author: COOPER, Justice.

text:
    STATE of Tennessee v. Sam Calvin SCRUGGS.
    Supreme Court of Tennessee.
    Oct. 29, 1979.
    Rehearing Denied Dec. 3, 1979.
    Wayne B. Glasgow, Jr., Franklin, for petitioner.
    Charles L. Lewis, Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen., Nashville, for respondent.
   OPINION

COOPER, Justice.

Petitioner, Sam Calvin Scruggs, was convicted of the armed robbery of Jimmy Lawrence and was sentenced to a term of twenty-five years in the penitentiary. The Court of Criminal Appeals affirmed the conviction. In doing so, they held that any adverse effect resulting from a statement by a juror on voir dire that he had been petitioner’s probation officer was overcome by cautionary instructions and, if not, the statement was harmless error in view of the overwhelming evidence of petitioner’s guilt. We granted certiorari to review this holding.

The record shows that prior to the selection of the jury, the trial judge made a preliminary statement informing the prospective jurors in general terms of relevant facts that led to petitioner’s indictment for robbery. Unfortunately, he informed them of a crime different from that with which the petitioner was charged. On having the error called to his attention, the trial judge twice told the jury to “disregard” the incorrect recitation:

In any event — And I do mean disregard that, because I don’t know where I got that earlier. But that has nothing to do with this prosecutor or this defendant, so — I do — I hear a lot of cases, and I get them confused from time to time.

In the absence of the prospective jurors, defense counsel moved to strike the jury panel on the ground that the remarks of the trial judge implicitly linked the petitioner to a crime other than the one for which he was being tried. The motion was denied.

The voir dire examination was then conducted by counsel for petitioner and for the State. Several jurors had been examined and seated, when Mr. John C. Owen was called from the panel to replace a juror who had been excused. The trial judge undertook to qualify Mr. Owen as a juror and asked him if he knew either petitioner or the victim. The following colloquy took place:

MR. OWEN: I know Sam Calvin Scruggs.
THE COURT: And in what connection do you know him, and how well do you know him?
MR. OWEN: Well, I’m a probation officer, and I had him under my supervision at one time.
THE COURT: Well, you — If you know him in that connection, you’re excused.

Defense counsel, outside the presence of the jury, moved for a dismissal of the panel or, in the alternative, for a mistrial. The trial judge denied the motion. On his return to the courtroom, the trial judge gave a lengthy cautionary charge to the jury instructing them that they must not consider a defendant’s past, and asking them to let him know if they believed they could not disregard testimony of such a nature, if instructed to do so.

The only specific reference to Owens’ statement in the cautionary instructions, is the following:

Now, a defendant doesn’t come into Court with any presumptions one way or another about his character, or about his past history of what he’s done — whether it’s involved — whether he went to Sunday School or not on the plus side, or whether he may have been involved in some unlawful activity. Those matters simply cannot be considered by the jury one way or the other as in any way affecting the presumption of innocence, or as in any way lessening the burden of the State to prove its case. They’re — Whatever inference that might be drawn — and I would say that you really can’t draw any inference, particularly from the slight interchange that was had between the Court and the last prospective juror who has been excused.

The Court of Criminal Appeals held that the limiting instructions following each of the above incidents cured any error; moreover, the Court found that any error would have been harmless in view of the overwhelming evidence of guilt in this case, citing T.C.A. § 27-117, and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (error must be harmless “beyond a reasonable doubt.”)

Numerous cases have been cited to us where the court has considered the effect of cautionary instructions to jurors relative to the consideration of incompetent evidence. These cases are of little value since they merely represent factual applications of the long-established rule that limiting instructions can cure an error in the trial of a case, even one involving reference by a witness to a prior crime in which the defendant was involved, unless real doubt is raised by circumstances as to whether the cautionary instruction was effective. See Blankenship v. State, 219 Tenn. 355, 410 S.W.2d 159 (1966), wherein it is pointed out on pages 160-161, that:

It is well settled law of this State that when competent proof, such as this certainly is, and is admitted to be by the State, is introduced before a jury, and the trial judge thereafter definitely withdrew it, as was done here, it is no cause for reversal, unless real doubt is raised as to whether the judicial warning against its consideration was effective.

See also Colquit v. State, 107 Tenn. 381, 64 S.W. 713 (1901); Irvine v. State, 104 Tenn. 132, 56 S.W. 845 (1900).

The Court in Blankenship also cited with approval 24B C.J.S. Criminal Law § 1915(2) (1962), in which it was said:

Doubts as to whether the erroneous admission of evidence was prejudicial should be resolved in favor of accused. Error in the reception of evidence is less likely to be regarded as harmless in a close case.
The fact that evidence other than that which was improperly admitted is sufficient to justify a conviction does not make the admission of the incompetent evidence harmless, since it cannot be said what weight the jury gave to the evidence in reaching their verdict. The reviewing court will reverse a conviction where it cannot say from the record that the evidence erroneously admitted was not prejudicial to accused, or that it did not affect or contribute to, the verdict rendered.

In this case the evidence of petitioner’s guilt of the armed robbery of Jimmy Lawrence was overwhelming. The description of the robber given the police by the victim was detailed and fit the petitioner “like a glove.” Further, the victim identified the petitioner in a lineup and at the trial. Also, there is evidence that placed the “black and white” Cadillac used in the robbery in petitioner’s possession at the time the robbery occurred. However, this strong evidence of guilt does not ipso facto mean that petitioner was not prejudiced by the statement of the prospective juror, Mr. Owens. The range of punishment on conviction of armed robbery is ten years to life. Petitioner’s term was fixed by the jury at twenty-five years, two and one-half times the minimum sentence. One possible basis for the severity of the punishment was the knowledge of the jurors that petitioner had been shown leniency on conviction of an earlier criminal offense. It would be a logical reaction on the part of the jurors and a reaction which we can not say beyond a reasonable doubt was overcome by instructions from the trial judge that they not consider for any purpose the information they had concerning petitioner’s past criminal activities.

The judgment of conviction is reversed and the case is remanded to the Criminal Court of Williamson County for a new trial.

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


source: Caselaw Access Project

author: FONES, Justice.

license: Public Domain

text:
    CITY OF WATAUGA, Tennessee, Appellant, v. CITY OF JOHNSON CITY, Tennessee, Appellee.
    Supreme Court of Tennessee.
    Nov. 19, 1979.

      Lodge Evans, Elizabethton, for appellant.
    James H. Epps, III, Johnson City, for appellee.
    William Leech, Atty. Gen., William W. Hunt, III, Asst. Atty. Gen., Nashville, for the State of Tennessee.
   OPINION

FONES, Justice.

This is a direct appeal from a trial court decree adverse to the City of Watauga’s suit contesting the validity of an annexation ordinance adopted by the City of Johnson City. Both cities adopted ordinances annexing the same territory.

Watauga’s complaint asserted that Johnson City is the larger of the two municipalities and relied upon T.C.A. § 6-317, as amended by chapter 753, section 5, 1974 Tennessee Public Acts, for standing to challenge the annexation ordinance of its larger neighbor. Watauga alleged that the provisions of T.C.A. § 6-317, giving precedence to the larger municipality when two municipalities seek to annex the same territory, violated Tennessee Constitution, article 1, section 22 and article 11, section 8.

In addition to the constitutional questions, Watauga’s complaint asserted the following reasons why the Johnson City annexation ordinance 2163 should be vacated and Watauga’s ordinance 84 sustained:

(1) The Watauga ordinance passed on third reading and became final prior to Johnson City’s ordinance becoming final.
(2) Johnson City gave no official notice to Watauga after October 6, 1977 (the date Johnson City initiated annexation proceedings by passing its ordinance on first reading) that it was proceeding to annex the same territory described in Watauga ordinance 84.
(3) Johnson City did not file suit against Watauga within thirty days after October 11, 1972, the date Watauga adopted ordinance 84 on third and final reading.
(4) That the territory described in Wa-tauga’s ordinance 84 was not adjacent to the boundaries of Johnson City and Johnson City included additional territory in its ordinance 2163, “[i]n order to reach out way beyond its existing boundaries and seize and grab the territory described in ordinance 84 . . . that since the “same territory” sought to be annexed by both is not contiguous to Johnson City its ordinance 2163 was invalid.

The remaining allegations of Watauga’s complaint detail various alleged procedural defects said to vary from the requirements of T.C.A. § 6-309 and the charter of Johnson City.

Johnson City filed a motion to dismiss on the grounds that the complaint failed to state a claim upon which relief could be granted and that venue of this action was in Washington County only, the corporate situs of Johnson City.

The Attorney General of Tennessee, who was properly made a party, moved for a partial summary judgment on the two constitutional questions.

Watauga moved for summary judgment alleging, in substance, the various grounds of attack asserted in its complaint and insisting that there was no genuine issue of material fact with respect to the numerous alleged infirmities, and that it was entitled to a decree vacating Johnson City’s ordinance and sustaining its ordinance, as a matter of law. The learned chancellor held a hearing on the respective motions of the parties and subsequently entered a decree, which he expressly designated a final judgment, wherein he held that:

“The plaintiff has failed to show that it is entitled to the relief sought; that the City of Johnson City has proceeded legally, lawfully and properly; that the statute in question is valid and constitutional, properly passed by the Legislature and that it does not create special status or monopoly; that the plaintiff has failed to establish a reason to stop the proceeding of the defendant City of Johnson City and that Johnson City has complied with the law in all regards, its ordinance is proper and it is entitled to proceed with annexation; that the position of the defendant City of Johnson City that venue lies in the county of its situs, Washington County, is sustained;”

Thus, the trial court sustained the motions of Johnson City and the Attorney General, denied Watauga’s motion for summary judgment and dismissed its suit.

I.

The territory sought to be annexed by Watauga and Johnson City lies partially in Carter County and partially in Washington County. Ordinarily suits against a municipality must be filed in the county in which that municipality is located. Baker v. Hughes, 532 S.W.2d 223 (Tenn.1975); Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404 (1904). This general rule is subject tp modification by statute, and T.C.A. § 6-317 provides that the smaller municipality may sue the larger municipality in the county in which the territory to be annexed is located. The statute is silent as to venue when the territory to be annexed is located in two counties. This Court dealt with an analogous situation in Baker v. Hughes, supra, where two governmental entities were defendants. There we concluded that judicial efficiency required a venue rule that would permit plaintiff to sue at the corporate situs of either of the two governmental entities. Under the circumstances of this case, we hold that venue lies in either Carter or Washington County.

II.

The portion of T.C.A. § 6-317 alleged by Watauga to be unconstitutional read as follows, at the time this cause of action arose:

“If two (2) municipalities shall initiate annexation proceedings with respect to the same territory, the proceedings of the municipality having the larger population shall have precedence and the smaller municipality’s proceedings shall be held in abeyance pending the outcome of the proceedings of such larger municipality. . [Annexation proceedings shall be considered as initiated upon passage on first (1st) reading of an ordinance of annexation. If the ordinance of annexation of the larger municipality does not receive final approval within one hundred eighty (180) days after having passed its first reading, the proceeding shall be void and a smaller municipality shall have priority with respect to annexation of the territory; provided its annexation ordinance shall likewise be adopted upon final passage within one hundred and eighty (180) days after having passed its first (1st) reading. When a larger municipality initiates annexation proceedings for a territory which could be subject to annexation by a smaller municipality, the smaller municipality shall have standing to challenge the proceedings in the chancery court of the county where the territory proposed to be annexed is located.”

Watauga makes the novel contention that the Legislature has violated the Tennessee Constitutional provision prohibiting the granting of monopolies, article 1, section 22, in that it has conferred favoritism upon large municipalities over small municipalities.

A monopoly has been defined to be an exclusive right granted to a few, which was previously a common right. If there is no common right in existence prior to the granting of the privilege for franchise, the grant is not a monopoly. Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. 420, 9 L.Ed. 773 (1837); Leeper v. State, 103 Tenn. 500, 53 S.W. 962 (1899).

The annexation of territory is not a common right of municipalities, large or small. It is the exclusive prerogative of the Legislature to create municipalities and to alter, shrink or enlarge their boundaries at will. City of Oak Ridge v. Roane Co., 563 S.W.2d 895 (Tenn.1978); Bell v. Town of Pulaski, 182 Tenn. 136, 184 S.W.2d 384 (1945); Town of Oneida v. Pearson Hardwood Flooring Co., 169 Tenn. 449, 88 S.W.2d 998 (1935). In the exercise of that unlimited power, the Legislature has chosen to delegate to municipalities the power to annex by ordinance under the terms and conditions prescribed in title 6, chapter 3, Tennessee Code Annotated. In giving precedence to the larger of two municipalities competing to annex the same territory, in the time frame prescribed in T.C.A. § 6-317, the Legislature did not grant something which was previously a common right.

The second prong of the constitutional attack relies upon Tennessee Constitution, article 11, section 8 and asserts that T.C.A. § 6-317 suspends the general annexation law, is discriminatory against small cities and is therefore unreasonable class legislation. Watauga asserts that this Court’s ruling in Pirtle v. City of Jackson, 560 S.W.2d 400 (Tenn.1977), is squarely in point on the issue of unreasonable class legislation. In Pirtle we held that there was no rational basis to support exclusion of a few counties by population brackets from the burden of proving an annexation ordinance was reasonable for the overall well-being of the communities involved, as required of other municipalities by the general law of this State, T.C.A. § 6-310. No suspension of the general annexation law of the state is involved in prescribing who shall prevail as between two municipalities competing for the same territory in the same time frame. It is obvious that the Legislature has made the judgment that it is in the public interest that the larger of two competing municipalities will prevail in this limited circumstance. That judgment may rationally rest upon the assumption that the larger municipality is more likely to provide efficient services to the annexed community and at the same time impose a lighter burden on the citizens of the annexing city.

Where classifications, are reasonable they are constitutional. Legislative classifications are reviewable by the Courts only where there is a showing that the classification is palpably arbitrary. State ex rel. Hudson v. City of Chattanooga, 512 S.W.2d 555 (Tenn.1974).

The constitutional challenges have no merit and are overruled.

III.

Preliminary to a consideration of the trial court’s ruling that Watauga’s complaint failed to state a cause of action upon which relief could be granted, it is appropriate that we dispose of questions involving the scope of the challenge available to a smaller municipality seeking to vacate an annexation ordinance of a larger municipality.

Prior to the enactment of Tennessee Public Acts, 1974, chapter 753, section 5, a municipality had no standing to challenge the annexation ordinance of another municipality. See City of Gallatin v. City of Hendersonville, 510 S.W.2d 507 (Tenn.1974).

In City of Oak Ridge v. Roane Co., supra, the trial court had held that the statutory requirement that a challenge to an annexation ordinance be brought within thirty days applied only to the issue of reasonableness for the overall well-being of the citizens of the communities involved, a requirement of T.C.A. § 6-310, and that those with standing to do so could challenge such an ordinance on the grounds of lack of notice, failure to submit a plan of services, and, implicitly, any other failure to comply with the procedures prescribed in T.C.A. § 6-309. In the course of overruling the results reached by the trial court, we held that the Legislature had limited the power of the courts to vacate an annexation ordinance to those cases wherein the issue of reasonableness as prescribed in T.C.A. § 6-310 was adjudged adverse to the annexing city and that the courts were without statutory or common-law authority to vacate an annexation ordinance for failure to follow the procedures outlined in T.C.A. § 6-309, such as procedural defects in notices, public hearings, and plan of services, absent constitutional infirmities, even if the action were brought within the thirty day period of limitation.

Johnson City’s brief makes the contention that the language of T.C.A. § 6-317 granting to smaller municipalities the standing, “to challenge the proceedings in the chancery court” limits the issues that can be raised by a smaller municipality to purely procedural defects. The argument is based entirely upon the use of the word “proceedings.” We disagree. The nature of annexation by ordinance is such that it is accurate and logical to refer to the entire process as “annexation proceedings.” We think the Legislature intended to grant to smaller municipalities the same standing to challenge annexation that it theretofore granted to owners of property in the territory to be annexed, no more and no less. We have made the point in the preceding paragraphs that the courts have no power to vacate an annexation ordinance for purely procedural defects. Johnson City’s asserted limitation on the scope of the challenge available to smaller cities, would render their standing meaningless.

It is clear from an examination of Watauga’s complaint, its motion for summary judgment, and the affidavits and exhibits in support thereof, that there was no merit in any of the alleged procedural defects based upon T.C.A. § 6-309 or the charter of Johnson City or the four numbered allegations of its complaint listed in the third grammatical paragraph of this opinion. It follows that unless Watauga has raised the statutory issue of reasonableness prescribed by the Legislature in T.C.A. § 6-310, “in consideration of the health, safety and welfare of the citizens and property owners of the territory sought to be annexed and the citizens and property owners of the municipality,” Johnson City’s motion to dismiss was well taken and properly granted.

Paragraph VIII of Watauga’s complaint alleges that Johnson City’s ordinance 2163, “to the extent that it undertakes to annex the territory described in ordinance number 84 of the City of Watauga, is unreasonable, oppressive, inequitable, and unjust . .” We find nothing else in this record that suggests that Watauga intended to pursue the statutory issue of reasonableness which embraces, in this litigation, only the well-being of the citizens of Johnson City and the citizens of the territory proposed to be annexed. The thrust of paragraph VIII of Watauga’s complaint appears to be that the action of Johnson City is unreasonable from the point of view of the City of Watauga, which is totally irrelevant to the issue prescribed in T.C.A. § 6-310.

Watauga’s only response to Johnson City’s T.R.C.P. 12.02(6) motion was the filing of its own motion for summary judgment, supported by affidavits and exhibits, wherein there was no reference, directly or indirectly to the T.C.A. § 6-310 statutory issue.

The purpose of the last sentence of T.R. C.P. 12.02 is to allow parties to present matters outside the pleadings, so that the trial court can determine whether there exists a genuine issue which requires trial. See Committee Comment to T.R.C.P. 12.02. In this case, it was incumbent upon Watau-ga to respond to Johnson City’s 12.02(6) motion by an appropriate showing that it was prepared to present evidence making an issue of whether the Johnson City annexation ordinance was reasonable for the overall well-being of the communities involved. Having failed to do this, we must conclude that Watauga has not properly relied upon that statutory issue. The fact that the burden of proof rests upon the larger municipality does not per se introduce that issue in every annexation lawsuit.

The judgment of the trial court dismissing the suit is affirmed. The costs are adjudged against the City of Watauga.

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

      . Johnson City’s ordinance included some additional territory to that included in the Watauga ordinance, but that fact has no bearing upon the issues before this Court.

      . This section was amended by Chapter 684, 1978 Tennessee Public Acts effective March 27, 1978.


author: BROCK, Chief Justice.

text:
    Mae Roselyn Poole QUALLS, Plaintiff-Appellee, v. Leon QUALLS, Defendant-Appellant.
    Supreme Court of Tennessee.
    Nov. 19, 1979.

      Ken Burger, Murfreesboro, for plaintiff-appellee.
    Scott Daniel, D. C. Daniel, Jr., Murfrees-boro, for defendant-appellant.
   OPINION

BROCK, Chief Justice.

The defendant husband in a divorce case brings this proceeding pursuant to Rule 60.-02, Tennessee Rules of Civil Procedure, to have set aside a provision in the default judgment which purports to require the husband to pay alimony in the sum of $150.00 per month until such time as the wife may remarry.

The ground asserted for such relief is that the complaint for divorce failed to allege any factual basis for an award of alimony and its prayer failed to request that alimony be awarded. The trial court denied relief and the husband appealed to the Court of Appeals which held that the award of alimony was different in kind and exceeded in amount the relief demanded in the prayer of the complaint and, thus, was in violation of Rule 54.03, Tennessee Rules of Civil Procedure, which, in pertinent part, provides:

“Demand for Judgment—
“A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.”

Although the Court of Appeals held that the alimony provision of the default judgment was invalid, it, nevertheless, remanded the cause to the trial court to permit the wife to make appropriate amendments to the complaint praying for alimony, for the defendant to file an answer thereto and for a hearing on the merits of the alimony claim. Both parties have sought certiorari review in this Court of the judgment of the Court of Appeals and we have granted such review.

The complaint for divorce filed by Mrs. Qualls did not allege that she was entitled to alimony but it did allege that the parties owned certain specified real and personal property and that “the defendant is able bodied, has a regular income, and is capable of paying a reasonable attorney’s fee for the plaintiff’s representation in this cause.” The prayer for relief sought an absolute divorce, that a “fair and equitable division be made of the parties’ real and personal property,” that the defendant husband be required to pay the plaintiff’s attorney, Mr. Ken Burger, a reasonable attorney’s fee for representation of the plaintiff in this cause and, finally, “for any such other and further general relief to which plaintiff may be entitled.” The complaint and its prayer made no demand that the defendant be required to make periodic payments of alimony to the plaintiff.

The final decree entered in the divorce action contained the following provision:

“4. That the plaintiff, Mae Roselyn Poole Qualls, after having raised three children to adulthood, is in ill health and possesses a much lesser earning capacity than the defendant. The court, therefore, finds that the plaintiff should be awarded the sum of $150.00 per month as alimony in futuro, to terminate upon the remarriage of the plaintiff.”

The complaint and summons were personally served upon the defendant husband. Prior to the hearing a document proposing a settlement of the financial matters involved in the divorce action was presented to the husband. This document, in addition to the provisions for attorney’s fees and division of real and personal property, also contained a stipulation that the husband should pay alimony to the wife in the sum of $150.00 per month. The defendant husband struck throügh this alimony provision and then signed the agreement as thus altered and told the plaintiff wife that he would not pay her any alimony.

The defendant husband elected not to answer or otherwise appear in the divorce action and was not present when the ex parte hearing was conducted. However, a copy of the decree, including the requirement for the defendant to pay alimony of $150.00 per month, was furnished to the defendant husband within thirty days following the entry of said decree.

It appears that Mr. Qualls complied with all provisions of the decree except the requirement that he pay alimony and it also appears that the plaintiff made no attempt to enforce the alimony provision until approximately ten months following the entry of the decree when she had her attorney send a letter to the defendant demanding payment of the accumulated $1,500.00 alimony. In response to the letter, the defendant husband paid $300.00 but then changed his mind and retained an attorney who filed the motion under Rule 60.02, T.R. C.P., seeking relief from the provision of the divorce decree requiring payment of alimony.

i

We concur in the decision of the Court of Appeals that the award of periodic alimony is both different in kind from and exceeded in amount the relief prayed for in the original complaint and, therefore, was in violation of Rule 54.03, T.R.C.P. The husband is thus entitled to relief under Rule 60.02, T.R.C.P. See, Terrell v. Terrell, 192 Tenn. 317, 241 S.W.2d 411 (1951). In this State a divorce may be granted without alimony, and alimony may be granted without decreeing a divorce, there being no necessary or absolute connection between divorce and alimony under the statute, T.C.A., § 36-820. Williams v. Williams, 146 Tenn. 38, 236 S.W. 938 (1921); McBee v. McBee, 48 Tenn. 558 (1870). Therefore, a prayer for general relief is not sufficient to support an award of alimony in a case in which the judgment is taken upon default of the defendant.

The principle governing our disposition of this issue is well stated in 27B C.J.S. Divorce § 244 (1959) as follows:

“However, permanent alimony may not be granted in the absence of a special request therefor where defendant fails to appear in . the action and judgment against him is entered by default or pro confesso, and statutes provide that, where defendant does not answer, the relief granted to plaintiff cannot exceed that which he has demanded and that necessarily incident thereto.”

This rule is followed in those jurisdictions, such as Tennessee, wherein alimony is not a necessary incident of divorce and a default judgment may not award relief different from or greater than that demanded in the complaint. Cushman v. Cushman, 178 Cal.App.2d 492, 3 Cal.Rptr. 24 (1960); McHan v. McHan, 59 Idaho 496, 84 P.2d 984 (1938); Rourke v. Rourke, 8 Ind. 427 (1857); Ermey v. Ermey, 18 Wash.2d 544, 139 P.2d 1016 (1943); Rinker v. Rinker, 3 N.J.Super. 251, 64 A.2d 910 (1949); Hazelwood v. Hazelwood, Fla.App., 345 So.2d 819 (1977); McCarrel v. McCarrel, 48 Ill.App.3d 666, 6 Ill.Dec. 669, 363 N.E.2d 198 (1977); Burson v. Burson, 149 Colo. 566, 369 P.2d 979 (1962); 12 A.L.R.2d at 348. The opposite result is reached, of course, in those jurisdictions wherein alimony is regarded as a necessary incident to divorce. Ecker v. Ecker, 130 Minn. 472, 153 N.W. 864 (1915). See cases cited 12 A.L.R.2d at 345.

In California where the substance of Rule 54.03, T.R.C.P., has been incorporated in a statute for many years the Court in Cush-man v. Cushman, supra, explained the rationale of the rule that a default judgment in a divorce action wherein the complaint fails to demand alimony is erroneous insofar as it purports to award alimony as follows:

“The obvious reasoning behind the rule that where a divorce decree is entered by default, alimony may not be granted if not prayed for in the complaint, is that a party has a right to assume that the judgment following his default will not go beyond the issues presented by the complaint and the relief asked therein, and if a judgment other than that demanded is taken against him, he is deprived of his day in court (citations omitted); . . . ” 3 Cal.Rptr. at 26.

A similar explanation has been made of Rule 54(c), F.R.C.P., which, of course, is the forerunner of our Rule 54.03, as follows:

“The first sentence of Rule 54(c) states that a judgment by default is limited to the relief demanded in the complaint. The theory of this provision is that once the defending party receives the original pleading he should be able to decide on the basis of the relief requested whether he wants to expend the time, effort, and money necessary to defend the action. It would be fundamentally unfair to have the complaint lead defendant to believe that only a certain type and dimension of relief was being sought and then, should he attempt to limit the scope and size of the potential judgment against him by not appearing or otherwise defaulting, allow the court to give a different type of relief or a larger damage award. In a similar vein, unless all the parties in interest have appeared and voluntarily litigated an issue not within the pleadings, the court should consider only those issues presented in the pleadings. In sum, then, a default judgment may not extend to matters outside the issues raised by the pleadings or beyond the scope of the relief demanded.” Wright and Miller, Federal Practice and Procedure § 2663, at 99-100 (1973). See also, ALI Restatement of the Law, Second, Judgments, § 4, § 113.

Therefore, upon both principle and authority, we hold that the default judgment of the trial court was erroneous insofar as it awarded periodic payments of alimony, there being no allegation or prayer in the complaint with respect to the granting of such alimony.

II

It is our further conclusion that the defendant husband is not estopped from seeking relief under Rule 60.02, T.R.C.P., and that he has not waived his right to such relief by reason of his payment to his former wife of $300.00 alimony in response to a letter from her lawyer demanding payment of $1,500.00 accrued alimony within ten days or be proceeded against by a petition for contempt, nor by his waiting until approximately eleven months from the entry of the divorce decree before filing the instant motion seeking relief under Rule 60.02, T.R.C.P.

To support her claim of waiver or estop-pel, Mrs. Qualls relies upon the decision in Chappell v. Chappell, 37 Tenn.App. 242, 261 S.W.2d 824 (1950). However, the facts in the Chappell case are so different from those in the case at bar that we do not find that decision controlling. In Chappell the husband paid alimony payments regularly over a period of years before raising any question about the validity of the decree, whereas, in the instant case, the husband has made only two monthly payments and that only after being threatened with contempt proceedings. In the instant case we find no basis for either waiver or estoppel.

Ill

Finally, we consider the action of the Court of Appeals in remanding the case to the trial court with directions that the wife be permitted to amend her complaint to pray for alimony, that the defendant be permitted to respond thereto and that a hearing be conducted upon the merits of that issue.

Rule 60.02, T.R.C.P., provides:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: . . .” (Emphasis added.)

The underlined language vests in the court a broad discretion with respect to the imposition of conditions which must be met by one who seeks relief from a final judgment under Rule 60.02. It is well recognized that a court in granting a motion to open or vacate a judgment may, within reasonable limits, impose such terms as it deems just and proper to prescribe. Whereatt v. Ellis, 70 Wis. 207, 35 N.W. 314 (1887); Mosiac Templars of America v. Hall, 220 Ala. 305, 124 So. 879 (1929); Lilly-Brackett Co. v. Sonnemann, 157 Cal. 192, 106 P. 715 (1910); Winslow v. Anderson, 20 N.C. 1; 46 Am.Jur.2d Judgments § 784 (1969) and cases there cited.

We consider it only just and reasonable that as a condition to awarding relief to the defendant under Rule 60.02 the issue of alimony should be reopened in the trial court as provided in the decree of the Court of Appeals. We, therefore, affirm the action of the Court of Appeals in remanding this case to the trial court with directions that the plaintiff be permitted to amend her complaint to ask for alimony, the defendant be permitted to answer such claim for alimony and that a hearing be afforded the parties on the merits of that issue. We prefer, however, to base such action upon the express authority of Rule 60.02, T.R. C.P., to require “such terms as are just” as a condition for granting relief, rather than upon the defendant’s alleged acquiescence relied upon by the Court of Appeals in its opinion.

The judgment of the Court of Appeals is affirmed and costs incurred in this Court are assessed against the petitioner, Leon Qualls.

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

      . For a discussion of the variety of conditions which may properly be imposed in granting relief from a judgment under the rule, see An-not., 3 A.L.R. Fed. 956 (1970).


author: HENRY, Justice.

text:
    Teodoro VALLES, Plaintiff-Appellee, v. DANIEL CONSTRUCTION COMPANY, and Aetna Life & Casualty Insurance Company, Defendants-Appellants.
    Supreme Court of Tennessee.
    Nov. 26, 1979.

      R. Jan Jennings, Branstetter, Moody & Kilgore, Nashville, for defendants-appellants.
    Jack M. Rudolph, Clarksville, for plaintiff-appellee.
   OPINION

HENRY, Justice.

The sole question in this workmen’s compensation action is whether the Trial Judge, in a suit wherein the employer and the insurance carrier are named defendants, may order payment on a commuted lump sum basis, upon the agreement of the employer, but over the objection of the insurance carrier. We respond in the negative.

Section 50-1023, T.C.A., as it stood on February 21, 1979, the date of the order, provided, in pertinent part:

The amounts of compensation payable periodically hereunder may be commuted to one or more lump sum payments. These may be commuted only with the consent of the [court].

We have held that this statute contemplates an agreed stipulation or order showing the joint assent of the employer and employee, American Zinc Co. v. Lusk, 148 Tenn. 220, 255 S.W. 39 (1923); that a lump sum settlement may not be ordered over the objection of the employer, Kamarad v. Parkes, 201 Tenn. 566, 300 S.W.2d 922 (1957); and have recognized that lump sum awards are an exception to the general purpose of our workmen’s compensation laws to provide weekly payments or as nearly as may be to the manner in which the employee is accustomed to receiving his wages. Reece v. York, 199 Tenn. 592, 288 S.W.2d 448 (1956).

It is of some significance that the word “employer” is defined so as to “include his insurer.” Section 50-902(a), T.C.A. Both the employer and the insurer are parties defendant to this suit.

The record in this case shows that the Trial Judge made a lump sum award on the basis of his finding that the answers of the employer to certain interrogatories “constitute an agreement between the employer and employee that all benefits hereunder should be paid in a lump sum.” The appellant insurance carrier does not question this finding, but contends that it is not bound by the agreement and it may not be compelled to make lump sum payments without its consent.

We agree.

The general theory underlying the workmen’s compensation statutes is to provide for periodical payments, as a substitution for the regular income theretofore earned. When Section 50-1023, T.C.A. (Section 36, Chapter 123, Acts of 1919), first came before this Court in American Zinc Co., supra, the Court recognized this policy consideration and held that the statute contemplated the precedent “presentation of an agreed stipulation or order,” and held that the provisions of our Workmen’s Compensation Act are “inconsistent with a right in either party to enforce commutation by court order over the objection of the other.” 148 Tenn. at 226-27, 255 S.W. at 41.

In Ledford v. Johnson City Foundry & Machine Co., 169 Tenn. 430, 88 S.W.2d 804 (1935), the Court noted that “[a]s a further protection for an impecunious or improvident employee or dependent, no lump settlement is permitted except upon consent of the court.” 169 Tenn. at 432, 88 S.W.2d at 805.

In Kamarad v. Parkes, 201 Tenn. 566, 300 S.W.2d 922 (1957), the Court spoke in terms of “[ajgreed settlements by the parties” and reversed a lump sum award made “without the consent of the parties.”

This line of cases was again upheld in Fultz v. Union Carbide Corp., 219 Tenn. 345, 409 S.W.2d 541 (1966). Lastly, this Court in Williams v. Travelers Insurance Co., 530 S.W.2d 283 (Tenn.1975), invalidated a lump sum award made in a suit brought by an insurance carrier, where one of the parties defendant objected.

We find no case specifically holding that in a suit wherein the employer and the insurance carrier are both named as insured, an agreement between the employee and the employer is insufficient to bind the insurer.

We think, however, that such a holding necessarily inheres in and follows from the rationale of the cases we have cited. Lump sum awards are authorized as an exception to the general statutory purpose and payment scheme. They should only be permitted with a cautious regard for the welfare of the injured workman or his dependents and pursuant to a judicial determination that his, or their, best interests will be served thereby. In all events, the statutory interpretation given by this Court since the inception of the Workmen’s Compensation Act must be controlling. We do not consider a departure therefrom to be in the public interest.

We hold that a lump sum award may not be adjudged under Section 50-1023, T.C.A., as it existed prior to July 1, 1979, without the agreement of both the employer and the insurance carrier in any suit or action wherein both are named parties defendant.

Reversed and remanded.

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

      . This section was amended, Chapter 295, Public Acts of 1979, effective July 1, 1979, and now provides that “[n]o agreed stipulation or order or any agreement by the employer and employee or any other party to the proceeding shall be a prerequisite to the court’s approval or disapproval of the award being paid in one or more lump sum payments.” We cannot apply this statute retroactively. Royal Indemnity Company v. Futtrell, 585 S.W.2d 583 (Tenn.1979); Liberty Mutual Ins. Co. v. Starnes, 563 S.W.2d 178 (Tenn.1978).


author: EWELL, Judge.

text:
    Geraldine HAMMOND, Plaintiff-Appellant, v. The INDEPENDENT LIFE AND ACCIDENT INSURANCE COMPANY, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section.
    Aug. 14, 1979.
    Certiorari Denied by Supreme Court Oct. 29, 1979.

      Jack D. McNeil, Memphis, for plaintiff-appellant.
    William H. Luck, Memphis, for defendant-appellee.
   EWELL, Judge.

Geraldine W. Hammond, widow of Thomas J. Hammond, Jr., sued The Independent Life and Accident Insurance Company in the Chancery Court of Shelby County for the face amount ($25,000.00) of a life insurance policy dated March 25,1975, issued by the defendant on the life of plaintiff’s husband with plaintiff designated therein as beneficiary. The defendant denied liability charging that the policy would not have been issued but for material misrepresentations made by the insured in the application, which misrepresentations induced the issuance of the policy and increased the risk. The policy was issued without medical examination. After claim was made under the policy defendant returned all premiums paid. The Chancellor found for the defendant, dismissed the suit and declared the policy null and void from its inception. Plaintiff appealed under six assignments of error which, in summary, charge three errors as follows:

(1) The Trial Court erred in holding- for the defendant because there was no finding of fraudulent material misrepresentation with actual intent to deceive.
(2) The Trial Court erred in holding for the defendant because the defendant failed to prove by clear and convincing evidence that the insured made material misrepresentations which increased the risk of loss.
(3) The Trial Court erred in holding for the defendant because the defendant had waived the information in question and was estopped to assert the defense relied upon because the insured had given the proper information to the agent for the defendant who filled out the application for insurance.

The application for insurance was taken on March 25, 1975, by Grady Newton Bennett, agent for Independent Life and personal friend of the insured. Part II of the application was a questionaire signed by the insured after being completed by Bennett using information furnished by the insured during a personal interview. We copy pertinent portions of Part II of the application:

Page three of the application includes the following:

The undersigned declare that the statements and answers to the questions in this application including Part I and II and any supplements thereof or additions or amendments thereto, are complete and true to the best of their knowledge and belief.
The undersigned agree that: (1) these statements and answers shall form the basis for and become part of the contract of insurance applied for; .
All of the foregoing statements and answers were read by me and were fully and correctly recorded by the Field Underwriter.

The full application was attached to the policy which contained among the “General Provisions” the following paragraph:

THE CONTRACT. This policy and the application therefor, a copy of which is attached hereto and made a part hereof, constitute the entire contract between the parties. All statements made by the Insured or by the Applicant, if other than the Insured, shall, in the absence of fraud, be deemed representations and not warranties and no such statement shall avoid the Policy or be used in defense of a claim hereunder unless it is contained in such application. No alteration of this Policy and no waiver of any of its provisions shall be valid unless made in writing by the Company and signed by an officer of the Company.

The proof showed that Dr. Farrell Varner was the physician who regularly treated several members of the Hammond family but that the insured was seen by Dr. John Barron on July 8, 1974, for a checkup. On physical examination Dr. Barron found that his eyes were slightly yellow tinted and his liver enlarged. Several tests were performed, three involving the liver function, and the results of those three tests were abnormal. Dr. Barron concluded that the insured had an abnormally functioning liver which he related to the drinking of alcoholic beverages. Thereafter he communicated with the insured by telephone to convey to him the test results, explain that he had some liver injury, damage or problem and advise that if he continued to drink, more serious health problems might develop in the future.

The application was made less than nine months following the examination by Dr. Barron. Within eleven months after the policy was issued the insured returned to Dr. Barron because his condition had worsened. His death from cirrhosis of the liver occurred exactly thirteen months from and after the policy date.

Attorney for the appellant, Mrs. Hammond, insists that it was error for the Trial Court to hold for the defendant when there was no finding of fraudulent material misrepresentations with actual intent to deceive. Appellant relies upon T.C.A. 56-1103 which provides as follows:

MISREPRESENTATION OR WARRANTY WILL NOT AVOID POLICY-EXCEPTIONS. — No written or oral misrepresentation or warranty therein made in the negotiations of a contract or policy of insurance, or in the application therefor, by the assured or in his behalf, shall be deemed material or defeat or void the policy or prevent its attaching, unless such misrepresentation or warranty is made with actual intent to deceive, or unless the matter represented increases the risk of loss.

In his findings the Chancellor specifically states:

The Court does not hold that the applicant fraudulently misrepresented matters to the Defendant Company, but the Court does find that the applicant failed to fully answer several questions and that this failure to answer fully and correctly did increase the risk of loss.

While the Chancellor did not find that the misrepresentations were made with actual intent to deceive, he did find and hold that the misrepresentations (failure to answer fully and correctly) increased the risk of loss. This finding was sufficient to deny to appellant protection of T.C.A. 56-1103, and it was not error for the Trial Court to hold for the defendant although there was no finding of fraudulent misrepresentation with actual intent to deceive.

Appellant next insists that, the defendant failed to prove by clear and convincing evidence that the insured made material misrepresentations which increased the risk of loss. In answering “no” to question 2(e) insured, in effect, denied that he had ever had any known indication of jaundice or other disorder of the liver. We have heretofore summarized the testimony of Dr. Barron which related directly to the condition of the insured’s liver on July 8, 1974. The agent, Grady Newton Bennett, was called as a witness for appellant and was questioned at length with regard to the information provided to him by insured in response to question 2(e) of Part II of the application. The relevant portions of the testimony of Bennett are here quoted:

“Q. Read the question and the answer and then the communication that came about between you two as you did whatever you did out there that day.
“A. Okay. I asked if all of these, “Jaundice, intestinal bleeding, ulcer, hernia, appendicitis, colitis, diverticulitis, hemorrhoids, recurrent indigestion, or other disorder of the stomach, intestines, liver, or gallbladder?”
He said he had none and at this time here I think is where Dr. Barron was. I asked if he had ever had any liver trouble because I knew he drank, but, like I drink, too, but he was not no guy that got up every morning and got a bottle and started drinking. He had too much work for that.
I did ask if he had any liver trouble and he said he had discussed, when he went to Dr. Barron about his nerves that he had asked Dr. Barron about the liver, if he had any liver problem, and, but — He said he had none.
“Q. Was there any diagnosis of liver cirrhosis disease disorder discussed by Hammond as to Dr. Barron?
“A. No, sir, no disorder at all.
“Q.' Just tell us what Hammond said about Dr. Barron that day.
“A. Sir, that is about the best I can describe it. When he said he had seen a Dr. Barron he told me that Dr. Barron had give him some Valium, I believe, five milligram Valium for his nerves and going through all of these questions about liver, intestinal bleeding, gallbladder, I asked him did Dr. Varner or Dr. Barron or anyone you have ever seen, you know, ever told you that you’ve got any problems with your liver or a disorder. I asked everybody that. That is routine when you are writing one of the applications, and he said no. That is the best I can explain.
“Q. When was the first date that you ever heard liver cirrhosis disease or disorder as to Thomas Hammond, as to the deceased?
“A. I didn’t know he had it when he died. It was after he died that I knew it. I knew he was sick but I didn’t know he was sick with that. I knew he was sick before he died.
“Q. On the date of the application what did Hammond say about Dr. Barron’s communication as to liver disease or disorder?
“Q. Go ahead and answer that.
“A. Well, I really, I have answered it about as well as I can. He said he had no disorder of the liver. He — Evidently, Dr. Barron was the only one he ever discussed whether he had any liver problems or not. So, he said there was no disorder of the liver. So, you know, I didn’t put anything on there about it.
“Q. What was your checkoff then?
“A. My checkoff was no.
“Q. Why did you check no and not yes?
“A. Because there is no disorder of the liver or gallbladder or any of the other things.
“Q. Okay. Now, back again before the objection, when is the first date you heard about any liver disease, disorder, or cirrhosis?
“A. That was after he died.
“Q. Coming on down, then, let me ask you this, why didn’t you put Dr. Barron’s name somewhere at that point as 2-E? “A. I didn’t feel like it was proper.
“Q. All right. Mr. Bennett, we are still on question two as to 2-E, and why didn’t you put Dr. Barron’s name on the application?
“A. I saw no reason to put the doctor’s name on the application when he just went to him for a bottle of pills. He may have went to other doctors for a bottle of pills. He come to my model home and borrowed aspirin from me sometimes.
“Q. When would you put a doctor’s name over here in the right side?
“A. If he had been to a doetor and he told me he had been to a doctor and had been treated and he told me what it was, if he took medication for it I would put it over there.
“Q. If he had liver cirrhosis, disease, or disorder, would you have put it on there?
“A. Yes, sir, I wouldn’t have wrote the application. I would have to take it on a trial basis.”

Jack Rice, Vice-President and Director of Ordinary Underwriting Division of the ap-pellee insurance company, testified relative to the findings of Dr. Barron as follows:

“Q. If you had had the benefit of Dr. Barron’s findings of enlargement of the liver and the tests being slightly above normal would you have sent him a ques-tionaire?
“A. If we had had those findings we would not have. Had he admitted this to us we would have stopped the issuance or consideration at that time. If I may I would like to answer maybe in two parts. Had we had an indication that he had an enlarged liver we would be concerned to the effect that we could not consider that risk any further until we had a liver function test. Had those tests been negative we would have recognized he had a problem then and would have been in doubt what to do about it and would maybe have to call on, perhaps, a medical director or someone who could relate to it.
But we have the combination. We have had one, the enlarged liver or the test that indicated that the enlargement was significant. We would have at that point denied the insurance.”

We cannot escape the conclusion that the insured misrepresented the condition of his health by failing to disclose to the agent in response to question 2(e) the fact that there was a known indication of disorder of his liver discovered by Dr. Barron less than nine months prior to his making application. The uncontroverted proof in the case reflects that this misrepresentation naturally and reasonably influenced the judgment of the appellee in issuing the policy. It follows that this was a misrepresentation which “increases the risk of loss” within the meaning of the statute. This is well established under the existing case law of this State. See Tegethoff v. Metropolitan Life Insurance Company, 57 Tenn.App. 695, 424 S.W.2d 565 (1966). We find, therefore, that the clear preponderance of the evidence in the case establishes that the insured made material misrepresentations which increased the risk of loss.

Appellant further insists that the insured advised agent Bennett that he had seen Dr. John Barron, that such knowledge imparted to appellee’s agent constituted knowledge to appellee, that the issuance of the policy thereafter constituted a waiver by appellee of the defense now relied upon and that appellee would be estopped to deny coverage. Bennett testified that the insured told him of the examination by Dr. Barron and stated that based upon the information provided by the insured it was his decision not to show the name of Dr. Barron in response to question 1 and question 5 on Part II of the application. However, through question 2(e) direct inquiry is made with respect to any known indication of disorder of the liver, and the uncontra-dicted proof is that the insured stated to Bennett that neither Dr. Varner nor Dr. Barron nor any other person had ever told him that he had any problem or disorder with his liver. We find that appellee was entitled to information within the knowledge of the insured concerning the condition of his liver, and we find no basis for holding that appellee had waived its right to this information. It follows that appel-lee was not estopped to rely on the defense of misrepresentation in the application.

We concur in the holding of the Chancellor. The assignments of error of the appellant are all overruled and the judgment of the lower Court is affirmed. Decree will be entered in accordance with the above and the costs of the appeal will be taxed against the appellant.

MATHERNE and NEARN, JJ., concur.


author: MATHERNE, Judge.

text:
    Willis PARTEE et al., suing on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Billy M. PIERCE et al., Trustee of the Bradford Special School District, Guy Morris, Trustee of Gibson County, Edwin E. Pigue, Chairman of the County Court of Gibson County and Gibson County, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Sept. 11, 1979.
    Certiorari Denied by Supreme Court Nov. 13, 1979.
    R. A. Ashley, Jr., Ashley & Ashley, Dyersburg, for plaintiffs-appellants.
    John C. Nowell, Jr., Tom W. Crider, No-well and Crider, Trenton, for defendants-appellees.
   MATHERNE, Judge.

The plaintiffs, landowners and taxpayers within the boundaries of the Bradford Special School District (District), sue on behalf of themselves and all others similarly situated in an effort to block a proposed bond issue by the District with resultant taxes against their land. The plaintiffs couch their complaint in terms which allege that the District has lost its legal identity because in the 1930’s it turned over complete operation of its public school system to the Gibson County Board of Education and it has not been reactivated as a special school district in accordance with the requirements of T.C.A. § 49-233 and the duly adopted regulations of the State Department of Education which implement that statute.

In dismissing the plaintiffs’ lawsuit, the trial judge held that the District had not been deactivated, but it had continued to at least partially operate its public school system from its inception to the present. The plaintiffs appeal that decision.

In order to reactivate a special school district, it must be shown that the district would have a scholastic population within its boundaries that would assure an enrollment of at least 1,500 pupils in its public schools, or the district must have at least 2,000 pupils presently enrolled in the proposed school system. T.C.A. § 49-233; Rules and Regulations of the State of Tennessee, Department of Education, Section 0520-1-701. The District has only about 750 pupils in its public school system. If the District has been deactivated, T.C.A. § 49-233 and the implementing regulations, would bar its reactivation. We fail to find statutory or case law definitions of the words “deactivate” and “reactivate” as applied in the statute and regulations above cited. A review of the history of the District is important to a decision on this issue.

■The District was created by Chapter 153, Private Acts of 1917. As authorized by statute, the District elected trustees, issued bonds, levied taxes and began the operation of its public school system. By Chapter 10, Private Acts of 1920 (Extra Session), an amendment to the act was passed which decreased the authorized tax rate under the 1917 Act from thirty cents on every $100 worth of taxable property to twenty cents per $100. By Chapter 467, Private Acts 1925, the legislature attempted to abolish all special school districts in Gibson County, Tennessee. The 1925 Act was declared unconstitutional in Melvin v. Bradford Special School District (1948) 186 Tenn. 694, 212 S.W.2d 668. In 1929 the legislature enacted Chapter 78, Private Acts 1929, which authorized the Gibson County Board of Education to invest money derived from tax levied and collected in the District in building and equipping a gymnasium in the City of Bradford, Tennessee, and to pay off any indebtedness of the Bradford School District by issuing warrants against the Bradford Special School District Fund.

According to the record, during the 1930’s the Gibson County Board of Education began receiving state funds on behalf of the District. The record does not reveal how these funds were expended, but we must assume the monies were used for the benefit of the District.

Later, the legislature enacted Chapter 707, Private Acts of 1947, which amended the 1917 Act by changing the boundaries of the District and authorizing the issuance of $50,000 worth of bonds to be paid by a tax of forty cents per $100 of taxable property within the boundaries of the District. This Act was declared to be constitutional by the Court in Melvin v. Bradford Special School District, supra.

In 1969 the trustees of the District advised the county officials that all bonded debts of the District had been paid and stated that the further levy of special taxes on property within the District for District purposes could be discontinued. The special taxes on the property within the District were then discontinued. There was no proof submitted from which it could be inferred that any attempt was made at that time to dissolve the District.

The 1917 Act, as amended, was further amended by Chapter 371, Private Acts of 1974 to change the boundaries of the District. By Chapter 167, Private Acts of 1975, the boundaries of the District were again changed.

On February 13, 1975, a delegation from the District attended a meeting of the Gibson County Board of Education and explained their intention to construct a new high school building. The minutes of that board meeting recite that “[t]he delegation plans to reactivate the Bradford Special School District and to levy taxes on the assessible (sic) property in the district to finance the planned building program [Emphasis added].” The county board voted unanimously “to back this plan of the Bradford Delegation.” Much argument has been advanced by the plaintiffs that the word “reactivate” as used in the county board’s minutes proves that the District by its admission was not then a legal entity and that in order for it to be reactivated it must comply with the provisions of T.C.A. § 49-233 and the regulations of the State Department of Education which implement that statute. All witnesses who were present at that county board meeting and who testified in this lawsuit stated that they did not recall any member of the District using the word “reactivate” in reference to the District. There are many other instances where words were used by the trustees of the District which the plaintiffs claim establish the fact that the District had no legal existence. Some of the minute entries of the meetings of the trustees of the District reflect that a trustee was to be appointed to “act as liaison and finance man to coordinate changeover from county operated system to locally operated system” (Minutes, May 11, 1977), and some entries describe the trustees as “assuming control of the Bradford Special School District from the County System” (Minutes, June 28, 1977). These expressions are not to be taken as proof that the District was not in existence nor operating its school system. These matters must be decided upon the total evidence presented.

The 1917 Act was further amended by Chapter 95, Private Acts 1975, wherein the District was authorized to issue bonds in an amount not exceeding $1,600,000 “for the purpose of constructing, improving and equipping school buildings and additions thereto . . . together with the purchase of necessary sites in connection therewith.” A tax of $1.75 per $100 worth of taxable property within the District was authorized. The Act required a referendum and approval by a majority of the votes cast therein. A referendum was held and the bond issue was approved by a vote of 916 yes and 476 no.

Some of the present plaintiffs filed a lawsuit in federal court on the ground that Chapter 95, Private Acts 1975, was unconstitutional. That lawsuit was dismissed on December 17, 1975. See Willis Partee, et a1. v. Billy Pierce, et al. filed in the United States District Court at Jackson, Tennessee. Thereafter, those plaintiffs filed a lawsuit in the state courts again attacking the constitutionality of the same private act. This Court in Partee v. Pierce (Tenn.App.1977) 553 S.W.2d 602, held that Chapter 95, Private Acts 1975, complied with constitutional requirements and dismissed the lawsuit. The District then notified the state board of education that it would, effective July 1, 1977, receive for itself all state funds to which the District was entitled. The present lawsuit was filed on November 21, 1977.

Gibson County and the chairman of the Gibson County Court were dismissed from this lawsuit on motion for summary judgment. The Trustee of Gibson County remains in the lawsuit as a stakeholder of certain funds which represent the share of a Gibson County bond issue which would go to the District if it is successful in this lawsuit.

The plaintiffs rely upon what they and their witnesses refer to as a “special contract or agreement” between the District and the Gibson County Board of Education whereby the latter named body would operate the District’s school system. The plaintiffs insist that this arrangement was entered into sometime during the 1930’s. Admittedly, the county board did receive state funds on behalf of the District. We hold, however, that the District never gave up its control over its school system. The trustees were regularly elected as provided for in the 1917 Act. They held meetings, kept minutes of the meetings, hired teachers, set salary supplements for teachers, maintained the buildings and did everything normally associated with the operation of a school system. The county board apparently paid the teachers from the money it received from the state on behalf of the District, and the county superintendent apparently signed some diplomas issued to some graduating students of the District. Some county officials claimed that they thought the county board hired the teachers for the district. We hold that the proof preponderates against that contention.

We hold that, under this record, there was no contract between the District and the Gibson County Board of Education, or any other public body, to the effect that the District’s school system would be operated under the supervision of the county superintendent as contemplated by T.C.A. § 49-401. We further hold that the plaintiffs did not prove an abolition of the District as allowed by T.C.A. § 49-402. The plaintiffs did not prove a transfer of the District’s school system administration to the county school system as allowed by T.C.A. § 49-403. The plaintiffs did not prove by the minutes of the Gibson County Board of Education that that body hired any teacher for the District or expended any county funds on behalf of the District. In short, the plaintiffs have wholly failed to establish that the county board did anything other than collect state funds for the District.

On the other hand, the history of the District from its inception to the present establishes that it did not pay off its bonded indebtedness until 1969, thirty or more years after the plaintiffs claim the district was deactivated. Several legislative enactments have been passed over the years relative to the District which indicates that it was active and existing. This lawsuit appears to be but one more attempt by the plaintiffs to avoid the-special school district tax levied on their property by Chapter 95, Private Acts of 1975. The plaintiffs’ lawsuit is without merit. All assignments of error are overruled, and the judgment of the trial court is affirmed. The cost in this Court is adjudged against the plaintiffs and the sureties on their bond.

SUMMERS and EWELL, JJ., concur.


author: DUNCAN, Judge.

text:
    Johnny HEMBY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee, Jackson.
    Nov. 9, 1978.
    Certiorari Denied by Supreme Court July 9, 1979.

      Robert C. Wilder, C. S. Carney, Ripley, for appellant.
    William M. Leech, Jr., Atty. Gen., Richard S. Maxwell, Asst. Atty. Gen., Nashville, Michael W. Whitaker, Dist. Atty. Gen., Jon Kary Blackwood, Asst. Dist. Atty. Gen., Somerville, for appellee.
   OPINION

DUNCAN, Judge.

The defendant, Johnny Hemby, was convicted in the Lauderdale County Circuit Court of involuntary manslaughter growing out of the death of his five week old son, John Rupert Hemby. He was also convicted of assault and battery upon his former wife, Mary Jane Hemby. The two cases were consolidated for trial, and the defendant received jail sentences of 11 months 29. days in each case, the sentences to be served consecutively.

In this appeal, the defendant contests the legal sufficiency of the convicting evidence, the denial of his motion for a severance, the refusal of the trial court to allow the defendant to testify regarding his recent religious experiences, the trial court’s alleged comment on the evidence, and the trial court’s refusal to run his sentences concurrently. We find no reversible error and affirm the judgments. However, for reasons expressed at the end of this opinion, the case must be remanded to the trial court for further proceedings.

The defendant does not challenge the sufficiency of the evidence regarding his assault and battery conviction, but in two assignments, he attacks the legal sufficiency of the evidence regarding his involuntary manslaughter conviction.

The evidence in this case showed that the defendant and Mary Jane Hemby were married in 1965 or 1966, divorced soon thereafter, but continued to live together. Three children were born of this union, the youngest being John Rupert Hemby, who was born in June 1977 and died on July 16, 1977. Apparently, the defendant and Mrs. Hemby remarried in the interval between the infant’s death and the trial of this case.

On July 16, 1977, the Hembys were living with Mrs. Hemby’s mother, Mrs. Mary Sue Cooper. Other family members were also living at that house, including Mrs. Hem-by’s sister, Lillian Sylvester, and the latter’s husband, James Sylvester. The defendant had been drinking during the afternoon and evening of July 16, and near midnight on that date, while he and Mrs. Hemby were returning home from a pool hall, they had an argument and the defendant slapped her. He then drove his truck into a corn field, and after they had got out of the truck, he hit Mrs. Hemby again. She sustained some rather serious injuries as a result of this beating. Thereafter, Mrs. Hemby got away from the defendant and hid in the com field. The defendant drove the truck around and through the com field doing considerable damage to the com crop. Subsequently, the defendant returned home, arriving there around “12:00 or 1:00 a. m.” Upon arriving there, the defendant awakened James and Lillian Sylvester, and told them that he and Mrs. Hemby had had a fight and asked them to go down to the com field to look for her. The evidence is undisputed that at that time the defendant was highly intoxicated and “obviously drunk.”

This defendant was charged with and convicted of involuntary manslaughter, it being the State’s theory that while in a drunken stupor, he fell asleep on a bed in which his infant son was sleeping, apparently rolled over on the baby, with the weight of the defendant’s body suffocating the sleeping infant.

Regarding the question of who had placed the baby in the bed, Mrs. Sylvester testified that she could not recall whether she or the defendant had carried the baby from its normal sleeping place to the bed. However, when she left to search for Mrs. Hemby, the baby was asleep in the bed, and the defendant was sitting on the side of the bed. The defendant told Mrs. Sylvester that the baby “would be alright in the bed.”

The Sylvesters went to the corn field and called out for Mrs. Hemby, who did not answer for fear that the defendant was with them. The Sylvesters returned to the house, and at various points in her testimony, Mrs. Sylvester testified about the respective positions in the bed of the defendant and the baby as follows:

“A. Well, when we got back from the corn field, I went in there. I had to unlock the door and then I went in and the baby was laying up under his side and I got my husband to go in there with me and I pulled the baby out from under him. Then when we got in the hall where the bathroom light was on, then I could see him in the light and could see he wasn’t breathing and I give him to my husband and he tried to give him mouth-to-mouth.”
“A. Well, Johnny was on the left-hand side of the bed. You know, he was laid out and the baby, with his face down, like that (indicating) was up under his side. You know, the side of his face was mashed down between the bed and his side and the rest of his body_Not much of it was under there. Just from about right here to about there (indicating). His legs and all wasn’t under his side.
Q. But his whole face was under his body?
A. Well, it was mashed between the bed and his side.”
“Q. (By General Whitaker) The baby was last seen alive beside him; is that correct?
A. Yes, sir.
Q. And then was found underneath him when you returned?
A. Yes, sir.
Q. Did you wake Johnny up?
A. He didn’t wake up. He was snoring loudly and all and I didn’t know if he’d wake up is the reason I had my husband come in there with me and then when I pulled the baby out from the side, it didn’t even phase him at all. He was just sleeping sound.
Q. You didn’t arouse him at all by pulling the baby out from under him?
A. No, Sir.”

(By Mr. Wilder — defense counsel)

“Q. Let me ask you about when you got back and went in to check on the baby. Let me ask you again to explain where the baby was found? Where did you see the baby when you walked in the room?
A. Up under Johnny’s side.
Q. Specifically, describe to me, if you can again, where the baby was and where Johnny was in the bed?
A. Okay. Johnny was on the left side of the bed, laid out and all with his arms and all out.
Q. Was he parallel with the bed or was he cockeyed or how?
A. He was straight up and down.
Q. Okay. Go ahead.
A. And the baby was — his face was up under his side between, you know— turned sideways between him and the mattress.
Q. Johnny was on the left side of the bed and the baby was on his right side?
A. (Nodded affirmatively.)
Q. And then you got the baby out; is that correct?
A. (Nodded affirmatively.)”

(By Mr. Wilder: — defense counsel)

“Q. Mrs. Sylvester, I just need to ask you one or two quick questions. Would you again please testify as to when you entered the bedroom, upon coming back to the house that night, as to exactly the position of the defendant and of the baby?
A. Okay. Johnny was on the left side of the bed, laid out with his arms out and the baby was against his right side with his face down and with his face between his side and the mattress.
Q. Was the baby on his side?
A. You mean — what do you mean, on his side? He was up under it, sort of. His face was between his side and the mattress.”

At another point, Mrs. Sylvester testified that the baby’s right arm was underneath the defendant, “kind of wedged in, sort of.” However, she later corrected herself and stated that she meant the baby’s left arm.

James Sylvester, in describing what he observed in the room, testified:

“Well, my wife had went in there and she come back and wanted me to come in there and help her get it — she thought she might have to move Johnny’s arm. So, when I went in there, the baby’s head was turned to where it was between Johnny’s side and the bed. So my wife went and grabbed the baby by its arm and leg and she didn’t have to pull on it hard, but she, you know, pulled it out from beside him.”

Dr. James Spencer Bell, Chief Deputy Medical Examiner for Shelby County, and Deputy Chief Medical Examiner for the State of Tennessee, as well as an associate professor of pathology at the University of Tennessee Medical School, testified that he had examined the infant’s body and found it had “cyanosis” and a “small bruise on the right shoulder.” Dr. Bell explained that “cyanosis” was “a bluish discoloration that you can see of the fingernail beds and, also, the lips when the individual doesn’t have enough oxygen in the blood to make the fingernails and lips sort of look pinkish.” Dr. Bell stated that he could not detect any traumatic injury in the child other than the small bruise of the right shoulder region, but did find that the infant’s organs displayed changes characteristic of hypoxia, which is “not getting enough oxygen to the organs.” Dr. Bell testified that these findings would be consistent with two major causes of death: (1) sudden infant death syndrome — or “crib death” — wherein a previously healthy baby, with perhaps at most a history of the sniffles, dies suddenly and unexpectedly, and the autopsy reveals nothing more than hypoxia; (2) overlaying or smothering, which “would be in the case of when someone lays upon top of the child and prevents it being able to breathe.”

Dr. Bell testified that when the symptoms suggest two possible causes of death— sudden infant death syndrome or smothering — then the case history and the circumstances surrounding the death is an important consideration. As he stated, “In a forensic pathologist’s situation, which is what I am, you use not only the anatomical changes and the external body changes, but the historical phenomena, also.” He further testified that without the benefit of the history, the cause of death could be either one, but that with the benefit of the case history in the present case, it was his expert opinion that “the child had been killed by overlaying or smothering.”

Under cross-examination, Dr. Bell stated that based upon the case history of this death, “. . . I am willing to state that the cause of death in this instance is smothering by overlaying.” Dr. Bell further stated that, “I think beyond a shadow of a doubt, that a child doesn’t smother in covers, being tangled up in them. He doesn’t smother by laying with his face down on the bed. If he’s laid upon, he may smother.” Dr. Bell also testified that an adult would normally be awakened upon rolling over on a child because there would be sufficient resistance to “disturb the adult enough that he should think about rolling off of it.” He stated that a person under the influence of alcohol “could” or “could not” be so awakened by such resistance.

Dr. C. R. Webb testified in behalf of the defendant and explained the phenomenon known as sudden infant death syndrome as follows:

“It’s one of the real enigmas that we have to contend with because it’s a situation where the cause of the death is rarely ascertained. The thinking, I think, at the present time is that this is probably a rapid, overwhelming, viral infection. So, frequently the history is that the child is put to bed by his parents on[e] night, apparently well, and then they awaken to find the child dead the next morning.”

Dr. Webb agreed that an accurate case history would play an important part in determining whether a child’s death resulted from sudden infant death syndrome or from smothering. He further agreed that in distinguishing between these two causes of death, one would have to look to the history and determine the physical facts surrounding the finding of the body. He also agreed that if a child’s body was found under an adult, and that it was previously a healthy child, then the cause of death would possibly be more consistent with smothering by overlaying, rather than with sudden infant death syndrome. On re-direct, however, he admitted that under those same facts, it was possible for the cause of death to be sudden infant death syndrome.

The defendant, in his brief, cites the case of Rucker v. State, 174 Tenn. 569, 129 S.W.2d 208 (1939), for the proposition that where it is equally possible and probable that death resulted from one cause as from another cause, and the defendant is not responsible for one of the causes, then the evidence will not support a verdict of guilty. This is a correct statement of the law. However, in our opinion, it is not applicable to the present case.

From the medical testimony present in this case, it is apparent that when a pathologist is confronted with medical findings such as were found in the examination of this infant’s body, then the case history is of vital importance in determining whether the death resulted from smothering or sudden infant death syndrome.

From the medical testimony present in this case, and from the obvious and reasonable inferences to be drawn from the proof, particularly from the testimony offered by the Sylvesters describing the position of the infant’s body, and from all of the other facts and circumstances present in the case, we are of the opinion that the evidence clearly shows that this infant’s death was caused by smothering brought about by the defendant overlaying its tiny body. This evidence does not show that it was equally possible that the infant’s death was caused by sudden infant death syndrome. The jury has so found in this case, and its verdict cannot be overturned because the evidence does not preponderate against it.

We are of the opinion that the evidence in this case is sufficient to support the defendant’s guilt of involuntary manslaughter, and we hold that the trial court acted properly in denying the defendant’s motion for a directed verdict of not guilty as to this offense.

Involuntary manslaughter is a homicide committed under such circumstances that it plainly appears that neither death nor bodily harm was intended by the party doing the killing, but that death was accidentally caused by some unlawful act, or by some act not strictly unlawful in itself, but done in an unlawful manner and without due caution, and that death was the natural and probable result of such act. T.C.A. § 39-2409; Harper v. State, 206 Tenn. 509, 334 S.W.2d 933 (1960).

Applying the foregoing law to the defendant’s actions in the present case, the evidence clearly is sufficient to support the jury’s verdict finding the defendant guilty of involuntary manslaughter.

The State’s theory of this case has been accredited by the verdict of the jury. State v. Hatchett, 560 S.W.2d 627 (Tenn.1978). The jury was entitled to draw permissible inferences from the evidence. Gossett v. State, 224 Tenn. 374, 455 S.W.2d 585 (1970). The defendant has not carried his burden to show that the evidence preponderates against the verdict and in favor of his innocence. State v. Townsend, 525 S.W.2d 842 (Tenn.1975).

The assignments on the evidence are overruled.

Next, the defendant’s complaint that the trial court should have granted a severance of the two indictments for trial is without merit.

These two offenses are interrelated and arose out of connected acts. They occurred within a short time of each other. The evidence about the defendant’s intoxicated condition and his mental state that existed at both incidents would have been competent evidence upon the trial of either offense. This evidence as well as other connected facts would have been provable by the same witnesses in both cases. When these things are present, it is not significant that other and additional evidence may have been proved regarding one or the other of the offenses.

Therefore it was within the discretion of the trial court to consolidate these two cases for trial. State ex rel. Gann v. Henderson, 221 Tenn. 209, 425 S.W.2d 616 (1968); Epstein v. State, 211 Tenn. 633, 366 S.W.2d 914 (1963); 23 C.J.S. Criminal Law § 931 (1961). With the reasonable sentences set for the defendant by the jury in these cases, we find that no prejudice has resulted to the defendant by reason of the trial judge’s action in consolidating these cases for trial. We find no abuse of discretion.

Also, we find no error in the trial court refusing to allow the defendant to testify regarding religious experiences that he may have had in jail.

Evidence of a defendant’s good character which existed prior to an alleged offense is relevant to strengthen his presumption of innocence. Strader v. State, 208 Tenn. 192, 344 S.W.2d 546 (1961). Also, a defendant’s good character which existed up to the time he testified may be relevant to enhance his credibility as a witness. Strader v. State, supra.

Thus, any religious experiences which the defendant may have had after the occurrences of these offenses would not have been relevant to strengthen his presumption of innocence. While such evidence might ordinarily have been admissible to enhance his credibility as a witness, the fact is that his credibility was not in issue. It was the defendant’s testimony that he could not remember any of the facts surrounding his commission of these offenses, and that he could not deny the testimony concerning his actions on that night. The defendant’s conduct was undisputed. The only issues were the cause of the infant’s death and whether the defendant’s actions constituted criminal negligence with regard to the homicide case. In light of his testimony, his credibility could in no way affect the resolution of those issues.

Moreover, the jury had the benefit of the knowledge that the defendant had had some religious experience because his wife testified that she was no longer afraid of him “because Johnny has been saved and we’ve both been saved and it just practically killed him when we did lose the baby.” Thus, if any error can be said to be present, it is harmless. T.C.A. §§ 27-116, -117.

In another assignment, the defendant says the trial court commented upon the weight of the evidence in his instructions to the jury.

Included in the court’s charge was this statement:

“An expert, Dr. Bell, has been allowed to testify in regard to the cause of death and did testify that in view of his examination and the history given him, that in his opinion, the cause of death was by overlay of the father, causing death by suffocation.”

The defendant did not object to this statement by the trial judge and did not list this complaint in his motion for a new trial. In the absence of timely objection at trial, review of an alleged error by this Court is not in order. Ezell v. State, 220 Tenn. 11, 413 S.W.2d 678 (1967). Further, absent any patent invalidating error, the trial judge will not be put in error upon matters not brought to his attention for correction in the motion for a new trial. Pulley v. State, 506 S.W.2d 164 (Tenn.Cr.App.1973).

Moreover, Article VI § 9 of the Constitution of Tennessee authorized the trial judge to state the testimony. From our review of Dr. Bell’s testimony, we find that it is not inconsistent with the trial judge’s statement. We hold that this statement was not a comment on the evidence. This assignment is overruled.

We find merit to the defendant’s remaining assignment of error in which he complains about the consecutive sentences imposed in these cases. The trial judge did not indicate in the record his reasons for ordering the defendant’s sentences to be served consecutively. Therefore, we remand this case for compliance with the requirement of Gray v. State, 538 S.W.2d 391 (Tenn.1976), that the trial judge indicate in the record the factors he considered in exercising his discretion. Upon compliance by the trial judge, the record will be returned to this Court for consideration of the trial judge’s findings on the reasons for consecutive sentencing.

Affirmed and remanded.

DWYER and BYERS, JJ., concur.


author: BYERS, Judge.

text:
    Ricky PRICE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee, Knoxville.
    March 15, 1979.
    Certiorari Denied by Supreme Court June 4, 1979.

      Dwight E. Stokes, Jerry K. Galyon, Sevi-erville, for appellant.
    William M. Leech, Jr., State Atty. Gen., John Zimmermann, Asst. State Atty. Gen., Nashville, Al Schmutzer, Jr., Dist. Atty. Gen., Richard R. Vance, Asst. Dist. Atty. Gen., Sevierville, for appellee.
   OPINION

BYERS, Judge.

The appellant was convicted, in a jury trial, of third degree burglary and sentenced to not less than three (3) nor more than four (4) years in the penitentiary.

Appellant says the trial court erred in allowing into evidence proof of Appellant’s prior convictions for burglary and larceny, says the trial court’s instructions to the jury were incomplete, and says the evidence is insufficient to support the verdict. The appellant also contends he was deprived of the opportunity to present an adequate defense and denied due process because the officers who investigated the burglary were negligent in failing to gather, analyze and preserve evidence at the scene of the crime.

The judgment is affirmed.

On May 11, 1978, Officer Romines of the Sevier County Sheriff’s Department was on patrol in the Kodak area of Sevier County. He spotted the appellant’s car parked near some dumpsters approximately one hundred feet from a beauty shop and a grocery store. When Officer Romines checked the beauty shop, he discovered a window had been broken. On the ground below the window, he found a large screwdriver, a comb, a ladies wristwatch, and a wallet. The wristwatch was later found to belong to Appellant’s wife; the wallet belonged to Appellant.

Inside the beauty shop, the investigating officer found dirt on a table under the window, dirt on a chair near the table, and dirt on the floor indicating the burglar had come in through the window, stepping first on the table, then stepping onto the chair and then to the floor. There was a small spot of blood found on the glass remaining in the window.

Although nothing was missing from the beauty shop, several items were in disarray as if the burglar had been looking for something.

A search of the general area by sheriff’s deputies turned up no suspects. The sheriff and two deputies then went to the appellant’s mother-in-law’s house, which was located some 8/10’s of a mile from the beauty shop. When they arrived there, they found the appellant. He had a fresh cut on his arm.

The appellant testified he left his car near the beauty shop because he had run off the road and “banged his car up”, knocking the front fender against the tire and damaging the passenger’s side door to such an extent that it had to be tied shut. He also testified he was elsewhere with his wife and child at the time of the break-in. A rebuttal witness for the State, the wrecker driver who towed Appellant’s car away from the scene, testified the front wheels rotated freely and the fender was not rubbing against the tire.

The appellant contends the evidence, which is wholly circumstantial, is not sufficient to support the jury verdict. We disagree.

A crime may be shown by circumstantial evidence alone if the circumstantial evidence sufficiently shows all the necessary elements of the crime and the appellant’s connection therewith. Marable v. State, 203 Tenn. 440, 313 S.W.2d 451 (1958); Duchac v. State, 505 S.W.2d 237 (Tenn.1973). The weight of the circumstantial evidence is for the jury to determine. Pruitt v. State, 3 Tenn.Cr.App. 256, 460 S.W.2d 385 (1970). In reviewing a case based on circumstantial evidence, we weigh the evidence in the same manner as direct evidence is weighed, that is, to determine if it preponderates against the verdict. State v. Brown, 551 S.W.2d 329 (Tenn.1977). The burden is on the appellant to show the evidence preponderates against his guilt and in favor of his innocence. Chadwick v. State, 189 Tenn. 256, 225 S.W.2d 52 (1949); State v. Townsend, Tenn., 525 S.W.2d 842 (1975).

The jury heard testimony at the trial which placed Appellant near the scene of the crime at the approximate time the break-in occurred. Other evidence incriminating the appellant included his personal belongings found at the scene of the break-in and the cut on his arm which the jury could reasonably infer was received when the beauty shop window was broken. The appellant has failed to carry his burden of proof. The assignment of error relating to the sufficiency of the evidence is overruled.

The appellant contends the trial court erred in allowing into evidence proof of Appellant’s prior convictions for burglary and grand larceny. The appellant says the trial court committed error by failing to hold a jury-out hearing to determine whether the probative effect of the convictions would be outweighed by their prejudicial effect on the jury.

The appellant had taken the stand to testify in his own behalf. On cross-examination, the District Attorney General was allowed to question the appellant as to his two prior convictions. Upon defense objections to the questions propounded by the District Attorney General, the trial court instructed the jury that these convictions were not to be considered as substantive evidence against the appellant, but were to be considered only as bearing on the appellant’s credibility. There is a presumption that the jury complies with such an instruction delivered by the trial court. Frazier v. State, 566 S.W.2d 545 (Tenn.Cr.App.1977); Bennett v. State, 530 S.W.2d 788 (Tenn.Cr.App.1975).

Furthermore, Fed.R.Evid. 609(a)(2), which deals with the introduction of prior convictions for the purpose of impeaching a witness, does not require that the probative value of the convictions be balanced against their prejudicial effect where the prior conviction is one involving dishonesty or false statement. Appellant’s prior convictions for burglary and grand larceny involve dishonest conduct, i. e., stealing. Arnold v. State, 563 S.W.2d 795 (Tenn.Cr.App.1977). The trial court’s decision to allow the prior convictions into evidence was not improper. Appellant’s assignment of error challenging the introduction of his prior convictions is overruled.

The appellant’s assignment of error concerning the trial judge’s charge to the jury is two-fold. He alleges the trial court erred in failing to charge the jury as to the misdemeanor of “criminal trespass” as requested by defense counsel. He also says the trial court should have charged “attempt to commit a felony” under T.C.A. § 40-2520.

At the outset we would note that Appellant did not raise in his motion for new trial the issue of the trial court’s failure to charge “attempt to commit a felony.” Therefore any error on this issue has been waived. Tennessee Rules of the Supreme Court, Rule 14(5).

The appellant cites T.C.A. § 40-2518 in support of his position on the theory that criminal trespass and attempt to commit a felony are lesser included offenses of burglary and as such are required to be charged to the jury. We disagree.

The situation at hand is very much similar to the circumstances in Judge v. State, 589 S.W.2d 340 (Tenn.Cr.App.1976). In Judge, the defendant was being prosecuted for second degree burglary. The proof in Judge showed the offense had been completed. The defendant presented an alibi defense. “Therefore, the sole issue at trial was the perpetrator’s identity, and there is no evidence in the record which would tend to reduce the grade of the offense.” The Court went on to hold that under such circumstances no instructions on lesser included offenses are required. Judge v. State, supra, at 342.

In the case sub judice, the proof was that the window to the beauty shop had been broken out and someone had entered the shop. The appellant contends he is wholly innocent by saying he was elsewhere when the crime occurred. As in Judge, supra, the proof shows a completed crime and the only issue is the identity of the perpetrator. We hold that under the circumstances of this case, no instruction on lesser included offenses was required.

In his last assignment of error, the appellant contends his conviction should be reversed because of the failure of the investigating officers to gather and preserve evidence found at the scene. The appellant’s theory is that the failure to gather the evidence was tantamount to suppression or destruction of evidence by the police and violated Appellant’s due process rights.

This assignment of error is overruled. The authorities cited by Appellant deal with the suppression or loss of existing evidence. It was not shown at trial that any evidence of the types alluded to by the appellant in his brief (i. e., fingerprint evidence, blood sample analysis) ever existed.

DWYER and TATUM, JJ., concur.

      . The fact that nothing was taken from the building does not preclude the jury from inferring that the breaking and entering was done with the intent to commit larceny. The intent to steal can be inferred from the actual breaking and entering of a building which contains things of value. Bennett v. State, 530 S.W.2d 788. (Tenn.Cr.App.1975).

      . This holding should not be interpreted to say that criminal trespass is a lesser included offense of burglary.