. I, § 570, pp. 630-631, citing: 2 Dan. Ch.Pr. 1071, et seq.

This procedure was generally followed in North Carolina, and adopted in Tennessee by Acts of 1801, Ch. 6, §§ 36, 40, based on North Carolina Acts of 1782, Ch. 11, Gibson’s, supra. We see no reason, except for unnecessary delay in the completion of the lawsuit, why the above procedure cannot now be followed in Tennessee. The chancellors of Tennessee, however, at an early date began the practice of impaneling the jury in the chancery court. See: Orgain v. Ramsey (1842) 22 Tenn. 580; London v. London (1839) 20 Tenn. 1.

Prior to 1846 the chancellors of Tennessee could submit such issues to the jury as they deemed appropriate. The chancellors were not bound by the finding of the jury. The Court in Orgain v. Ramsey, supra, stated the rule:

“. . . for although it is true a chancellor is not bound by the finding of a jury upon an issue of fact out of chancery submitted to them, and may disregard the finding and decide the cause ‘in the teeth of the verdict,’ yet it does not follow that it is to have no weight with him and much less does it follow that this court is to be uninfluenced thereby.”

See also, Timmons v. Garrison (1843) 23 Tenn. 147.

In London v. London, supra, a widow filed a bill to have dower assigned to her in a tract of land which she alleged her deceased husband conveyed to his son in an effort to defeat her of dower, and for an accounting. The chancellor impaneled a jury and submitted to it the issues of whether the conveyance was fraudulent, and if so to assess damages. The jury found the deed fraudulent as against the widow, and assessed her damages for the detention of her dower at $712.4lV2. The chancellor entered a decree accordingly. The Supreme Court affirmed insofar as the fraudulent conveyance was concerned. On the issue of damages, however, the Court reversed because the account was not properly taken according to the forms of equity, and the amount awarded was too much. After a remand to the clerk and master to figure the account as outlined by the Court, a decree was entered in the Supreme Court for $275.25 as damages due.

We therefore conclude the present state of the law in Tennessee is that a chancellor may submit such issues of fact to the jury as he deems appropriate; he need not submit all issues of fact to the jury; he is not bound by the finding of the jury, but he must give great weight to its finding on the issues submitted; issues submitted which are contrary to the forms of equity, London case, will not be allowed; on review the appellate court looks to the entire evidence and weighs all the testimony in the light of the jury verdict, and will reverse if it determines the chancellor erred in accepting or rejecting the verdict, Orgain case and Tim-mons case; on review the holding of the chancellor as relates to all issues, those submitted to the jury and those not submitted, will be treated by the court de novo; the material evidence rules is not applicable on appeal. We have noted Pan-O-Ram Club, Inc. v. State (Tenn.1965) 217 Tenn. 137, 395 S.W.2d 803, and we find no conflict between that decision and the rules herein announced.

In the case at bar the following questions were submitted to the jury, and the following answers given:

“1. Has the State shown by a preponderance of the evidence the maintenance of a house of ill fame, a bawdy house or brothel, kept for the purposes of prostitution on the described property owned by the defendant, Hubert Wells, as alleged?
Answer: YES.
“2. Has the State shown by a preponderance of the evidence that persons frequenting the described property owned by the defendant, Hubert Wells, have been solicited to engage in prostitution and crimes against nature as alleged?
Answer: YES.
“3. Has the State shown by a preponderance of the evidence that the described premises owned by the defendant, Hubert Wells, are frequented by persons who carry weapons as alleged?
Answer: YES.
“4. Has the State shown by a preponderance of the evidence the alleged arrests and convictions of the various alleged individuals for the alleged offenses of prostitution, assignation, keeping a house of ill fame, brothel or bawdy house on the premises of the defendant, Hubert Wells, known as the 25-70 Truck Club? Answer: YES.”

Here the criminal court judge was sitting as a chancellor in a lawsuit of an equitable nature. The foregoing issues, under the facts, were proper to submit to the jury, at the discretion of the trial judge. The preponderance of the evidence supports the findings of the jury, and we affirm the trial judge in his holding the premises designated as Tract I in the record constituted a nuisance.

With those findings of fact the trial judge correctly made permanent the injunction against the defendant owner as heretofore stated. The procedure meets the requirements of a jury at chancery under the rules now governing that procedure in Tennessee.

VI.

We hold the statute, T.C.A. § 23-301, does not violate Article 11, Section 8 of the Constitution of Tennessee, because the Act is equally applicable to all landowners in the same position; it cannot be deemed an enactment for the benefit of any one or more landowners. See: State, ex rel v. Persica (1914) 130 Tenn. 48, 168 S.W. 1056.

The claim that the injunction is overbroad because it enjoins the defendant from committing the nuisance anywhere in Knox County is without merit. If the injunction had not so stated, it would have that effect under T.C.A. § 23-306.

It would have been proper for the trial judge to have dismissed the lawsuit as to Tract II described in the petition. The decree, however, refers only to Tract I, and we hold it not reversible error to fail to dismiss as to Tract II, nor is an amendment of the decree necessary.

It results the judgment of the trial court is affirmed. The cost of this appeal is adjudged against the appellant.

CARNEY, P. J., and McAMIS, P. J., Retired, concur.

      . “23-308. Rules of equity. — Proceedings under §§ 23-301 — 23-312, whether in the chancery, circuit, or criminal courts, shall be conducted in accordance with the procedure of court of chancery where not otherwise expressly provided; and all of said courts having cognizance of such proceedings are hereby given the full jurisdiction and powers of courts of equity with respect to such proceedings. [Acts 1913 (2nd E.S.), ch. 2, § 5; Shan., § 5164a7; Code 1932, § 9330.]”

      . “16-511. Equity powers. — Any suit of an equitable nature, brought in the circuit court, where objection has not been taken to the jurisdiction, may be transferred to the chancery court of the county, or heard and determined by the circuit court upon the principles of a court of equity, with power to order and take all proper accounts, and otherwise to perform the functions of a chancery court. [Code 1858, § 4236 (deriv. Acts 1851-1852, ch. 152, § 9); Shan., § 6074; Mod.Code 1932, § 10329; Acts 1972 (Adj.S.), ch. 565, § 2.]”