author: TODD, Judge.

text:
    Mike CARVER, b/n/f Mrs. Peggy Carver, Plaintiff-Appellee, v. Estelle RADER, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    July 25, 1975.
    Certiorari Denied by Supreme Court Dec. 5, 1975.
    William B. Bruce and Ted F. Walker, Nashville, for plaintiffs-appellees.
    Joe P. Binkley, Jr., Nashville, for defendant-appellant.
   OPINION

TODD, Judge.

The defendant, Estelle Rader, has appealed from a non-jury judgment against her and in favor of the plaintiff, Mike Carver, in the amount of $150.00 for breach of contract in respect to a bail bond.

In August, 1973, the plaintiff, Mike Carver, a minor, was arrested for murder. His mother telephoned the office of the defendant, Estelle Rader d/b/a Rader Bonding Company and the person answering the phone informed her that Rader Bonding Co. would execute a bail bond of $2,500.00 and would “stay on the bond until trial” for a fee of $265.00. The fee was paid and a bail bond was executed for appearance before the Juvenile Court and the plaintiff was released from custody. When plaintiff appeared before the Juvenile Judge, the case was transferred to the Criminal Court for trial; and the plaintiff was remanded to the custody of the sheriff. The Juvenile Judge set no bond, but referred the matter of bond to the Attorney General who designated a bond of $4,000.00 which was never made.

Thereafter, for about six months, the minor plaintiff remained in the custody of the sheriff awaiting trial. Finally, counsel for plaintiff obtained an order from the Criminal Court authorizing a bail bond of $3,000.00. The employees of defendant were requested to execute the $3,000.00 bond for an additional fee of $50.00, based upon the difference of $500.00 between the $2,500.00 Juvenile Court bond, already paid for, and the $3,000.00 bond demanded by the Criminal Court. Defendant’s employees refused to execute the Criminal Court bond for additional premium of $50.00.

This suit was brought upon a General Sessions Civil Warrant charging:

“Breach of contract entered into by the parties on or about the 14th of August, 1973, for making of Defendant’s criminal bond. Defendant made the Plaintiff bond of $2,500.00 initially for 10% of that amount plus a $15.00 service charge or $265.00 in total. Plaintiff bond is now set at $3,000.00 and Defendant refuses to continue on the bond for an additional 10% ($50.00) of the increase in the bond and refuses to return the Plaintiff’s $265.00 so he can make bond with another bonding company.”

The General Sessions Judge awarded plaintiff judgment for $79.50. Upon appeal to the Circuit Court, the Circuit Judge, sitting without a jury rendered judgment for the plaintiff in the amount of $150.00, from which judgment the defendant appealed to this Court.

Pertinent portions of applicable sections of Tennessee Code Annotated are as follows:

“40-1228. Duration of bond or recognizance. — Where the defendant in a criminal case, executes a bond, or recognizance, before any court or other person authorized by law to take the same, for his personal appearance before a court, to answer a criminal charge, the said bond or recognizance shall be valid and binding upon the defendant and his sureties thereon, for the defendant’s personal appearance before the court from term to term until the case is finally terminated or stricken from the docket, and the defendant discharged by the court; . provided that the sureties on said bond may surrender the prisoner and be released on said bond as now provided.
“40-1415. Reduction or refund of premium on bail, bond or surety. — Whenever any professional bondsman as defined in § 40-1401 furnishes bail, makes bond or furnishes surety for the appearance, before any court in this state, of any person charged with a criminal offense or a violation of any law, by means of a contract for a specified period of time, in which the bondsman acts as surety for such appearance, the premium on such contract shall be reduced or refunded upon surrender of the person charged with such criminal offense or violation of a law in an amount in direct proportion of the percentage of the unexpired term of the contract to the total amount of the premium; unless such person is arrested on an additional criminal charge while released on bail or if the bond or surety is forfeited or revoked by the court having jurisdiction of such person. (Emphasis supplied)

Defendant-appellant insists that, when bond is made for appearance before the Juvenile Court and said Court elects to remand the accused to the custody of the sheriff awaiting trial before the Criminal Court, the appearance bond is “revoked,” thereby terminating all liability of the surety, either to the state for appearance of the accused, or to the accused for partial refund of bond premium under § 40-1415, supra. The obligation of a surety to the state upon a bail bond might be terminated by “revoking” the bond and remanding the accused to custody. Such action by the court might suspend the contractual obligation of the bondsmen to “stay on the bond.”

However, such action would not terminate the agreement between the parties, recited supra, that the Rader Bonding Company would “stay on the bond until trial.” Said agreement did not stipulate trial in any particular court, and the obligation continued “until trial” in whatever court the trial might be held.

If the Juvenile or Criminal Judge had set a bond in the same amount ($2,500.00) to secure appearance before the Criminal Court, it would have been the contractual duty of Rader Bonding Company to “stay on the bond” by executing the necessary assurance for appearance before the Criminal Court and that without additional charge; and the obligation to furnish a $2,500.00 bond remained effective “until trial.”

It is noteworthy that defendant was offered the opportunity of executing the large ($3,000.00) bond for an additional proportionate fee. One of defendant’s employees testified:

“I believe it was sometime in March Mr. Bruce contacted me and asked me to go back on the bond. At this time I told him I would look into the matter. Well, the next day I looked into the matter and discovered who it was and the circumstances of it and I discovered that this boy had been put in jail by Judge Jenkins and turned over to the Sheriff’s Department over six months earlier and the bond had been set by Mr. Shriver’s office at $4,000.00 and he said he had it reduced to $3,000.00 at this time and I couldn’t make a $3,000.00 bond for $50.00 over six months later.
Q. What would have been the difference six months later making the bond and making it the day after?
A. Well, if the defendant had had an attorney during his preliminary hearing and they had contacted me within a reasonable length of time or made some arrangements we would have considered this but six or seven months later they hire an attorney and come back with all this, then we don’t feel we’re obligated and we’re not obligated in the first place if the judge revokes the bond.”

Authorities cited by appellant are distinguishable. State v. Romaine, 47 Okl. 138, 148 P. 79 (1915), involved release of bondsman by trial and sentence.

In Reed v. State, 245 Ala. 173, 16 So.2d 310 (1944); Suit v. State, 212 Ark. 584, 207 S.W.2d 315 (1947), and State v. Radcliffe, 242 Iowa 572, 44 N.W.2d 646 (1950), the defendant had been tried, convicted and sentenced.

In the present case, nothing had occurred except a preliminary hearing at which the Juvenile Judge determined, as provided by statute, that there would be no trial in Juvenile Court but that trial would be in Criminal Court.

Appellant cites authority for exoneration of the surety (from the obligation of the bond) by the remand of the accused to custody; however, the present case does not involve the liability of the surety upon the bond but the contractual obligation of the surety to the accused to stay on the bond until trial.

The obligation to “stay on the bond” was not terminated by the action of the Juvenile Judge in remanding without bail. When bail was again allowed, the obligation to “stay on the bond” required the defendant to furnish bond to the extent of $2,500.00 “until trial.” If the defendant was unwilling to furnish the entire $3,000.00 bond, defendant should have tendered the agreed $2,500.00 bond so that the remaining $500.00 bond might be acquired otherwise. Failing to tender performance of the contract, defendant is certainly obligated to make a reasonable partial refund.

Defendant, in effect, “surrendered” the plaintiff prior to the expiration of the “specified period of time” provided by the contract, hence a partial refund is in order under the statute, quoted supra.

The $150.00 partial refund as ordered by the Circuit Judge appears to be fair and reasonable.

The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against appellant.

Affirmed.

SHRIVER and DROWOTA, JJ., concur.


source: Caselaw Access Project

author: OLIVER, Judge.

license: Public Domain

text:
    Gene RUDD, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    Dec. 30, 1974.
    Certiorari Denied by Supreme Court Sept. 8, 1975.
    William S. Zwick, Knoxville, for plaintiff in error.

      David M. Pack, Atty. Gen., Tom Jennings, Asst. Atty. Gen., Nashville, for defendant in error.
   OPINION

OLIVER, Judge.

From the judgment of the Criminal Court of Knox County dismissing without an evi-dentiary hearing his petition filed under this State’s Post-Conviction Procedure Act, where he was represented by appointed counsel as he is here, the petitioner Rudd has perfected an appeal to this Court.

In his present petition he assails his original conviction upon the ground that “at arraigment [sic] day” he pleaded guilty without an attorney and the court did not advise him that he was entitled to have counsel at that time.

This record shows that in a prior post-conviction petition Rudd made essentially the same charges, alleging inadequacy of his trial counsel and that his guilty pleas were not voluntary. In dismissing that petition after review of the entire trial transcript, the trial court found that he was represented in his trial by two competent and able appointed attorneys, expressed complete satisfaction with the services rendered by his counsel, stated no one had forced him or promised him anything and he was pleading guilty because he believed this was the best thing for him to do, and that his guilty pleas were knowingly and voluntarily entered. The petitioner did not appeal from the judgment of dismissal of that former petition entered on 14 May 1973, although he was represented in that proceeding by appointed counsel.

The contention that his guilty pleas were involuntary having thus been finally adjudicated adversely to his claims, he was precluded from undertaking to raise and relitigate the same question in his present petition. TCA §§ 40-3811 and 40-3812; Myers v. State, 3 Tenn.Cr.App. 414, 462 S.W.2d 265. Although the petitioner’s former post-conviction petition was dismissed without a formal evidentiary hearing, as noted the trial judge reviewed and considered the trial transcript including the court’s careful interrogation of the petitioner concerning his trial counsel and his guilty pleas. By that thoroughgoing review and consideration of the trial transcript of the petitioner’s original trial, which the court was entitled to notice judicially and consider, Myers v. State, supra; State ex rel. Newsom v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, we are of opinion that in those circumstances the trial judge conducted a sufficiently “full and fair hearing” on the question raised in the prior petition. TCA § 40-3812.

Likewise unmeritorious are the petitioner’s allegations that he did not receive a copy of the list of jurors nor a copy of his indictments prior to trial. With respect to the list of prospective jurors, TCA § 40-2505 provides:

“The defendant is entitled to a list of the jurors summoned, to be furnished him a reasonable time before the formation of a jury is commenced.”

To begin with, Rudd does not even claim that either he or his trial counsel asked for and was denied a copy of the list of jurors summoned for that term of court, nor does he make any claim that lack of the list deprived him of a fair and impartial jury. In the case of Charlie Brown v. State, unreported opinion of the Tennessee Supreme Court filed at Knoxville March 5, 1964, and in State ex rel. Eugene Williamson v. Henderson, unpublished opinion filed at Knoxville August 9, 1967, and in State ex rel. Leonard Scruggs v. Henderson, filed at Knoxville September 18, 1967, the Tennessee Supreme Court rejected the same contention. In each of those cases the Court cited Cooley v. State, 174 Tenn. 168, 124 S.W.2d 250. And in each of those cases the Court found that the defendant suffered no prejudice to his constitutional right to a fair and impartial trial by the fact that he did not receive a copy of the jury list before trial. And the Court held in the Scruggs case, supra, that the right to a copy of the venire is waived by going to trial without request therefor, as the Court had held in State ex rel. Callahan v. Henderson, 220 Tenn. 417, 417 S.W.2d 789.

We turn now to the petitioner’s allegation that he was not furnished a copy of his indictments. Again, he does not allege that either he or his counsel requested and was refused a copy of the indictments, provided for by TCA § 40-2008. Where a defendant does not demand a copy of the indictment, a waiver thereof is implied. State ex rel. Lawrence v. Henderson, 1 Tenn.Cr.App. 199,433 S.W.2d 96; Cogdell v. State, 193 Tenn. 261, 246 S.W.2d 5.

Moreover, the law is settled in this State that when the defendant makes no request for a jury list or a copy of the indictment, the question of his right thereto cannot be raised collaterally thereafter by habeas corpus. State ex rel. Callahan v. Henderson, supra.

Affirmed.

DWYER and RUSSELL, JJ., concur.


author: DUNCAN, Judge.

text:
    Ronnie CONNER, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    July 16, 1975.
    Certiorari Denied by Supreme Court Nov. 3, 1975.

      M. H. Gamble, Jr., Maryville, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Weldon B. White, Jr., Asst. Atty. Gen., Nashville, H. Kenneth Deatherage, Dist. Atty. Gen., Kingston, John C. Crawford, III, Asst. Dist. Atty., Maryville, for defendant in error.
   OPINION

DUNCAN, Judge.

The defendant was charged in two separate indictments, each containing three counts charging burglary, larceny, and receiving and concealing stolen property. Over the defendant’s objections the cases were consolidated for trial, and the defendant was found guilty under the third count of each indictment of the offense of receiving and concealing stolen property. He received a penitentiary sentence on each indictment of not less than three (3) years nor more than six (6) years, and in the court’s judgment, the sentences were ordered to be served consecutively.

The defendant brings this appeal contesting his convictions and sentences, and for purposes of clarity, his assignments of error are hereby designated and summarized as follows:

1. The evidence preponderates against the verdicts.
2. The court refused to charge the law on accomplices.
3. The attorney general was erroneously permitted to argue to the jury that the recent possession of stolen property created a presumption of guilt.
4. The court erroneously charged the same thing as complained of in assignment number 3.
5. The court erred in allowing a witness for the state to testify as to a pre-trial statement the witness had made to a third party.
6. The court erred in consolidating the two cases for trial.
7. That an accurate and complete bill of exceptions was not provided to the defendant.

The above assignments are made as to both cases. The defendant additionally assigns as error:

As to Case No. 80:

8. That the Sony portable radio involved in this indictment was not owned by Joe D. McMurray, as alleged in the indictment.
9. That the court erred in charging the jury on the offense of receiving and concealing stolen property over the value of $100.00, contending that the proof showed the property to be valued at $100.00 or less.
10.That the verdict of the jury for receiving and concealing stolen property of a value exceeding $100.00 is contrary to the law and the evidence.

As to Case No. 81:

11. There was no evidence shown that the personal property alleged in the indictment was stolen.
12. The personal property alleged to be stolen was not identified, and it and the testimony concerning it should have been withdrawn from the jury.

In order to explain and answer the foregoing assignments, we state at the outset, that for reasons hereinafter appearing, the defendant’s convictions are reversed. Further, that if there is an ultimate conviction of the defendant, we are of the opinion that there can only be one conviction for receiving and concealing stolen property growing out of the two (2) prosecutions involved herein.

Since the burglaries and resulting larcenies occurred at different times, there could have been two convictions for either of these offenses; however, the rule is different as to receiving and concealing stolen property.

The only conclusion that can be drawn from the proof and from the verdicts of the jury in these cases is that, if received at all, the defendant received the subject items of stolen property from the thief, at one and the same time. The state offers no proof, direct or circumstantial, to show that he received the items at different times.

This exact situation was present in the recent case of Arnett Harsten and Janet Harsten v. State, Tenn.Cr.App. (See opinion dated May 6, 1975, Jackson.) In an opinion by the Honorable John A. Mitchell, the Court held that where goods stolen from multiple department stores were found in possession of the defendants, such would give rise to only one conviction for concealing stolen property. The Court cited Williams v. State, 216 Tenn. 89, 390 S.W.2d 234.

In the Williams case, the court there held, “. . . where the goods of several owners are received or concealed as a part of a single transaction, there is only one offense of receiving or concealing stolen property.” In II Wharton’s Criminal Law (Anderson) § 569, pp. 288, 289, the rule is stated thusly:

“Separate offenses are committed in receiving from the same person at different times stolen goods, knowing them to have been stolen. No distinction is made, however, when the property is received at one time, as to whether it is the property of one or several persons.”

We shall discuss the defendant’s first and second assignments of error together.

In his first assignment of error, the defendant contends that the evidence preponderates against the verdicts of the jury and in favor of his innocence. In his second assignment, he complains that the court refused to charge the jury on the law on accomplices. His special request for such a charge was refused by the court.

On May 15, 1974, a police monitor radio and a portable radio were stolen in a burglary at the home of Joe McMurray in Blount County. The radios were later recovered, and Mr. McMurray placed a value on the police radio at one hundred ($100.00) dollars, and valued the portable radio at sixty ($60.00) dollars.

On the same date, the home of C. L. Allen was broken into and there was stolen a black and white Truetone table model television set, a Hoover vacuum cleaner, and two (2) radios. The television set and vacuum cleaner were recovered. Mr. Allen placed a value on the television set at one hundred ($100.00) dollars and placed a value of one hundred thirty-five ($135.00) dollars on the vacuum cleaner.

On the same date, the above stolen items, with the exception of Mr. Allen’s two (2) radios, were allegedly left by the defendant at the home of Mr. and Mrs. Robert Dyer. Mr. Dyer testified that the defendant and a boy came to the house, had the items in the trunk of the defendant’s car, and that the defendant wanted to leave them there because he and his mother were having some trouble. Mr. Dyer said he knew the defendant and agreed that he could leave the items in his house. Mrs. Dyer supported her husband, in part, on his testimony. Later, the items were recovered in the Dyers’ home.

After the Dyers gave their statement to the police, the defendant was arrested and subsequently indicted in two cases as outlined heretofore.

It is noted that the sole evidence linking this defendant to these alleged items of stolen property was furnished by Mr. and Mrs. Robert Dyer.

The defendant insists that the court erred in not allowing the jury to decide the question of whether or not the Dyers were accomplices, and that the court should have charged the law on accomplices. In this case, if the jury had found that the Dyers were accomplices, then it would necessarily follow that a question would be involved as to whether there was sufficient corroborative proof present.

An accomplice is one who knowingly, voluntarily and with common intent unites with the principal offender in the commission of the crime. Hicks v. State, 126 Tenn. 359, 149 S.W. 1055; Monts v. State, 214 Tenn. 171, 191, 379 S.W.2d 34; Moore v. State, 1 Tenn.Cr.App. 190, 432 S.W.2d 684; McAfee v. State, 3 Tenn.Cr.App. 424, 426, 463 S.W.2d 141; Pennington v. State, Tenn.Cr.App., 478 S.W.2d 892.

In Ripley v. State, 189 Tenn. 681, 687, 227 S.W.2d 26, 29, the court said this:

“. . .By the great weight of authority, ‘the question of who are accomplices is one of law for the court when the facts as to the witness’ participation are clear and undisputed; when such facts are disputed or susceptible of different inferences, the question is one of fact for the jury.”

Whether one is an accomplice is a question for the jury under proper instructions, unless he so confesses. Hicks v. State, supra; Ripley v. State, supra.

When the facts are clear and undisputed there is no doubt but that the question concerning whether a witness is or is not an accomplice is a question of law for the court. But when the facts as to the witness’ complicity are disputed and susceptible of different inferences, it is a question of fact for the jury. Abbott v. State, Tenn. Cr.App., 508 S.W.2d 801; Ripley v. State, supra.

Apparently, in the instant case, the court decided as a matter of law that the Dyers were not accomplices and thus declined to charge the jury on the law on accomplices. We do not think the issue is that clear. Neither did the attorney general nor defendant’s counsel, as both argued the accomplice question to the jury in anticipation that the court would charge on it.

The test to be applied as to whether or not one is an accomplice is whether the alleged accomplice can be indicted for the offense. Monts v. State, supra; Casone v. State, 193 Tenn. 303, 246 S.W.2d 22; Gann v. State, 2 Tenn.Cr.App. 230, 452 S.W.2d 685.

The Dyers’ testimony is suspect in many regards. First, the stolen property was found in their premises. The “inference” of possession of stolen property as showing a consciousness of guilt, unless such possession is adequately explained, which was the basis upon which the defendant was convicted, is just as applicable to the Dyers, as it would be to the defendant in this case. By reason of this legal principle the officers could have as well secured an indictment against the Dyers for receiving and concealing stolen property as they did against the defendant. The suspicious circumstances under which the property was allegedly left at their house is significant. From their own testimony, the property was concealed in the trunk of the defendant’s automobile. One of the items, being a “police monitor” carries with it a suspicious character just by the very nature of the item. The items were allegedly left by the defendant in one pile in the bedroom. The Dyers accepted a weak excuse from the defendant that he and his mother were having trouble and that was why he wanted to leave the items there.

Operating against the Dyers in this regard is the proposition that guilty knowledge is to be regarded as established when the circumstances surrounding the receipt of the property were such as would charge a reasonable man with notice or knowledge or would put a reasonable man upon inquiry which if pursued would disclose that conclusion. Kessler v. State, 220 Tenn. 82, 414 S.W.2d 115.

Next, from their testimony, the items were not kept together, but were placed by Mr. Dyer in different parts of the house. The television set and the vacuum cleaner were left in the bathroom. The portable radio was put into use by the Dyers’ son and was located in a room upstairs. The police monitor was secreted in a closet on top of a box of clothes.

When the officers first came to the Dyers’ house, they recovered all of the items except the portable radio. The Dyers did not divulge to the officers their possession of the radio, allegedly left there by the defendant at the same time as he left the other items. It was some days later that the owner of the radio, in company with one of the officers, returned and found the radio. Even if it could be said that initially, the Dyers did not have knowledge that the goods had been stolen, certainly after the officers’ first visit they should reasonably have known it. By concealing or withholding the radio from the true owner thereafter such would give rise to a charge of receiving or concealing stolen property against them. The fact that they later surrendered the radio to the owner would not negate their complicity in the interim.

In II Wharton’s Criminal Law (1975 Supp.), § 567, p. 36, it is stated:'

“Although even when a person does not know that the property is stolen when he first acquires possession of it, it has been held that if he subsequently learns of its character and then conceals it or withholds it from the true owner, he is guilty of the offense of receiving stolen property.” Citing — People v. Scaggs, 153 Cal. App.2d 339, 314 P.2d 793.

Further, it is significant to note that there are inconsistencies in the testimony of Mr. Dyer as compared to that of Mrs. Dyer.

Mr. Dyer testified that he had been a good friend to the defendant for over 2 years, and had seen the defendant earlier in the day, “round twelve or one o’clock” up by Everett High School; that later in the day, the defendant came to his house with the subject items, stating that he came “about five o’clock, somewhere along there, four or five o’clock”; that the defendant said he wanted to leave the items there because “him and his mother had a little trouble”; that after the items were left in the bedroom, he put the police monitor in the closet and that was where the officers found it. It should further be noted that Mr. Dyer’s background reflected something less than being a law abiding citizen. The proof showed that he had been previously convicted of two (2) cases of passing forged checks some years before, and that he was, at the time of the instant trial, on probation for passing bad checks. He testified that he guessed he’d been convicted so many times for passing bad checks that he could not count them.

Mrs. Dyer testified that on the date in question, the defendant arrived at their home at “twelve or one o’clock, I guess”; that the defendant wanted to leave the items there because “I think he was going to move . . . or he was having some trouble or something ’nother”; that the police monitor was placed under the side of the bed, not in the closet, and that was where the officers found it.

Also, the Dyers gave a signed statement to the officers on May 17,1974, stating that “Ronnie Conner and Louis Cook” had brought the items to their house on May 15th, 1974, about 4:15 p. m. Again, the time here is different from Mrs. Dyer’s testimony at the trial. Also, at the trial, both Mr. and Mrs. Dyer testified that they did not know the name of the individual who was with the defendant. It appears most significant to us that in Mrs. Dyer’s testimony, she places the defendant at their home some hours before Mr. Dyer says he was there. Yet in her statement to the police, made near the time of the incident, she places the defendant at their home “about 4:15 p. m.,” which is the time more in accordance with the time testified to by her husband at the trial.

Thus, from the foregoing we conclude that the facts as to the Dyers’ complicity are in dispute and their testimony is susceptible of different inferences. In light of the entire record, we think the question of whether or not they were accomplices should have been left to the jury, under proper instructions from the court. If the jury found that they were accomplices, then the jury was entitled to know that the law required independent corroborative evidence. Had the jury been properly charged as to how they should view their testimony, we are unable to say that the jury would not have reached a different conclusion in these cases.

Therefore, we find that assignments of error numbers 1 and 2 are meritorious and we sustain them.

Since the case is being reversed and remanded for a new trial, we shall not go into great detail on the remaining assignments; however, we shall make rulings thereon as we are required to do. Jacobs v. State, 224 Tenn. 106, 450 S.W.2d 581.

In assignments 3 and 4, the defendant complains about the use of the term “presumption” by the attorney .general in arguing the law on recent possession of stolen property, and further makes a similar complaint with respect to the use of the same term in the court’s charge to the jury. The defendant argues that the term “inference” should have been used.

We have reviewed the argument and charge of which complaint is made and we do not find error in this regard. Hughes v. State, 27 Tenn. 75; Wilcox v. State, 50 Tenn. 110; Humphrey v. State, 187 Tenn. 377, 215 S.W.2d 791; Peek v. State, 213 Tenn. 323, 375 S.W.2d 863; Cook v. State, 84 Tenn. 461, 1 S.W. 254; Thomas v. State, 225 Tenn. 71, 463 S.W.2d 687; Brown v. State, Tenn.Cr.App. 489 S.W.2d 855; Kelley v. State, Tenn.Cr.App., 478 S.W.2d 73; White v. State, 210 Tenn. 78, 356 S.W.2d 411.

Further, in his brief under this assignment, the defendant complains that a portion of the attorney general’s argument amounted to a comment on the defendant’s failure to testify at the trial. We do not so interpret the attorney general’s argument. The statement of which complaint is made is a reference to the fact that the defendant did not explain to the Dyers at their home as to how he came about the property. This argument was within the bounds of the evidence.

Assignment of error number 5, which is predicated on the testimony of Mr. Dyer, regarding the contents of his statement to Officer Atchley as to what the defendant had said was his reason for wanting to leave the property with the Dyers, is well taken. This statement was hearsay and thus should not have been admitted. Since Mr. Dyer had already testified as to what the defendant had told him as to why he wanted to leave the property there, the hearsay statement would be harmless; however, upon retrial, the court should not allow the hearsay statement to be admitted in evidence.

The defendant’s complaint in assignment number 6 that the cases should not have been consolidated for trial is rendered moot by virtue of the rulings made herein.

While his contention made in assignment number 7 is likewise now rendered moot, we would state that we are of the opinion that the defendant was provided with a substantially complete, proper and accurate bill of exceptions in this case.

In assignment of error number 8, the defendant contends that in Case No. 80, the portable radio was not owned by Joe D. McMurray as was alleged in the indictment.

The proof showed that Mr. McMurray had bought the radio for his mother and that it was located in their jointly shared home, which home was owned by Mr. McMurray.

We think the proof that the radio was in the house, owned and occupied by Mr. McMurray, shows that it was in his possession, and that as such, it would have been proper to allege ownership in either Mr. McMurray or his mother. Watson v. State, 207 Tenn. 581, 341 S.W.2d 728; Stafford v. State, Tenn.Cr.App., 489 S.W.2d 46; Campbell v. State, 2 Tenn.Cr.App. 39, 450 S.W.2d 795; Fiedler v. State, Tenn.Cr.App., 479 S.W.2d 814.

In his ninth assignment, the defendant contests, as it would pertain to Case No. 80, that portion of the court’s charge on the offense of receiving and concealing stolen property exceeding $100.00 in value. The defendant says the proof shows a value of the property to be $100.00 or less.

However, the proof is to the contrary. McMurray testified that his police monitor was valued at $100.00 and his portable radio was valued at $60. In view of our ruling under the eighth assignment, the jury was entitled to consider the combined value of both the police monitor and the portable radio, and it was up to them to decide whether the property exceeded or did not exceed $100.00 in value. There was no error in the court’s charge.

Since the subject matters involved in assignments 10, 11, and 12 concern the proof and since the evidence may be entirely different upon the retrial, we will only state that as to assignment number 10, we have stated under assignment number 9 our opinion as to the value of the goods involved in Case No. 80; assignment number 11 is not meritorious, as we think the proof does show the property involved in Case No. 81 was stolen; and likewise we conclude assignment number 12 is unmeritorious, as we believe that from a consideration of all the evidence, both direct and circumstantial, the property items in Case No. 81 were sufficiently identified.

For the guidance of the trial court we make the following additional comments:

On remand, the defendant may only be tried on one of the indictments involved herein. The state may elect either the indictment in Case No. 80 or Case No. 81, but as to whichever indictment he is tried upon, his trial should be limited to the third count charging receiving and concealing stolen property. This is necessary since by the verdicts of the jury finding the defendant guilty of receiving and concealing stolen property, then by operation of the law, the defendant has been acquitted of the burglary and larceny counts in each indictment.

The settled law of this State is that a special verdict upon a single count of indictment is given the effect of an acquittal upon the other counts to which the jury did not respond, and the accused may not again be put to trial upon those other counts in the indictment. Harvey v. State, 213 Tenn. 608, 376 S.W.2d 497; Franklin v. State, 202 Tenn. 666, 308 S.W.2d 417; Marshall v. State, Tenn.Cr.App., 497 S.W.2d 761.

We further note that upon the retrial of one of these indictments, proof, if any, as to the possession by the defendant of the items listed in the other indictment and their stolen character would be admissible in evidence. We say this because all of the items involved in both indictments were comingled, were found together, and involve the same transaction. See Coffman v. State, 3 Tenn.Cr.App. 634, 466 S.W.2d 241; Lacey v. State, Tenn.Cr.App., 506 S.W.2d 809; Mays v. State, 145 Tenn. 118, 238 S.W. 1096.

However, the question of values, as it would pertain to the degree of the offense (exceeding or not exceeding $100.00), would be limited solely to the value of the items listed in the indictment being tried.

Additionally, if the jury should find the defendant guilty on the retrial, the trial court should see that they specify which offense, i. e. either receiving stolen property or concealing stolen property, since these two offenses are separate and distinct offenses. Deerfield v. State, 220 Tenn. 546, 420 S.W.2d 649.

Therefore, for the reasons stated herein, we reverse the defendant’s convictions in these cases, and remand same for a new trial.

DWYER and O’BRIEN, JJ., concur.


text:
    John Roger HUMPHREYS, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    Aug. 29, 1975.
    Certiorari Denied by Supreme Court Nov. 3, 1975.

      W. Stanley Yarbro, Johnson City, H. Dennis Erwin, Erwin, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Bart Durham, Asst. Atty. Gen., Nashville, Lewis May, Dist. Atty. Gen., Mountain City, Martha Sherrod, Asst. Dist. Atty. Gen., Richard Pectol, Sp. Prosecutor, Johnson City, for defendant in error.
   OPINION

DUNCAN, Judge.

The defendant, John Roger Humphreys, was indicted by the Washington County Grand Jury on two (2) charges of first degree murder, involving the deaths of John Roger Scholl and Susan Garrett Hum-phreys. The two (2) indictments were tried together, with the result that the defendant was found guilty of second degree murder in each case. He was sentenced to the penitentiary in each case for not less than ten (10) years nor more than twenty (20) years, the sentences to be served consecutively. The defendant has duly perfected his appeal to this Court.

In his first assignment of error, the defendant attacks the sufficiency of the evidence.

This rather extensive record, consisting of several volumes, reflects that the defendant and the deceased, Susan Garrett Hum-phreys, were married in May, 1965, while both were in high school. A child, Angela, was born to this union on November 17, 1966. In the fall of 1971, the defendant and Susan became involved with the deceased, John Roger Scholl, and his wife, Diane Scholl. According to the defendant, Susan and Scholl became enamoured with each other, and they (Susan and Scholl) sought to arrange a wife swapping affair involving the two (2) couples. The defendant testified that he, at first agreed, in order to please Susan, but later backed out. It is noted that there was no other proof regarding the alleged wife swapping affair except the defendant’s testimony. The defendant stated that Susan made several trips to visit the Scholls after the Scholls had moved to the State of Maryland. The defendant insisted that Susan had participated in other immoral affairs, and admitted that he, himself, had dated other women during their marriage.

We find it unnecessary to explore in great detail the marital difficulties that these parties experienced. Suffice to say that the record supports the conclusion that both the defendant and Susan were involved in extra-marital relationships, and in particular, Susan had established a relationship with Scholl, the end result of their difficulties being that Susan obtained an uncontested divorce from the defendant on April 16, 1973.

Prom the proof in the record, we find that on May 11, 1973, the two (2) victims, Susan and Scholl, were in her apartment. The defendant entered the apartment around 11:30 a. m. and around 1:45 p. m. shots were heard by several witnesses. The defendant was observed leaving, and thereafter Susan and Scholl were found dead. Susan had been shot twelve (12) times, with five (5) of the bullets entering her back, and Scholl had been shot six (6) times. It is undisputed that the shots were fired from a two-shot “derringer,” which would have required re-loading eight (8) times.

The state offered numerous witnesses who testified in substance that the defendant, both immediately before and after the shooting behaved in a normal manner, several stating that he looked and acted then the same as he appeared on the days of the trial. There was proof that he passed a friendly greeting to a friend as he entered the apartment. Further, it was shown that he appeared calm as he walked out of the apartment and that he drove his car away from the scene in an unhurried manner and without difficulty.

The police officers, who were involved in the arrest of the defendant soon after the difficulty, and those who saw him at the police station later that afternoon, all stated that the defendant did not appear to be nervous or upset, and that they were able to communicate with him without difficulty-

Other witnesses for the state testified as follows:

Mark Slagle testified that he knew the defendant and saw him enter Susan’s apartment; that he called out a greeting to the defendant, who smiled and “walked on towards the apartment”; that the defendant was carrying a “vodka bottle”; that the defendant appeared to him to be a “normal functional human being” at that time; that in April, 1973, the defendant had said to him regarding Susan, “Well, if I can’t get her back I’ll kill her.”

Mrs. Louise Garrett, mother of Susan, testified and said she had known the defendant for eight years; that in her opinion, he “definitely knew right from wrong” and was “a perfectly normal boy.” Susan’s brother, Robert Garrett, testified in substance to the same thing.

Reeves Zimmerman testified he had known the defendant for three (3) years, and that shortly before the killing, the defendant told him he guessed he’d have to kill Susan, if they could not get back together. This witness further stated that the defendant was a normal functional human being and knew right from wrong.

Freddie Rowe testified he had known the defendant for five (5) years and that it was his opinion that the defendant knew right from wrong, and that the defendant “seemed in control” of himself on all occasions that he had seen him.

In his testimony the defendant testified that on the date in question he arose at approximately 7:30 a. m. and went to the post office to pick up his company’s mail, and then drove by the university library to ask Susan for a date; that he discovered her car was not in her regular parking place, whereupon he proceeded to his place of employment where he remained a short time; that he then went to the bank and ultimately went to Susan’s apartment, arriving there at approximately 10:00 a. m.; that Susan, wearing a blue see-through nightgown, admitted him, and he then observed Scholl, in the nude, entering the bathroom; that at Susan’s request, he left and returned to work; that at approximately 11:00 a. m. Susan called him and invited him to return to the apartment, which he did, bringing a bottle of vodka with him; that upon arriving there he asked Susan what was going on, and she replied, “It’s obvious we are having an affair”; that Susan and Scholl wanted to make sure he would not tell anyone what was going on and they also wanted some money so they could go to Asheville for the weekend; that he had some breakfast, and a drink; that further words were had over the defendant’s intention to call Scholl’s wife; that Scholl said it would be unfortunate if he did, and the defendant replied that “it would be unfortunate” for Scholl; that after about thirty (30) minutes, Susan left the room and he and Scholl talked about their difficulties over Susan; that he (defendant) then got up and left the kitchen in about twenty (20) minutes and went to the bathroom; that at this time, Susan “handed” him “the derringer and a box of cartridges”, which he had theretofore given to her for her protection; that he then joined Susan on the couch in the living room and sat down beside her; that he professed his love to Susan, but was rejected by her; that Scholl was yelling things out of the kitchen, “quoting Shakespeare”; that he and Susan returned to the kitchen, and after further argument over the money, Susan called him “Peter Pan” and said he was “sexually frustrated”; that Scholl, who had been sitting on the kitchen counter, “jumped off the counter” on top of him; that “it was just like an automobile crash,” and he “didn’t hear anything”; that the next thing he knew he “was walking out of the apartment and it seemed to be dark and foggy outside”; that he got in his car, picked up a girl friend, Leslie Tipton, went to his house, had some wine, and realized that he “had a gun” in his pocket and “walked out in the back yard and dropped it”; that he ate “part of a hamburger” and then the police came. The defendant then related in some detail the events that transpired after the police came. The defendant concluded his testimony on cross-examination by stating that from the evidence, he did not guess there was any doubt but that he had killed Susan and Scholl.

From the defendant’s testimony in the record, it appears rather conclusively that he remembers in minute detail, the events leading up to the difficulty and those events that transpired subsequent to his leaving the scene of the homicides. It is only at the actual time of the shooting that he says he has no recall.

The defendant, in support of his plea of insanity at the time of the killings, offered as witnesses Dr. J. J. Embry, a psychiatrist and Dr. John Kandilakis, a psychologist. Both testified that in their opinion the defendant was in such a mental condition, at the time of the events complained of herein, that he could not differentiate between right and wrong.

Both doctors examined the defendant some several months after the killings. Dr. Embry initially examined the defendant on August 31, 1973, and had the defendant committed to the hospital on September 4, 1973, where he conducted other tests between then and September 16, 1973. Dr. Kandilakis conducted tests on the defendant, at Dr. Embry’s request, on September 7, 1973.

Dr. Embry stated that he saw the defendant for seventeen and one-half (17½) hours of interviewing of which two and one-half (2½) hours were devoted to a “sodium amy-tal interview,” which he described as a procedure to help one remember things which one otherwise could not recall.

Dr. Embry stated that in his first interview with the defendant, the defendant stated that he “could not remember the events of this homicide.”

Three witnesses, Charles Gordon, Charles Smith, and William Durby, testified that prior to these events the defendant was depressed and emotionally upset over his marital difficulties. Further, the first two named witnesses stated that they had heard the defendant threaten to kill himself.

The thrust of the defendant’s argument under this assignment seems to be that since two doctors testified that he did not know right from wrong at the time of the incidents, then his convictions should not be sustained. We do not think this to be the law.

We think the case of Brooks v. State, Tenn.Cr.App., 489 S.W.2d 70, 73-74 (1972) adequately states the law in regard to this question. There this Court stated:

“The defendant’s lifelong conduct of compliance with the laws of society, his successful achievement of a substantial education and civil service employment, his lack of previous mental medical history, his rational conduct immediately before and shortly after arriving at the restaurant, his ability to locate the razor in a tool box in the trunk of his car, his recollection of the water being thrown in his face, his prompt willingness to submit to superior force when confronted with the policeman’s pistol, and his psychiatric history since the events, are all items of evidence that were available for the jury’s consideration, along with opinions of the psychiatrists regarding his insanity. In view of the total picture presented by all of the evidence, we are unable to conclude that the jury arbitrarily disregarded the doctors’ opinions, or that the evidence of insanity preponderated against that of sanity.”

Our Supreme Court in Mullendore v. State, 183 Tenn. 53, 60,191 S.W.2d 149, 151 (1945), held that the actions of a defendant before and immediately after a homicide justified the jury in disbelieving the psychiatrist’s testimony that the defendant was insane. The court went on to say:

“The undisputed words and acts of the defendant immediately before, at, and immediately after the killings, are the best evidence of whether he was or was not of rational mind at the time of the crime.”

This record shows that the defendant was reasonably well educated with two (2) years of college, had a successful record of employment, and had no history of any mental problems, other than those emotional problems, that often arise out of marital difficulties. He told two (2) people that he would have to kill Susan, calmly went to her apartment where he knew she would be with Scholl and proceeded to kill them. The fact that the murder weapon was fired eighteen times, being reloaded after each two-shot series, shows in itself that the defendant was exercising mental discretion at the time. The evidence showed that the defendant left the apartment and drove his vehicle in a normal manner, picked up a girl friend, drove home, ate some food, had drinks, and hid the murder weapon in the back yard. He was able to communicate with the police in an intelligent manner.

Even if it were conceded to be a fact that the defendant could not remember the details of the crimes, still that would not avail the defendant’s cause.

In Thomas v. State, 201 Tenn. 645, 653, 301 S.W.2d 358, 361 (1957), the Supreme Court, in an opinion by Chief Justice Neil, said:

“ . . . Failure to remember later, when accused, is in itself no proof of the mental condition when crime was performed. .
“ . . . amnesia, in and of itself, is no defense to a criminal charge unless it is shown by competent evidence that the accused ‘did not know the nature and quality of his action and that it was wrong.’ ”

See also Lester v. State, 212 Tenn. 338, 370 S.W.2d 405 (1963), for the same proposition.

It was the function of the jury to decide the issue of sanity or insanity in this ease. We think the evidence amply supports the jury’s conclusion that the defendant was sane at the time of the acts in question and the record supports his conviction for second degree murder in each case.

Malice is an essential ingredient of murder in the second degree, and every homicide is presumed to be malicious in the absence of circumstances rebutting this implied presumption. Harper v. State, 206 Tenn. 509, 334 S.W.2d 933 (1960). Killing with a deadly weapon raises a presumption of malice sufficient to justify a finding of murder in the second degree, in the absence of facts and circumstances rebutting that presumption. Malice may be either express or implied. Bailey v. State, Tenn.Cr.App., 479 S.W.2d 829 (1972).

Express malice was defined in Warren v. State, 44 Tenn. 130, 135 (1867), as being “where one, with a sedate and deliberate mind, and formed design, kills another; which formed design is evidenced by external circumstances discovering the inward intention — as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm.” The case further says, “malice is implied, when the act is committed deliberately, and is likely to be attended with dangerous consequences.” See also Turner v. State, 119 Tenn. 663, 108 S.W. 1139 (1907).

Malice is an evil design in general, the dictates of a wicked and depraved and malignant heart. Malice is not necessarily confined to an intention to take the life of the deceased, but includes an intention to do any unlawful act which may probably result in depriving the party of life. Bailey v. State, supra.

When we apply the foregoing principles of law to the facts of this case, as set forth heretofore, there is no room for doubt that the evidence amply supports, at the very least, a conviction for second degree murder in each of these homicides.

In considering and passing on assignments of error challenging the sufficiency of the evidence to warrant and sustain the verdict of the jury in criminal cases, we are bound by the law that a guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the state and resolves all conflicts in favor of the theory of the state.1 Such a verdict removes the presumption of the innocence of the accused which stands as a witness for him until he is convicted, and raises a presumption of his guilt upon appeal, and he has the burden upon appeal of showing that the evidence preponderates against the verdict and in favor of his innocence. Gulley v. State, 219 Tenn. 114, 407 S.W.2d 186 (1965); Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768 (1966); Chadwick v. State, 1 Tenn.Cr.App. 72, 429 S.W.2d 135 (1968).

The evidence in this case does not preponderate against the verdicts. The assignment on the evidence is overruled.

In his second assignment the defendant contends that the verdict of the jury and the judgment of the court based thereon is contrary to law. It is his insistence under this assignment that these two offenses were parts of a single continuing act, inspired by the same criminal intent, and as such were susceptible to but one punishment.

We find this position to be untenable. In this case we are dealing with separate acts motivated by separate intents. The killing of Susan was a separate offense from the killing of Scholl.

In Smith v. State, 159 Tenn. 674, 681-682, 21 S.W.2d 400, 402 (1929), the court said:

“It is well settled that, if a person kills or injures two persons at the same time, but with separate blows or separate shots, he may be prosecuted and convicted for the assault committed upon each of his victims.”

This is so because such an assault upon or the killing of each individual is a separate and distinct offense. In State v. Cook, Tenn.Cr.App., 479 S.W.2d 823, 828 (1972), we said:

“. . . Surely it is not the law that one who feloniously kills two or more persons during an altercation or in the commission of a felony, or by poison or by ambush, can only be convicted and punished for killing one of them.
“In Morgan v. State, 220 Tenn. 247, 415 S.W.2d 879, our Supreme Court held that the two defendants who at the same time and place robbed three women who were living together and who jointly owned the money were properly prosecuted separately for the robbery of each of the women.”

In the case of Wilkerson v. State, 211 Tenn. 32, 36, 362 S.W.2d 253, 255 (1962), this Court approved the following principles:

“Where accused robbed two or more persons at the same time the prosecution for one of the robberies does not prevent a subsequent prosecution for another.” Citing 22 C.J.S. Criminal Law § 298, at page. 788.
“A putting in jeopardy for one act is no bar to a prosecution for a separate and distinct act merely because they are so closely connected in point of time that it is impossible to separate the evidence relating to them on the trial for the one of them first had.” Citing 15 Am.Jur. Criminal Law, § 390, at page 65.

In Simmons v. State, Tenn.Cr.App., 483 S.W.2d 590, 593-594 (1972), the court dealt with the problem of multiple convictions growing out of a continuous shooting episode. In an opinion by Judge Charles O’Brien, a member of the present panel, in approving such convictions, said:

“In this instance while the various victims were injured in what might have been categorized as one continuous transaction, they required separate actions, successive discharges of the firearm at the several individuals injured. The proof of the injury or death of any one would not have served to sustain a conviction for the separate injury or death to any one of the others. It very simply constituted separate offenses for which each of the several indictments, trials and convictions are justified.”

In addition to the holdings of our own Courts referred to above, the defendant’s insistence that the killings of the two (2) individuals herein constituted only one offense which he could be punished was rejected by the United States Supreme Court in Ciucci v. Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983 (1958). In Ciucci the Court held the defendant’s constitutional right of due process was not infringed by being tried in three successive trials for the murder of his wife and two of his children committed at the same time.

The defendant cites as authority the case of Acres v. State, Tenn.Sup.Ct., 484 S.W.2d 534 (1972). In that case it was held that there could not be a conviction for robbery and also a conviction for murder of the robbery victim. There the court proceeded upon the theory that the two (2) offenses were inseparable, committed at the same time and were part of a single continuing act inspired by the same criminal intent. In our case, sub judice, we are dealing with separate victims and separate intents. Moreover, we note that in State v. John Edward Black, Tenn.Sup.Ct., 524 S.W.2d 913 (1975) (opinion released June 16, 1975), our Supreme Court critically analyzed the Acres case, and while not expressly overruling same, stated it should be limited to its particular facts. In considering our case at hand it is pertinent to note that in the Black case, the defendant robbed the victim and then shot him in the leg. The Supreme Court approved his convictions for robbery as well as for an assault with intent to commit murder in the second degree.

The other authority cited by defendant is Wells v. State, Tenn.Cr.App., 509 S.W.2d 520 (1973), aff’d, Tenn.Sup.Ct., 517 S.W.2d 755 (1974). This case only stands for the proposition that where multiple drugs come into a defendant’s possession at the same time, such is a single possession and separate convictions cannot be had for the different types of drugs. As outlined heretofore, we are concerned with an entirely different situation in connection with the two homicides before us.

We hold that the defendant was properly convicted of committing both of the homicides involved herein.

The defendant’s third assignment, to the effect that the court erred in permitting lay witnesses to testify that the defendant knew the difference between right and wrong, is not meritorious.

The law in Tennessee is that a non-expert witness can testify to the sanity of another without setting out the facts upon which his opinion rested. Davis v. State, 161 Tenn. 23, 36-38, 28 S.W.2d 993, 997 (1930); Woolard v. Ferrell, 26 Tenn.App. 197, 169 S.W.2d 134 (1942).

In Davis v. State, supra, our Supreme Court stated:

“The court below followed the rule announced in Wheeler v. Parr, 3 Tenn.Civ.App. 374, and we think this rule is sound. In that case, in a scholarly opinion, Judge Hughes reviewed the authorities, our own cases and others. He pointed out, while previous decisions of this court had stated broadly that a nonexpert witness might not testify as to the mental condition of another without stating the facts on which his opinion was based, that in none of those cases had a differentiation been made between such a witness testifying as to insanity and such a witness testifying as to sanity. Judge Hughes said:
“ ‘It is clear that one who is perfectly sane, going about his ordinary avocations, and whose sanity has never been questioned, is judged by his entire course of conduct rather than by any particular incident or incidents; and to require a witness who expresses an opinion that such person is sane to give facts on which to base that opinion, further than that he has or had sufficient acquaintance with the person whose sanity is in question, or sufficient dealing or relations with him to form an opinion, would be to require the picking out of some special act or acts as distinguished from a series of thousands of acts, and to base his opinion of sanity or insanity on such special acts. This, it occurs to us, is requiring a witness to separate one sane act or a few sane acts from a thousand, and say that he bases his opinion on those, when in truth he does not do so, but rather on the acts of years, or a lifetime. On the other hand, take one whose sanity has never been questioned during an acquaintance of years and let reason become dethroned; his talk, his actions and looks will bespeak his changed condition by becoming unusual. His acquaintances notice the unusual, the changed conditions, they impress everyone and are not difficult to detail, as compared with the former condition. The changed look, talk and actions that thus impress the friend, neighbor or acquaintance is that on which the opinion of insanity is based; and it is but reasonable that the facts be given as the basis of the opinion of insanity. In other words, the exceptions to the rule attract attention and make such impressions as that those who are called on to give reasons for noting the exceptions can give them.’ ”

The defendant complains in his fourth assignment of error that the trial court erred in refusing to allow him or his attorneys to examine certain letters found by the police officers in the apartment of Susan Garrett Humphreys.

The trial court, in a pre-trial hearing, reviewed the contents of the subject letters and concluded that they contained nothing which would have been beneficial to the defendant.

At the trial, the court again declined to allow the defendant’s counsel the right to inspect these letters. However, after the trial was completed, counsel for the defendant was permitted to review the contents of the letters. In his brief, the defendant says that the letters would have been competent evidence to corroborate the defendant’s testimony concerning the involvement of Scholl, and others, in his and Susan’s marriage, which involvement, as he contends, contributed to his alleged state of insanity.

From our review of Exhibit 44, we find therein approximately forty (40) letters, allegedly written by John R. Scholl to Susan G. Humphreys. They are dated within a six (6) month period preceding the homicides. The general contents of these letters consist of expression of love for Susan, vulgarities, quotations of poetry and passages from literary works, comments about American life and Scholl’s job and station in life. In addition, mention is made of several trips by Scholl to Johnson City and two trips by Susan to Maryland to see Scholl and his wife. In several of the letters, comments are made regarding Susan’s impending divorce from the "defendant.

After considering the contents of these letters in the context of the entire record, we can see no way in which the contents of same could have aided the defendant in his defense. Moreover, there are no exceptions to the “hearsay rule” that would have allowed their admissibility under the facts of this ease. The defendant had no knowledge of the contents of these letters prior to the homicides, and thus his state of mind, at the time, could have been in no way affected by the contents of these letters. Additionally, the state did not attempt to impeach the defendant’s position that Susan and Scholl were carrying on an illicit romance, nor that Susan may have otherwise misbehaved. This record leaves no room for doubt that the jury had before it the full picture of the relationship that existed between Susan and Scholl, and as to how the defendant had been affected by that relationship.

We hold that the trial judge was correct in the various rulings he made with respect to these letters.

In the fifth assignment of error, the defendant says the court erred in permitting the attorney general to pursue a line of questioning with the defendant as to the wealth and circumstances of the defendant’s family.

The attorney general explained that he was projecting a theory that the defendant was accustomed to having everything that he wanted, and when he could not have Susan, he killed her.

The defendant denied the attorney general’s questions that his family was of great wealth, or that they provided him with everything that he needed or wanted.

In light of this entire record, we fail to see how this line of questioning prejudicially affected the defendant. It is always proper to place before the jury a party’s background, education, employment and station in life in order for the jury to more properly evaluate his testimony.

We find no merit to this assignment.

We find nothing improper about the attorney general questioning one of the doctors as to whether or not he agreed with the McNaughton rule, which is the basis of the defendant’s sixth assignment of error.

The doctor was an expert witness and had attempted to place the defendant within the framework of the McNaughton rule, by stating that the defendant did not know right from wrong at the time of the homicides. Whether he agreed or disagreed with the basic proposition enunciated in McNaughton was a factor for the jury to know in order to evaluate his testimony.

At one point in his testimony the doctor said he accepted the McNaughton rule as “one of the criterias” for legal insanity, and at another point he said he accepted “the rule as one standard for testing.”

If the doctor was basing his opinion of the defendant’s insanity upon other factors and criteria apart from the “right and wrong” test, then it was not improper for the jury to be so enlightened, and to know whether or not he accepted the McNaughton rule as the test for insanity.

In the seventh assignment the point is raised that the court erred in refusing to allow into evidence a medical history of the defendant taken by Kay Kuc-zynski, a staff member of the Watauga Mental Health Center.

We find no error here. The defendant conceded at the trial, as well as on this appeal, that the witness was not offered as an expert witness on the defendant’s mental condition. The doctors, at whose behest she interviewed the defendant, were not offered as witnesses for the defendant. The doctors who examined the defendant after the homicides did testify and these records were made available to them. The insistence that this hearsay evidence would have corroborated their findings is not tenable. Further, the defendant’s mental condition at the time of the homicides was the crux of the issue, and not what it was at some times prior to the act. The experts who did testify took the position that the defendant was insane at the time of the act because of the peculiar facts and circumstances which were present at that time.

We have reviewed the notes made by the witness at this interview, and contrary to the defendant’s insistence that such constitutes a medical history of the defendant, we find that the notes are mostly conclusions of the interviewer, the notes containing many deductions and conclusions made by the interviewer such as: “Very seriously wants his wife back, hurt by her, feels guilty,” “very depressed today,” “is beginning to understand,” “seems less depressed,” “anxiety reaction to wife leaving; suicidal thoughts, probably manipulative, depression, inability to concentrate,” “he feels rejected completely, feels in a financial bind and wonders why he should live,” “is lonely, extremely sensitive to lack of education,” etc.

We can find no legal basis why this hearsay evidence should have been admitted. Particularly so, when it is considered that the witness-interviewer was not an expert and was not offered as such. As stated in the record, her only function, as a witness, was for the purpose of admitting these notes in the record.

The Uniform Business Records as Evidence Act, T.C.A. § 24-714, provides:

“A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness, testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.”

As stated in the Act, before a record is admissible, it must be relevant and must meet the other tests required by the statute.

If the record is not relevant, or has been improperly prepared, and contains clearly inadmissible information and conclusions, such as are present here, then such cannot be admitted in evidence.

The defendant cites as his authority for the admissions of these notes the case of Covey v. State, Tenn.Cr.App., 504 S.W.2d 387, 392 (1973). We do not so interpret this case. To the contrary, that court stated, quoting from Neas v. Snapp, 221 Tenn. 325, 330, 426 S.W.2d 498, 501 (1968):

“Every report or other writing is not admissible simply because it was made or rendered in the conduct of some business or profession. A compliance with all the qualifications of the statute is a prerequisite to admissibility.”

Moreover, as we view the subject notes, it would have added nothing appreciably to the defendant’s cause, as it contained only cumulative information to other similar matters that had already been properly put before the jury. Contrariwise, we would note that the admission of same could have seriously affected the defendant’s case from the standpoint of the degree of murder involved. We say this for the reason that on April 12, 1973, some four (4) weeks before the homicides, the notes contain an entry that the defendant was threatening to kill his wife.

We conclude that the court was correct in his ruling on the question raised in this assignment.

In his last assignment, the defendant contends that the trial court committed error in allowing the prosecution to attack the defendant’s character by showing his associations with other women.

During cross-examination of the defendant, the attorney general was permitted to question him regarding his associations with other women, and the defendant admitted that he had dated other women and had sexual relations with them during his marriage to Susan.

In this case, the defendant had sought to place before the jury that he was very much in love with his wife, and that all of their marital difficulties stemmed from Susan’s infidelities. He sought to project a theory to the jury that his mental state at the time of the homicides had been brought about by her indiscretions with Scholl and others, and by her divorcing him. The defendant specifically complains of a letter which he had written to another girl, which was admitted in evidence. We quote the contents of the letter as it appears in the bill of exceptions:

“Hello, it was good to hear from you. It always makes my whole day when you call. Speaking of calling, I want to tell you why I can’t call Saturday, you’re going to be home and I’m going to be let’s say tied up, top secret you know. Sure have missed you. Me and Nancy were talking about you last week and she told me about the time you got high on dope and he got busted by the way and freaked out and thought Barker was coming over to rape you. ha. Is that why you don’t want to smoke any more or is it just with me. Guess what I’m getting a divorce, that's right, how about that. It sure would be nice to see you. Maybe some night this week. If you still think it will be a bad deal just forget it. I always had fun when we were together, but I want you to be happy. Why don’t you call me Tuesday about 10 A.M. and we will talk about getting together. Hope to hear from you Love, Roger. Hope is my favorite word besides top secret and that’s two words.” Emphasis supplied.

Contrary to the defendant’s expressed regret over the then impending divorce, it may be noted that the letter reflects considerable elation over the expected event.

We think all of this evidence of his associations with other women was competent for the purpose of contradicting the defendant as to his being a dutiful, faithful and loving husband, and to refute his position that he was emotionally upset over his wife’s behavior and the divorce.

In King v. State, 91 Tenn. 617, 20 S.W. 169 (1892), which involved one attorney killing another attorney, the defendant claimed to be a loyal and loving husband to his wife, and that the deceased-attorney had used certain language in a pleading derogatory to the defendant-attorney’s wife. Evidence of the defendant-attorney’s relations, social and otherwise, to another woman, she being the deceased-attorney’s client, was held to be proper cross-examination for the purpose of contradicting the defendant and to show motive.

The Supreme Court in Helton v. State, 195 Tenn. 36, 50, 255 S.W.2d 694, 699-700 (1953) said:

“It is also insisted that the lower court was in error in that he permitted the state to cross-examine the defendant extensively about his domestic affairs and his relations with his wife. Counsel for the defendant were undertaking to show before the jury the defendant as a faithful husband and father and no doubt for the purpose of engendering sympathy for him from that body. This, being true, we think the state was privileged to cross-examine him with reference to these relations and to show that he had been arrested for nonsupport of his wife and children.”

In Wharton’s Criminal Evidence, Yol. 1, 13th edition, § 179 (1972) it is stated that in homicide cases involving a spouse:

“. . .It may be shown that the husband committed adultery; that he had improper relations with other women; that he made advances to other women;”

See also 40 C.J.S. Homicide § 229, and cases from other jurisdictions cited thereunder.

We do not find merit to this last assignment.

We note that in each of these two cases the trial judge pronounced judgment rendering the defendant infamous. Homicide is not an infamous crime. T.C.A. § 40-2712. The judgment of the trial court in each of these two cases is modified by vacating that portion thereof which erroneously adjudged the defendant infamous. Howard v. State, Tenn.Cr.App., 506 S.W.2d 951 (1974).

We have carefully reviewed this entire record, and we find no reversible errors.

Accordingly, all of the assignments are overruled, and the judgments of the trial court are affirmed, as modified.

RUSSELL and O’BRIEN, JJ., concur.


author: BROWN, Commissioner.

text:
    Jake MOORE, Jr., Appellant, v. The STATE of Texas, Appellee. Kenneth Wayne GOODSON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 50765, 50766.
    Court of Criminal Appeals of Texas.
    Jan. 7, 1976.
    W. John Allison, Jr., on appeal only, Dallas, for appellant.
    Henry Wade, Dist. Atty., Edgar A. Mason, Robert Whaley and Jay Ethington, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

These are appeals from convictions for aggravated robbery under Sec. 29.03 of the Penal Code. The jury assessed punishment at 5 years in the Texas Department of Corrections for appellant Moore and 15 years in the Texas Department of Corrections for appellant Goodson.

The appellants were tried together for the same offense, each being individually represented by court appointed counsel. Both appellants are now represented by a single appointed counsel for this appeal. Both causes have been briefed together.

The complainant, Bernard Shaw, testified that on the morning of September 2, 1974, at approximately 3:00 a.m., he was driving on Bexar Street in Dallas County, when he was stopped by the appellant Kenneth Wayne Goodson in front of the T & P Cafe. Goodson offered the complainant a dollar to drive him to an address on Pinkston Street. The victim and Goodson had known each other for several years. After driving Goodson to a “Chicken Shack” to get something to eat, the complainant reminded Goodson of a two dollar debt. Upon reaching the Pinkston Street address, Goodson departed the vehicle saying he would get the two dollars he owed Shaw from his mother. Shaw waited in the car, a 1972 Volkswagen which he had borrowed from his sister’s common-law husband.

Shaw testified that when Goodson returned he placed a sawed-off shotgun against his neck and threatened in very vulgar terms to blow his head off. Shaw also testified that at this time Goodson appeared to be high on drugs; however, he could not say whether it was marihuana, heroin, or pills. He was however certain that Goodson was “super doped up.”

Shaw then stated that he saw appellant Jake Moore, Jr. walk up to the car. Shaw stated he got out of the car and as he did so Jake Moore backed away. At this point Goodson struck Shaw across the face with the butt of the shotgun. The blow knocked Shaw to the ground. Shaw then tried to break away, but Goodson commanded him to stop “or I’ll blow your back out.”

At this point, appellant Moore was across the street. Goodson then ordered appellant Moore to “keep your shit on him” which Shaw testified meant “pistol” in ghetto slang. Shaw stated that he heard a sound which he thought was a revolver being cocked and the cylinder of a pistol rolling in response to Goodson’s command. Shaw admitted that at no time did he ever see a pistol, but he believed that Moore had one on his person. Shaw stated that he was familiar with pistols from his experience in the military and on the streets of Dallas.

Goodson then ordered Moore to “crank up this punk’s car, man, because I’m fixing to kill him.” Goodson then asked Moore to light a cigarette for him and, as Goodson turned to Moore, Shaw testified that he was able to escape.

Shaw also testified that Goodson had taken his Accutron watch and two dollars in currency from him.

Shaw immediately reported the incident to the police and returned with them to the scene. The police, with Shaw still accompanying them, arrested Moore and a companion, in Shaw’s Volkswagen, some distance from the scene about thirty minutes after the incident.

Appellant Goodson testified in his own defense. He stated that no robbery took place but that he feared Shaw because of his bad reputation for violence. Goodson contended that he and Shaw had only argued over a debt of Shaw’s. Goodson admitted on direct examination that he had been in prison for theft after a probation revocation for the offense of aggravated assault. On cross-examination Goodson was reminded of two more cases of aggravated assault.

Appellant Moore testified that he knew a robbery was “going down” but then corrected himself and said that it was just a mistake of speech. In general, Moore denied that a robbery took place but he stated that there was an argument between Shaw and Goodson about money and that Shaw ran away. Moore stated that he was trying to find the complainant to return his car when he was arrested.

The officer who arrested Moore stated that he found no weapons of any type in the vehicle or in Moore’s possession.

Appellants’ third ground of error is that the trial court erred in denying the specially requested charge on circumstantial evidence.

The record reflects that appellant Moore timely requested a charge on circumstantial evidence which the trial court denied. Appellant Goodson did not request a charge on circumstantial evidence and excepted to the charge on grounds not brought forward in this appeal.

The State in its indictments of both Moore and Goodson alleged that aggravated robbery was committed “by using and exhibiting a deadly weapon, namely, a pistol.”

The State is bound by its allegations in the indictment and must prove them beyond a reasonable doubt. Butler v. State, 429 S.W.2d 497 (Tex.Cr.App.1968); Seiffert v. State, 501 S.W.2d 124 (Tex.Cr.App.1973). Therefore, the State was bound to prove beyond a reasonable doubt that the appellants robbed the complainant Shaw with a pistol. The proof of robbery with a sawed-off shotgun does not meet the burden. The State offered the testimony of Shaw that Goodson told Moore to put his “shit” on the complainant. Shaw stated that this was ghetto slang for “iron” and that he understood this to mean a pistol. Shaw also testified that he heard what he thought was a pistol' being cocked. Shaw admitted that he never saw a pistol of any kind at any time.

The State contends in its brief that the use of a pistol is shown by direct “earwitness” evidence. We disagree.

In Brown v. State, 162 Tex.Cr.R. 208, 283 S.W.2d 954 (1955) the appellant was charged with the offense of aggravated assault. The indictment alleged that the appellant committed the offense by shooting a pistol at the complaining witness. The complaining witness testified that he “heard a shot fired” and then later heard “more shots fired.” The evidence showed that the complainant was in a car which was being followed by a car with the appellant in it. The complainant admitted that he had not seen a pistol at any time during the incident. It was also shown that two weeks prior to the incident Brown had been seen with a pistol in his car. This Court reversed the conviction on the ground that the trial court erred in failing to give a requested charge on circumstantial evidence. We find Brown v. State, supra, to be in point.

The conversation between Goodson and Moore coupled with the sound that the complainant Shaw heard gave rise to a reasonable inference that the robbery was committed with a pistol. As this Court said in Farris v. State, 496 S.W.2d 55 (Tex.Cr.App.1973), speaking through Presiding Judge Onion:

“All of the evidence adduced was direct evidence as to the facts deposed to but indirectly as to the factum probandum of the alleged offense.”

See also Hielscher v. State, 511 S.W.2d 305 (Tex.Cr.App.1974).

As to appellant Moore, we must conclude that the trial court committed reversible error in failing to grant his special requested charge on circumstantial evidence.

As to appellant Goodson, the record reflects that he neither requested a charge on circumstantial evidence nor objected to the court’s charge for its failure to charge on circumstantial evidence. Therefore, with respect to his third ground of error, Goodson presents nothing for review. Art. 36.14, V.A.C.C.P.; Mills v. State, 508 S.W.2d 823 (Tex.Cr.App.1974).

Appellant Goodson in his first ground of error contends that the evidence is insufficient to support the conviction. We disagree. The facts are set out above in some detail. The evidence of a pistol being used is circumstantial but it is more than sufficient to support the conviction. Appellant Goodson’s first ground of error is overruled.

In his second ground of error appellant Goodson contends that there is a fatal variance between the indictment and the proof. He argues that the State alleged a pistol in the indictment and failed to prove it at the trial or at most proved the use of a sawed-off shotgun. We disagree. The State did prove a pistol although by circumstantial evidence.

Appellant Goodson’s second ground of error is overruled.

Since the trial court failed to grant the requested charge on circumstantial evidence, the judgment in cause number 50,766 is reversed and remanded.

The judgment in cause number 50,765 is affirmed.

Opinion approved by the Court.

DOUGLAS, J., dissents to the reversal of the Moore conviction.