author: LEWIS, Judge.

text:
    ANDERSON COUNTY QUARTERLY COURT, Petitioner-Appellant, v. JUDGES OF the 28TH JUDICIAL CIRCUIT, Respondents-Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    Dec. 12, 1978.

      James N. Ramsey and Jan Hicks, Clinton, for petitioner-appellant.
    James B. Scott, Jr., Clinton, for respondents-appellees.
   OPINION

LEWIS, Judge.

This case arises out of the use of the former Chancery Courtroom in the Anderson County Courthouse. Anderson County was formerly a part of the Nineteenth Judicial Circuit and the Second Chancery Division. The Legislature had also previously created a Law and Equity Court for the County. When the present courthouse was constructed, all these courts were housed on the third floor of that building.

In 1974, the Legislature created the Twenty-Eighth Judicial Circuit, composed only of Anderson County. The Law and Equity Court became the Chancery Court and, as a result, Anderson County was removed from the Second Chancery Division. Therefore, because of a general current lack of need, the courtroom formerly used by the Chancery Court fell into infrequent use by the Twenty-Eighth Judicial Circuit.

The appellant, at its meeting of June 20, 1977, entertained a motion to allow the Tennessee Department of Employment Security to have temporary use of the former Chancery Courtroom. On June 24, 1977, Judge Sidney Davis issued an ex parte injunction, enjoining the appellants and “all other officials of Anderson County” from using the Chancery Courtroom for “any purpose except as a witness room and grand jury room”.

Appellant filed a motion to dissolve the injunction and, after an evidentiary hearing, the trial judge recognized the inherent power of the Circuit and Chancery Courts to require adequate facilities, found that the space involved was necessary for the operation of the Twenty-Eighth Judicial Circuit, and entered a permanent injunction denying the use of the former Chancery Courtroom by appellant and all other county officials without the approval of one of the Judges of the Twenty-Eighth Judicial Circuit or their designated agents.

From that decision, appellant has appealed and assigns error.

The first and third assignments of error, which we discuss together, are:

1. The Trial Court erred in holding that Circuit and Chancery Judges have an inherent power over allocation of space in a county courthouse.
3. The Trial Court erred in finding that the old Chancery Courtroom was necessary to the operation of the courts of the 28th Judicial Circuit, and that it is used for judicial purposes on an average of three times each week.

Our democracy is based on a constitutional form of government. As such, one of its basic and fundamental features is the vesting of governmental powers in three branches, the executive, legislative and judicial. It is generally acknowledged that these branches are “coordinate, independent, coequal, and potentially coextensive.” See generally 16 Am.Jur.2d Constitutional Law § 210 (1964). See also Tenn.Const. art. II, §§ 1-2 (1870).

It has been declared that the division of governmental powers into executive, legislative, and judicial represents probably the most important principle of government declaring and guaranteeing the liberties of the people, and that it is a matter of fundamental necessity, and is essential to the maintenance of a republican form of government. 16 Am.Jur.2d Constitutional Law § 212 (1964).

The three branches of government are independent in exercising their assigned duties, whether they be constitutional in nature, statutory or otherwise. Thus, our Supreme Court has stated:

“It will therefore be observed that the power of the legislature over the judicial branch of the government must conform to the limitations expressed in the Constitution. It should be noted that the Constitution does not reserve to the Legislature all right to deal with any other branch of the government with certain exceptions, but there is an express prohibition of any branch of the government exercising any power properly belonging to another branch except in the cases expressly directed or permitted by the Constitution itself.” Moore v. Love, 171 Tenn. 682, 686, 107 S.W.2d 982, 983 (1936), citing Lawyers’ Tax Cases, 55 Tenn. (8 Heisk.) 565; The Judges’ Cases, 102 Tenn. 509, 629, 53 S.W. 134, 138 (1899).

As it has been aptly stated:

Each department of the government must exercise its own delegated powers, and unless otherwise limited by the constitution, each exercises such inherent power as will protect it in the performance of its major duty; one department may not be controlled or even embarrassed by another department unless the constitution so ordains. 16 Am.Jur.2d Constitutional Law § 213 (1964).

The courts derive their basic authority from the constitution which, by necessity, grants all powers necessary to engage in the complete performance of the judicial function. However, the courts are caught in a unique dilemma in performing that function.

As a co-equal branch of government, the judiciary is the least co-equal:

[T]hey constitute an independent branch of government, critically necessary to the balance of our constitutional system. Yet they are expected to eschew the normal political process and, unlike competitors for public resources, are prohibited from cultivating their, own constituencies and utilizing lobbyists. Hazard, McNamera & Sentilles, Court Finance and Unitary Budgeting, 81 Yale L.J. 1286 (1972). [hereinafter cited as Hazard].

Further:

[t]he judiciary has no power to appropriate funds, as does the legislative branch, and ... no power to exercise a veto as a bargaining device, as does the executive . . . . Taggart, Judicial Power — The Inherent Power of the Courts to Compel Funding for Their Own Needs — In Re Juvenile Director, 87 Wash.2d 232, 552 P.2d 163 (1976), 53 Wash.L.Rev. 331 (1978) [hereinafter cited as Taggart].

The problem is exacerbated because:

[Jjudges wield little political power and are afflicted with a self-effacing attitude of judicial restraint. Traditionally, the court system has been the “nonsqueaky wheel” [of public finance]. Thus . in deference to separation of powers, judges will lean over backward to avoid encroaching on the legislative branch’s [power] . . . . Carrigan, Inherent Powers of the Courts, Nat’l C. St. Judiciary 1 (1973) [hereinafter cited as Carri-gan].

Whatever negative aspects the separation of powers doctrine has on the ability of the courts to operate effectively and efficiently, there is a corollary positive aspect of the doctrine.

However, the separation of powers doctrine, properly understood, imposes on the judicial branch not merely a negative duty not to interfere with the executive or legislative branches, but a positive responsibility to perform its own job efficiently. This positive aspect of separation of powers imposes on courts affirmative obligations to assert and fully exercise their powers, to operate efficiently by modern standards, to protect their independent status, and to fend off legislative or executive attempts to encroach upon judicial perogatives. Id. at 1 — 2.

This doctrine of separation of powers is not absolute. It is complemented in constitutional theory by the doctrine of checks and balances.

Indeed, there is evidence that the drafters of the constitution viewed checks and balances as an integral part of the separation of powers doctrine. Madison, in discussing separation of powers, argued: “[U]nless these departments [the three branches of government] be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.” The Federalist No. 48 (J. Madison). Taggart, supra at 335 n. 18.

This is important because to the extent that any one branch of government becomes subservient to another, its ability to act in its role of providing a “check and balance” is curtailed and the effective concept of government ordained by our constitution rapidly loses its viability as envisioned by the founding fathers.

To offset their politically disadvantageous position and to insure the orderly and efficient operation of their functions, the courts, in recent years, have been more willing to utilize their inherent powers.

The concept of inherent powers has been utilized by the courts most often and strongly in insuring proper funding of the judicial function. In this context, the concept has been defined in this manner:

The courts are a constitutionally created branch of government whose continued effective functioning is indispensible; performance of that constitutional function is a responsibility committed to the courts; this responsibility implies the authority necessary to carry it out . Hazard, supra at 1287.
The phrase “inherent powers” is used to refer to powers included within the scope of a court’s jurisdiction which a court possesses irrespective of specific grant by constitution or legislation. 20 Am.Jur.2d Courts § 78 (1964).
The term “inherent power of the judiciary” means that which is essential to the existence, dignity and functions of the court from the very fact that it is a court. In Re Integration of Nebraska State Bar Ass’n, 133 Neb. 283, 286, 275 N.W. 265, 267 (1937).
Inherent powers consist of all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective. Carrigan, supra at 2.

The inherent power that vests in a court at its creation, however, is not unlimited.

The inherent powers of a court do not increase its jurisdiction; they are limited to such powers as are essential to the existence of the court and necessary to the orderly efficient exercise of its jurisdiction. 20 Am.Jur.2d Courts § 78 (1964).

Primarily, the use of the inherent powers doctrine has been, but not exclusively limited to, securing relatively minor fiscal expenditures necessary for the courts to operate. See e. g., Powers v. Isley, 66 Ariz. 94, 183 P.2d 880 (1947) (court has the inherent power to fix the salaries of court reporters); Millholen v. Riley, 211 Cal. 29, 293 P. 69 (1930) (inherent power to fix salary of secretaries to appellate courts); Smith v. Miller, 153 Colo. 35, 384 P.2d 738 (1963) (fixing salaries of clerks in trial court and probation officers); State v. Rush, 46 N.J. 399, 217 A.2d 441 (1966) (holding counties responsible for paying court appointed attorneys); Judges of Third Judicial Circuit v. County of Wayne, 383 Mich. 10, 172 N.W.2d 436 (1969) (would allow court to employ a law clerk or law clerks).

In Noble County Council v. State, 234 Ind. 172, 125 N.E.2d 709 (1955), it was held that judges have the authority to determine the necessity and choice of additional court employees, in this case a probation officer. In Montgomery v. Board of Chosen Freeholders, Cir. No. L-23910-70, Super.Ct., Passaic Co., N.J. (1971), the issue concerned the need for additional clerks and how many would be employed.

In Milburn v. Burns, 1 Ariz.App. 147, 400 P.2d 354 (1965), the court used its inherent powers to determine the time a salary increase would take effect.

Facilities and equipment have also been the subject of the use of inherent powers. In The Matter of Repairs and Rehabilitation of the Facilities of the La Porte Circuit Court, La Porte Circuit Court, La Porte, Ind. (1968), modernizing, remodeling and air conditioning of the courthouse were accomplished by mandate at the trial court level.

Inherent powers have been used to control courthouse space. Zangerle v. Court of Common Pleas, 141 Ohio St. 70, 46 N.E.2d 865 (1943), upheld a court’s claim to courthouse space and justified the ouster of county officers from space needed to expand court services. And, in Board of Commissioners v. Stout, 136 Ind. 53, 35 N.E. 683 (1893), the court stated:

The “courthouse”, as the term implies, is chiefly for the use of the court, the remaining uses being subordinate and to a great extent incidental. Id. at 62, 35 N.E. at 685. [involving use and operation of county courthouse elevator]

But, however broad and justifiable the use of inherent powers may be, it is not a license for unwarranted flexing of the judicial power. The generally recognized standard for applying the inherent powers doctrine requires its use to be reasonable and necessary.

That courts have inherent power to do all things that are reasonably necessary for the proper administration of their office within the scope of their jurisdiction is a well-settled principle of law. In Re Surcharge of County Commissions, 12 Pa.D. & C. 471, 475 (Lackawanna Co. Comm.P1.1928) [emphasis added]

That this standard is broad and nebulous is without question. However, a recent decision has discussed it in depth. In 1976, the Supreme Court of Washington, in In Re Juvenile Director, 87 Wash.2d 232, 552 P.2d 163 (1976), imposed, “for the first time in any jurisdiction, a strict standard which the court must meet to prove . . . reasonable necessity . . . .” Taggart, supra at 331.

There, the superior court of Lincoln County proposed a salary increase for its director of juvenile services. The County Board of Commissioners rejected the in-, crease and refused to honor the subsequent order to pay. The trial judge found an inherent power in the court to agree with the director on his compensation. Thus, a statute granting the board the power to determine the director’s salary was held to be unconstitutional as an infringement of the court’s power to appoint. Id at 235, 552 P.2d at 165.

On appeal, the Washington Supreme Court did not agree that the statute was unconstitutional. Id. at 236, 552 P.2d at 166. But, the court did agree that under some circumstances the court has the inherent power to set salaries of court personnel. The court asserted that this power should only be used by the court when reasonable necessity could be shown by “clear, cogent, and convincing proof”. Id. at 251, 552 P.2d at 174.

In an in-depth evaluation of In Re Juvenile Director, one commentator notes:

[T]hat by requiring courts to meet a strict standard of proving reasonable necessity before they are allowed to compel funding of their own operations under the inherent powers doctrine, the Washington Supreme Court has correctly perceived the pitfalls and illusory attractiveness of liberal application of the doctrine and has correctly determined that constitutional and political considerations require great restraint in its application. Taggart, supra at 333.

The commentator notes that many jurisdictions require proof beyond a reasonable doubt in many types of civil actions but that this court does not equate a “clear, cogent, and convincing proof” standard with proof beyond a reasonable doubt. “Rather, it is a standard of proof lying somewhere between a preponderance of the evidence and the more rigorous standard of proof more commonly found in criminal proceedings.” Id at 332 n. 11.

This standard of proof is greater than that utilized in other jurisdictions which have considered the matter. See, e. g., Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d 193, cert. denied, 402 U.S. 974, 91 S.Ct. 1665, 29 L.Ed.2d 138 (1971). These other jurisdictions generally only require the normal preponderance of the evidence standard of civil litigation. In general, the burden of establishing the reasonable necessity for involving inherent powers has rested on the court. See generally Commonwealth ex rel. Carroll v. Tate, supra.

Of import here is the Washington Supreme Court’s purpose in establishing such a high standard of proof. The court discusses the doctrines of separation of powers and checks and balances upon which the doctrine of inherent powers rests. The decision notes a serious potential for abuse of the separation of powers doctrine, especially in the area of judicial planning, and the counter-check that is afforded through use of the inherent powers doctrine.

Justice Utter, speaking for the court also recognized the potential abuse of inherent power by the judiciary itself through its interference with government financing, an essentially political act. He noted:

The judiciary is isolated from the opinion gathering techniques of public hearings as well as removed from politically sensitive, proportionately elected representatives. [T]he judiciary’s image of impartiality and the concomitant willingness of the public to accept its decisions as those of a fair and disinterested tribunal may be severely damaged. In Re Juvenile Director, supra, 87 Wash.2d at 249, 552 P.2d at 173.

The court’s point is:

Because the public is the final arbiter of disputes between the branches, it is necessary that the public find acceptable the exercise of this inherent power if it is to have any long term usefulness. Tag-gart, supra at 336.

The Washington Supreme Court’s admonition to carefully control the use of inherent powers is well taken. Its strict standard of proof requiring the proving of reasonable necessity by “clear, cogent and convincing” evidence is not only a useful tool in protecting the integrity of the doctrine but also in protecting the integrity of the judicial system itself..

As has been previously noted, the use of the inherent powers doctrine has been closely related to judicial financing. And, it is in that context thát the carefully written opinion of In Re Juvenile Director is set.

However, judicial finances should not be considered the limiting factor of close judicial scrutiny of the doctrine itself. The hazards which present themselves so clearly in the area of judicial financing spill over into other areas of intergovernmental branch conflict.

In light of the lack of any guiding precedent in Tennessee decisions and the theoretical and practical soundness of the opinion of In Re Juvenile Director, we take this opportunity to adopt the principle that in utilizing the inherent powers doctrine, the court asserting the power must establish reasonable necessity by “clear, cogent and convincing proof.”

Appellant argues that Article II, Sections 1 and 2 of the Tennessee Constitution places the exclusive power of the expenditure of the public moneys in the legislative branch of government. See State ex rel. Weldon v. Thomason, 142 Tenn. 527, 221 S.W. 491 (1919).

Further, the state legislature has properly delegated the taxing power to the County Quarterly Court in order that it may erect, repair and maintain courthouses. See Tenn.Const. art. II, § 29 (1870); T.C.A. §§ 5—706 and 5-901; Cannon County v. Hoodenpyle, 26 Tenn. (7 Hum.) 145 (1846).

Finally, that as an incident of its taxing and appropriation power, the County Quarterly Court has control of all county property, including the allocation of courthouse space. See T.C.A. § 5-701; Driver v. Thompson, 49 Tenn.App. 646, 358 S.W.2d 477, cert. denied, id. (Tenn.1962); State ex rel. Brooks v. Eblen, 185 Tenn. 566, 206 S.W.2d 793 (1947).

We note at this point that appellant’s reliance on Driver v. Thompson, for the proposition that “implicitly the County Judge himself had no right to appropriate space even if his office was ‘inadequate’ ”, is not controlling here as to the validity of the inherent powers doctrine. The issue under discussion in Driver v. Thompson goes only to the proposition of whether or not the sheriff of the county is authorized and empowered under law to order changes in the structure of a courthouse as contemplated by a county judge. Furthermore, Driver v. Thompson was involved with a court lacking general jurisdiction, an issue underlying the inherent powers doctrine that is better left for a more appropriate factual pattern.

The effective functioning of the courts is indispensible to a democracy; to see that they function effectively is a responsibility of the courts; the inherent power to carry out this responsibility is implied from the very fact of the responsibility. The Circuit and Chancery Courts of this State must have and do have the inherent powers necessary to insure the adequate fulfillment of their judicial functions.

However, the record does not establish the requisite reasonable necessity for involving the inherent powers doctrine to maintain control of the former Chancery Courtroom.

At the present time there is a Circuit Judge and a Chancellor serving the Twenty-Eighth Judicial Circuit. Each has an adequate courtroom with jury facilities.

The trial Judge found that the old Chancery Courtroom was used for trial of cases on an average of three times each week and was necessary for the operation of the Twenty-Eighth Judicial Circuit. We have searched the record and are unable to find any evidence to substantiate this conclusion. While Mr. Lawson, the Clerk and Master, did testify that the courtroom was used “at least three times a week for different occasions”, the proof does not establish that this use was for functions of the Twenty-Eighth Judicial Circuit or that use of the courtroom at least three times a week was necessary for the adequate fulfillment of the functions of the Twenty-Eighth Judicial Circuit.

Mr. Lawson began keeping records on the use of the courtroom after the controversy surrounding the courtroom began.

As this record shows, this room is used only infrequently for the Twenty-Eighth Judicial Circuit. From January 4 through October 25, the record shows that the old courtroom was used fifteen times for business related to the Twenty-Eighth Judicial Circuit. This included three times by the Special Master and six times as a witness room.

That it would be convenient to have the use of this room there is no doubt, but convenience is not the criteria for utilization of inherent powers.

In a case such as this the Court of Appeals reviews the law and the facts de novo upon the record from the trial court with the decision of the trial court accompanied by a presumption of correctness unless the preponderance of evidence is otherwise. T.C.A. § 27-303. If the evidence preponderates against the finding of the trial judge it is the duty of the Court of Appeals to enter such judgment as the law and the evidence warrants. Loftis v. Stuyvesant Insurance Co., 54 Tenn.App. 371, 390 S.W.2d 722 (1964).

From a review of this record we find that the Judges of the Twenty-Eighth Judicial Circuit have adequate courtroom facilities and that under the confined facts of this case, under either the higher standard of clear, cogent and convincing proof or merely a preponderance of the evidence, the appellees have failed to establish such reasonable necessity for the use of the courtroom that will allow them to utilize their inherent, powers.

Appellant, by assignment of error two (2), contends:

2. The Trial Court erred in granting an injunction when there was no eminent threat that the Quarterly County Court would deprive the judiciary of their use of the former Chancery Courtroom.

This question is raised for the first time on appeal. Even if it be error, it must be considered waived under Rule 12(4) of the Court of Appeals. City of Kingsport v. Lay, 62 Tenn.App. 145, 459 S.W.2d 786 (1970).

By assignment of error number four (4), appellant contends:

4. The Trial Court erred in denying Appellant its statutory right to a jury trial on the issue of fact as outlined in Appellant’s timely demand for a jury

It is appellant’s contention that pursuant to Tennessee Code Annotated § 21 — 1011 they are entitled to a jury trial. This contention is without merit.

Tennessee Code Annotated § 21-1011 provides that:

Either party to a suit in chancery is entitled, upon application, to a jury to try and determine any material fact in dispute, save in cases involving complicated accounting, as to such accounting, and those elsewhere excepted by law or by provisions of this Code, and all issues of fact in any proper case shall be submitted to one jury.

This Court, in Doughty et al. v. Grills et al., 37 Tenn.App. 63, 260 S.W.2d 379, 386 (1952), said:

“[c]ases of purely equitable cognizance falling under the inherent jurisdiction of the Chancery Court, not' only are not within the constitutional guaranty of trial by jury because of the fact that the guaranty refers to common law actions only, but that they are within the exception to Code Section 10-574 [now T.C.A. § 21-1011] providing for juries in Chancery, — that is, they are among the cases ‘elsewhere excepted by law or by provisions of this Code.’ ”

Further:

“My virtue of the language, ‘elsewhere excepted by law or by provisions of this Code’ . . . it is meant to exclude from the operation of that section not only those cases expressly excluded by some other provisions of the Code but suits in which under the common law a litigant was not entitled to a jury as a matter of right. This means that cases of purely equitable cognizance falling under the inherent jurisdiction of the Chancery Court are excepted because there was no right at common law to a jury trial in an equity case.
“The present suit being one of that type, [one seeking an injunction] there was neither a constitutional right nor a statutory right to a trial by jury; and hence, the rules applicable in courts of equity, independent of the statute and the constitution, govern.” Id. 260 S.W.2d at 387.

An injunction proceeding, such as the one before us, does not come within the provisions of T.C.A. § 21 — 1011 providing for juries in certain Chancery cases.

It results that assignments of error One, Two and Four are overruled, and assignment of error Three is sustained.

The judgment of the trial Court is reversed and this cause dismissed with cost to appellees.

PARROTT, P. J., and GODDARD, J., concur.

      . Record of use of Old Chancery Courtroom— Spot Record
      Jan. 4, 1977 — used in Evening
      Jan. 5, 1977 — used by Welfare Dept.
      Jan. 27, 1977 — used for Witness Room
      Feb. 3, 1977 — used by County Agent @7:00 P.M.
      Feb. 7, 1977 — used for Jury Room
      Feb. 10, 1977 — used by County Agent @ 7:00 P.M.
      Feb. 15, 1977 — used by Veterans @ 8:30 A.M.
      Feb. 16, 1977 — used for Court hearing — All Day
      Feb. 17, 1977 — used by County Agent @ 7:00 P.M.
      Feb. 21, 1977 — Truancy Court — 2:00 P.M.
      Feb. 24, 1977 — Juvenile Court
      Feb. 25, 1977 — Chancellor Inman used for Court Hearings
      Mar. 7, 1977 — Truancy Court
      Mar. 7, 1977 — Welfare Dept. Meeting
      Mar. 10, 1977 — used for depositions
      Mar. 11, 1977 — used by School Department for meeting
      Mar. 14, 1977 — used for meeting in evening
      Mar. 15, 1977 — used by Chancery Court for witness room
      Mar. 15, 1977 — Truancy Court
      Mar. 21, 1977 — used by Chancery Court for witness room
      Mar. 28, 1977 — used by Chancery Court for witness room
      Mar. 29, 1977 — used by Chancery Court for witness room
      Mar. 30, 1977 — Welfare Dept, had meeting
      Mar. 31, 1977 — Welfare Dept, had meeting
      April 5, 1977 — Health Council Group @ 8:00 P.M.
      Apr. 12, 1977 — used for meeting
      Apr. 26, 1977 — Special Master’s Hearing 9:00 AM to 4:00 PM
      May 3, 1977 — Special Master’s Hearing 9:00 A.M.
      May 9, 1977 — Chancery Court — Judge Hardin
      May 11, 1977 — Used by Special Master
      June 9, 1977 — used for witness room
      June 23, 1977 — Welfare Dept, used for meeting
      July 7, 1977 — George Legg used for depositions
      October 3, 1977 — Courtroom used for Grand Jury
      Oct. 4, 1977 — Courtroom used by Chancellor Prince, had Court
      Oct. 25, 1977 — used as Jury Room
      NOTE: Truancy Court is usually held in the Old Chancery Courtroom each Monday at 1:00 P.M.


source: Caselaw Access Project

author: EWELL, Judge.

license: Public Domain

text:
    Mildred P. WILLIAMS, Plaintiff-Appellant, v. M. C. WEST CONSTRUCTION COMPANY and Hooker Chemical Company, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 18, 1978.
    Certiorari Denied by Supreme Court March 12, 1979.

      Thomas E. Fox, Franklin, Emory B. Gill, Centerville, for plaintiff-appellant.
    Gayle Malone, Jr., Thomas H. Peebles, III, Trabue, Sturdivant & DeWitt, Daniel D. Finch, Finch & McBroom, Nashville, for defendant-appellee M. C. West Const. Co.
    Edward C. Blank, II, MacFarland, Colley, Blank & Jack, Columbia, for defendant-ap-pellee Hooker Chemical Co.
   EWELL, Judge.

On February 6,1976, Mildred P. Williams, plaintiff-appellant property owner, filed suit in the Chancery Court of Hickman County, Tennessee, against defendants-ap-pellees, Hooker Chemical Company, owner of mineral rights in land situated near plaintiff’s land, and M. C. West Construction Company, independent contracting company employed by Hooker to remove phosphate from said land. Plaintiff insisted that the actions of the defendants, related to the mining operations, had resulted in damage to her land and sought either in-junctive relief whereby the Court would order defendants to restore her property to as good a condition as it was prior to the alleged damage or, in the alternative, judgment in the amount of $15,000.00 for damages to her property resulting from the acts of the defendants. The case was heard by Chancellor Alex W. Darnell who found for the defendants and dismissed plaintiff’s complaint. The relevant facts are set forth in the Chancellor’s Opinion filed in the case as follows:

“The plaintiff owns a 12 acre tract on a secondary road in Hickman County, Tennessee. This property is bordered on the south by a small creek; and the creek passes under the road at the west (sic: east) end of Plaintiff’s property. On the north side of this same road there is one-third of an acre belonging to the Plaintiff.
“Beginning in 1972 and over a period following about two years the Defendants removed phosphate from the property on the north side of this secondary road. The actual mining was done by the defendant M. C. West Construction Company. The Plaintiff testified that after the removal of the phosphate began her spring dried up; and the water which she took from her well became muddy (reddish color), in August of 1973. She further testified that because of the ore and dirt removal that water was caused to run across the one-third acre on the north side of the road, causing portions of the one-third acre to be washed away.
“The defendant M. C. West widened this small road adjacent to Plaintiff to two lanes, raised the grade by two or three feet, and replaced the wooden bridge with a culvert. The metal culvert used in place of the bridge was furnished by the Hickman County Highway Department, and the county employees connected the parts of the culvert at the site and fixed the struts on the interior in order for M. C. West employees to make the fill. Prior to widening the road the Plaintiff’s deceased husband agreed to give 8-10 feet of his property for that purpose. The Plaintiff never agreed to this and did not talk to anyone about it. During the course of the road widening M. C. West’s employees filled a ditch on Plaintiff’s property, placed some fence on her property, and modified her driveway leading to the road.
“The Plaintiff claimed that changing the creek crossing from a wooden bridge to a culvert and raising the grade some three feet causing water to back up on her property and especially over her pump (at the corner of the bam) during heavy rains. She stated that approximately one-half acre of her property was covered by water, which had not been the case before the culvert was put in. She also stated that rocks from the widening of the road are tearing up her fence and that the change in the grade and washing effects keeps her from getting on to her one-third acre across the road.
“All the damages claimed by the Plaintiff were caused (according to her testimony) either by the removal of the phosphate ore on the land across the road from her property, i. e., spring dried up and well water became muddy; or by the change in the road grade, i. e. one-half acre is flooding and the pump at the barn is flooded.
“All of the road changes were made during the life of Plaintiff’s husband. The two of them owned the property as tenants by the entirety. Some of the changes were made with permission of the plaintiff’s deceased husband. All were made in full view and in the presence of the then joint owners; and no objection or criticism was raised.
“The Court is then of the opinion that some of the damages complained of was work requested by one of the then owners of the property. As to the rise in the water level after the culvert was placed in, the preponderance of the evidence does not show that the water levels over Plaintiff’s property, after heavy rain, was materially changed.
“It is not enough to prove that after one act occurred (phosphate ore removal) another happened (spring dried up— water became muddy) and that the proximity of the two acts (a few hundred feet) is the causal connection from which damages may be assessed. The Plaintiff must show the causal connection between these acts before a court may assess damages against defendants.
“Wherefore, this action against each and all the defendants and upon all counts is hereby dismissed.”

Plaintiff appealed and assigned as error the action of the Trial Court in:

(1)holding that the plaintiff was barred from recovery from the changes and alterations in the road because the plaintiff’s husband gave permission for the changes to be made, and they were made in the presence of both the plaintiff and her husband without objection or criticism;
(2) holding that the flooding of plaintiff’s property was not substantially or materially increased because of the defendant’s work on the road;
(3) holding that there was no causal connection between the mining done by the defendant and the damage to plaintiff’s well and spring; and,
(4) disallowing evidence that the damage to plaintiff’s property from defendant’s action amounted to thirty to forty percent of its value.

The entire record in this case has been reviewed de novo as required by T.C.A. 27-303, and it is our opinion that the evidence does not preponderate against the holding of the lower court. The case comes to us with a presumption of the correctness of the decree of the court below and unless the evidence preponderates against that holding, it must be affirmed. Edwards v. Edwards, 501 S.W.2d 283 (Tenn.App.1973); Davis v. Bank of Illinois, 561 S.W.2d 145 (Tenn.1978); Pettyjohn v. Brown Boveri Corporation, 63 Tenn.App. 546, 476 S.W.2d 268 (1971); Tipton County Board of Education v. Dennis, 561 S.W.2d 148 (Tenn.1978).

We find that the Chancellor did not specifically hold as alleged by plaintiff in her first assignment of error. He did find that some of the work complained of was done at the request of or with the permission of plaintiff’s deceased husband; that all such work was done in the full view and presence of both joint owners; and that no objection or criticism was raised. The proof in the record clearly supports these findings.

The second assignment of error relates to the holding of the Chancellor with respect to the affect on plaintiff’s property resulting from the changes and alterations in the road. The Chancellor found that the preponderance of the evidence failed to show that the water level on plaintiff’s property after heavy rain was materially changed. It is apparent that for many years the property of the plaintiff had been adversely affected by the overflow of Dunlap Creek during periods of heavy rainfall and that at such times the excess water ran off plaintiff’s property by flowing along Dunlap Creek in a northerly direction under and/or over the wooden bridge on the secondary road bounding plaintiff’s property on the north.

The proof shows that W. M. Coleman, a magistrate of Hickman County, was instrumental in making arrangements for the alterations in the road, and that C. W. Garner, Road Superintendent of Hickman County, participated in the alterations to the extent of furnishing the galvanized pipe six feet in diameter which was used to replace the wooden bridge. County employees delivered and unloaded the pipe which was in two sections, bolted the two sections together and fortified the pipe with struts. Thereafter it was installed by M. C. West Construction Company in connection with the other road work done by that company. It is undisputed that the road is a public road which was generally maintained by the county both before and after the alterations.

While we concur in the finding of the Chancellor to the effect that the preponderance of the evidence did not show that the water level on plaintiff’s property after heavy rainfall was materially changed, we find there was competent proof that since the wooden bridge was replaced by the galvanized pipe, the water at times of heavy rainfall backs up in greater quantities on the property of plaintiff. This occurs because the water cannot escape as fast through the galvanized pipe as it previously had done before the bridge was removed and the pipe installed. The only reasonable conclusion to be drawn from all the proof is that the galvanized pipe was not large enough in diameter to accommodate the quantity of water which flows through it during periods of heavy rainfall. There was no proof that the pipe was negligently installed; the problem, if any, results from the fact that the pipe selected, furnished, and delivered by the county was too small. It is a well settled rule in this state that a contractor constructing a public improvement for a public authority is not liable to a private property owner for the resulting damages where the contractor acts in accordance with the public authority’s orders and is not itself guilty of negligence in the manner in which it does the work. Wood v. Foster & Creighton Co., 191 Tenn. 478, 235 S.W.2d 1 (1950). See also Knoxville v. Harth and Knoxville v. Galbraith, 105 Tenn. 436, 58 S.W. 650 (1900); City of Knoxville v. Hunt, 156 Tenn. 7, 299 S.W. 789 (1927); and City of Knoxville v. Phillips, 162 Tenn. 328, 36 S.W.2d 434 (1931).

In her third assignment of error plaintiff insists that the Trial Court erred in holding that she failed to establish a causal connection between mining done by the defendants and the alleged damage to her wells and spring. We find no proof in the record establishing or tending to establish a causal connection between the mining operation of the defendants and the fact that plaintiff’s wells became muddy and her spring dried up. Plaintiff insists that the fact that these events occurred after the mining operation had begun constituted circumstantial evidence sufficient to support a judgment for damages against the defendant. We are unable to find in the record the necessary connection between the proven facts and the results claimed to justify an inference of responsibility. The rule is universal that no recovery can be had if the evidence leaves it to conjecture which of two probable causes resulted in the injury, where the defendant was liable for only one of them. Tennessee Electric Power Co. v. Van Dodson, 14 Tenn.App. 54 (1931). See also Brown v. Hudson, 50 Tenn.App. 658, 363 S.W.2d 505 (1962).

The fourth assignment of error is directed to the action of the Trial Court in refusing to consider the opinion of an expert witness to the effect that the value of the plaintiff’s property had been decreased by thirty to forty percent when he testified that he was unable" to express an opinion as to the value of the property prior to the commencement of mining operations and road alterations. We find that the Chancellor did not abuse his discretion in refusing to consider the opinion of the expert under these circumstances, which opinion was rendered immaterial upon a finding of no liability on the part of the defendants.

Accordingly, the four assignments of error are overruled and the judgment of the Trial Court is affirmed in all respects. The costs of the cause are assessed against the appellant and the sureties on her appeal bond.

TODD and DROWOTA, JJ., concur.


author: DROWOTA, Judge.

text:
    Carmen CROWE and husband Phillip Crowe, Plaintiffs-Appellants, v. JOHN W. HARTON MEMORIAL HOSPITAL et al., Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    Jan. 5, 1979.
    Certiorari Denied by Supreme Court April 9, 1979.

      Buddy D. Perry, Chattin & Perry, Winchester, Robert J. Shockey, Shockey, Boehm & Pinchak, Chattanooga, for plaintiffs-appellants.
    James H. Henry, Henry & McCord, Sam Sawyer, Tullahoma, Kenneth R. Herrell, Asst. Atty. Gen., Nashville, for defendant-appellee.
   OPINION

DROWOTA, Judge.

This suit arises from an action for damages for medical malpractice. The defendant hospital admitted liability, but asserted that its liability was limited in amount to $20,000.00 by the Tennessee Governmental Tort Liability Act, T.C.A. §§ 23-3301 et seq. Accordingly, the defendant moved for partial summary judgment. The trial court granted the motion, and the plaintiff appeals, alleging that the Tennessee Governmental Tort Liability Act contravenes the due process and equal protection clauses of fourteenth amendment of the United States Constitution and article 1, sections 8 and 17, of the Constitution of Tennessee.

On June 18, 1977, Carmen Crowe was admitted to the John W: Hartón Memorial Hospital. While Mrs. Crowe was in the hospital’s care, an employee-nurse erroneously administered a wrong medication, the administration of which caused injury to Mrs. Crowe. She brought suit against the hospital and Charles W. Marsh, Jr., the physician allegedly in charge of the operating room at the time of injury, for damages resulting from the nurse’s negligence. Mrs. Crowe’s husband, Phillip, also brought suit for medical expenses sustained and for loss of consortium. A voluntary non-suit was subsequently taken as to Dr. Marsh, and the hospital, while admitting liability, asserted that as an instrumentality of the City of Tullahoma, its liability is limited in amount by the Tennessee Governmental Tort Liability Act.

I.

Article 1, section 17 of the Tennessee Constitution states:

That all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay. Suits may be brought against the State in such manner and in such courts as the Legislature may by law direct.

Although the appellants apparently rely upon the first sentence of this section, it is the second which is determinative in this case. It has been interpreted as a grant of sovereign immunity to the State, and, accordingly, no suit against the State may be sustained absent express authorization from the Legislature. E. g., Coffman v. City of Pulaski, 220 Tenn. 642, 422 S.W.2d 429 (1967). Even where authorization exists, suits may only be brought in those courts and under those conditions specified by the Legislature, see Long v. City of Knoxville, 62 Tenn.App. 665, 467 S.W.2d 309 (1971), including time limits for filing suit, Tennessee Electric Power Co. v. Fayetteville, 173 Tenn. 111, 114 S.W.2d 811 (1938) (20 day filing requirement held constitutional), and damage limitations. Although municipalities do not fall within the aegis of the sovereign immunity doctrine if they are acting in a proprietary capacity, see Williams v. Morristown, 32 Tenn.App. 274, 222 S.W.2d 607 (1949), they are considered arms of the State in the exercise of their governmental functions, and, hence, are immune from suit. Scates v. Board of Commissioners, 196 Tenn. 274, 265 S.W.2d 563 (1954).

The doctrine of municipal sovereign immunity has been strongly criticized, and at least 27 states have eliminated it either by legislative or judicial action. See Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973) (well-reasoned and exhaustive treatise against municipal sovereign immunity). The doctrine has also been the subject of scathing attack in this State, Cooper v. Rutherford County, 531 S.W.2d 783, 785-92 (Tenn.1975) (Henry, J., dissenting), but neither the Supreme Court nor the Legislature has moved to abrogate the doctrine. Thus, although it is not clear how the concept of sovereign immunity was extended to Tennessee municipalities, see id., it has been firmly fixed in the law of this State for over 100 years; it is not the province of this Court to extinguish the doctrine. See Scates v. Board of Commissioners, 265 S.W.2d at 567 (eradication of sovereign immunity is in the sphere of the Legislature, not the courts).

Insofar as the Tennessee Governmental Tort Liability Act extends immunity from suit to municipalities acting in their governmental capacities, it merely codifies existing constitutional doctrine, which is the “law of the land.” Hence, the appellant’s contention that the Act works a deprivation of property in controvention of article 1, section 8 of the Constitution is groundless; that section expressly permits a person to be “deprived of his . property” if such deprivation is pursuant to a judgment of his peers or the law of the land.

As discussed above, the key determinant of constitutional immunity is whether the activity giving rise to suit is of a governmental or proprietary nature. This rule is, however, much easier in the formulation than the application. The distinction between the two types of activity has never been clearly enunciated by the courts of this State. As this Court succinctly opined in Williams v. Morristown, 222 S.W.2d at 610, “To define specifically the terms ‘governmental capacity’ and ‘proprietary capacity’ is impossible.” In the context of a municipal water system, the Williams court used a test based on the “profit” orientation of the activity, suggesting that activities conducted on a commercial basis for revenue are proprietary, but that enterprises funded from the public coffers are governmental. A strict “user charge”—public fund distinction was impliedly rejected in McMahon v. Baroness Erlanger Hospital, 43 Tenn.App. 128, 306 S.W.2d 41 (1957), however. In that case, whose facts are substantially similar to those in the case at bar, 86% of the defendant hospital’s operating budg.et was derived from patient fees. Nonetheless, the court found the operation of the hospital to be a governmental exercise, using as a test the motives of the governmental entities involved: the intent to provide for the general welfare (governmental activity) versus the intent to raise revenues (proprietary activity). In reaching its decision the court considered the following factors: trustees serving without pay, the actual appropriation of tax revenues to support the operation of the hospital, the substantial number of charity patients cared for, and the reduced rates charged to persons of lower incomes.

A close reading of McMahon reveals that the governmental-proprietary test is actually two-tiered. The first tier examines the activity giving rise to suit to determine whether it has as its basis a traditional governmental function. The McMahon court apparently made the determination that the operation of a hospital is in furtherance of a traditional governmental function (provision for the public health) without expressly so stating. See 43 Tenn. App. at 130, 306 S.W.2d 41. The second part of the test looks at the operation of the specific enterprise involved in the suit to determine whether its primary purpose is to promote the general welfare of the municipality’s citizens.

The first tier is a question of law, the second a question of fact. While the answer to the second dictates the outcome of the case, the answer to the first determines the burden of proof. If an activity is found to constitute a traditional governmental function, a presumption arises in favor of the municipality. If, on the other hand, an activity is found not to be a traditional function of government, the municipality must bear the burden of the factual issues. A “traditional governmental function” is one which is able to be adequately performed only by government, is traditionally expected to be performed by government, or is required to be performed by the command of the Legislature or the constitution.

This Court affirms the McMahon court’s conclusion that the operation of a municipal hospital is a traditional governmental function and finds that the factors used by that court are proper indices of a municipality’s motives.

If a municipal activity is found to constitute a proprietary, rather than a governmental function, the municipality is not protected from suit by article 1, section 17. See, e. g., Williams v. Morristown, supra. The Tennessee Governmental Tort Liability Act, however, purports to apply to municipalities in the exercise of their proprietary, as well as their governmental, functions. T.C.A. § 23-3307. As discussed above the application of the act to governmental functions merely echoes constitutional doctrine, and, in that sense, the Act is an abrogation of sovereign immunity within the damage limits it sets. To the extent the Act covers proprietary functions, on the other hand, it is not an abrogation of immunity, but is an extension of immunity in an area where it otherwise does not exist. The issue, therefore, is whether the Legislature may, by statute, grant, immunity from suit to municipalities.

The Legislature possesses unlimited power to enact laws except as specifically limited by the Constitution. Dennis v. Sears, Roebuck & Co., 223 Tenn. 415, 446 S.W.2d 260 (1969). There is no express constitutional prohibition against the extension of immunity to municipalities operating in their proprietary, as well as their governmental, capacities. The traditional rationale for establishing a special category of immunity for municipalities exercising their governmental functions include that the city does not profit from the exercise of its governmental functions, Howard v. City of Worcester, 153 Mass. 426, 27 N.E. 11 (1891), that the city cannot properly conduct government if it must utilize its tax revenues to compensate for the torts of its agents, and that it is unreasonable to hold the city liable for the torts committed by its agents in the performance of state-imposed duties, Boise Development Co. v. Boise City, 30 Idaho 675, 167 P. 1032, 1034 (1917).

The Legislature could reasonably find that these, or similar, concerns compel the extension of immunity here involved. Moreover, as Justice Henry pointed out in Cooper v. Rutherford County, supra, the specific distinction between governmental and proprietary functions has eluded the Tennessee courts and has been a source of inconsistent decisions in this State; by extending immunity to municipalities in the exercise of all functions, the Legislature has accorded a greater measure of certainty to this confused area of the law. Accordingly we find the provisions of the Tennessee Governmental Tort Liability Act which extend immunity to municipalities operating in their proprietary capacities to be a valid legislative enactment.

II.

Since there is no suspect class or fundamental right involved in this case, the federal constitutional question is whether the State of Tennessee has a rational basis for waiving the sovereign immunity of its municipalities. It requires little analysis to ascertain that the answer is in the affirmative. The appellants apparently labor under the misapprehension that the issue is whether the State has a rational basis for according immunity. Insofar as their injuries arose from the exercise of a governmental function, such a posture ignores the constitutional doctrine at work in this State. Thus, if the Tennessee Governmental Tort Liability Act were to be declared unconstitutional, the appellants would be left without any remedy, however limited in amount their current one might be. Even if the operation of this hospital were of a proprietary nature, the Legislature has a rational basis for the enactment for purposes of the federal constitution (ex. — city cannot properly conduct government if it must use its tax revenues to compensate for the torts of its agents).

III.

This suit is not governed by the Medical Malpractice Act as contended by the appellants. The trial judge properly found the Tennessee Governmental Tort Liability Act to be the applicable law, since by its terms it is the exclusive source of remedy in this case:

Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of said governmental entities wherein said governmental entities are engaged in the exercise and discharge of any of their functions . ...

T.C.A. § 23-3307. “Governmental entities” include municipalities and their instrumen-talities. Id. § 23-3302(1).

For the reasons stated herein, the order of the trial court is affirmed.

Affirmed.

SHRIVER, P. J., and TODD, J., concur.


author: RUSSELL, Presiding Judge.

text:
    George Bennie WOODSON, Jr., Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 7, 1978.
    Certiorari Denied by Supreme Court March 5, 1979.

      Larry D. Woods and Robert C. Watson, Nashville, for appellant.
    William M. Leech, Jr., Atty. Gen., William W. Hunt, III, Asst. Atty. Gen., Nashville, Columbus Wade Bobo, Asst. Dist. Atty. Gen., Clarksville, for appellee.
   RUSSELL, Presiding Judge.

OPINION

The appellant, George Bennie Woodson, Jr., was tried by a Montgomery County jury and convicted of bribery. He was sentenced to a term in the State Penitentiary of two to three years. Upon the denial of his motion for a new trial, the appellant has perfected an appeal to this Court.

The facts show that the appellant, a detective sergeant for the Clarksville Police Department, aided in the apprehension and arrest of one Israel Ramos Rodrequez on a burglary case. Rodrequez testified that the appellant offered to “fix” the case for Ro-drequez in exchange for a van, estimated to be worth five to six thousand dollars. This allegation was documented by three tapes of conversation between Rodrequez and Woodson.

The appellant insisted that he agreed to help Rodrequez in exchange for his aid on a case, i. e., Rodrequez would act as an informant; that he wanted to purchase the van, but that he would swap his present car and assume the payment of notes in exchange for the van; and that any references to a “fix” on the tape were merely allusions to straightening out the title to the van.

Among appellant’s assignments of error are contentions that the prosecutor made several prejudicial remarks during closing argument and cross-examination; that the court erroneously excluded any evidence concerning entrapment as a defense; that the court allowed the jury to rehear evidence and reexamine an exhibit after they had retired for deliberation; and that the judge failed to examine the jurors concerning prejudicial pretrial publicity for purposes of a possible change of venue. The record reveals that not a single objection was raised during the course of the trial in connection with any of these “errors”.

It is well-established in Tennessee that such alleged errors, to which no objections were made in the court below, cannot properly be raised for the first time on appeal. Ezell v. State, 220 Tenn. 11, 413 S.W.2d 678 (1967); Webb v. State, 173 Tenn. 518, 121 S.W.2d 550 (1938); Patty v. State, 556 S.W.2d 776 (Tenn.Cr.App.1977); Hester v. State, 2 Tenn.Cr.App. 11, 450 S.W.2d 609 (1969); State ex rel. Carroll v. Henderson, 1 Tenn.Cr.App. 427, 443 S.W.2d 689 (1969).

We find that some of the prosecutor’s remarks in argument were not strictly proper, but were not objected to; that the record does not reveal any ruling by the trial court or arguments by counsel on entrapment, and so there was no error in that respect by the trial judge; that an instruction concerning entrapment was not justified by the evidence and was properly refused, Shadden v. State, 488 S.W.2d 54 (Tenn.Cr.App.1972), cert. denied 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199 (1975); that the requested rehearing by the jury of certain evidence (tape recordings) was conducted in open court in the presence of the judge and counsel without objection (see also Van Huss v. Rainbolt, 42 Tenn. 139 (1865)); and that the voir dire in this case was properly supervised by the trial court. The assignments are overruled.

The appellant next contends that the conviction is void because of a systematic and purposeful exclusion of blacks from the jury lists in Montgomery County and that likewise there is discrimination in the selection of grand jury foremen. These challenges were first raised in the motion for a new trial. Unless a defendant objects to the venire before he pleads to the indictment, he cannot thereafter avail himself of a claim that the venire was improperly composed. Ellis v. State, 92 Tenn. 85, 20 S.W. 500 (1892); Turner v. State, 89 Tenn. 547, 15 S.W. 838 (1891); McTigue v. State, 63 Tenn. 313 (1874); State v. Cole, 28 Tenn. 626 (1849); Lillard v. State, 528 S.W.2d 207 (Tenn.Cr.App.1975); State ex rel. Henderson v. Russell, 3 Tenn.Cr.App. 204, 459 S.W.2d 176 (1970); Johnson v. State, 3 Tenn.Cr.App. 17, 456 S.W.2d 864 (1970); Burt v. State, 2 Tenn.Cr.App. 408, 454 S.W .2d 182 (1970); State ex rel. Lawrence v. Henderson, 1 Tenn.Cr.App. 119, 433 S.W.2d 96 (1968). Any error, therefore, is waived and the assignments are overruled. See Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

The appellant now claims that he did not knowingly waive his objections to the venire. It is apparent from the record that the appellant retained and was represented by competent counsel during the trial. Although he has retained different counsel on appeal, he may not now repudiate the tactics and decisions of his former attorney. “Considering the fact of competent counsel, knowledgeable in the ways of criminal procedure, and cognizant of the rights of those he is appointed to defend we can make no other assumption than that the election of counsel to by-pass an objection to the composition of the grand jury in this case was a deliberate strategic choice . . . ”. Holiday v. State, 519 S.W.2d 597 (Tenn.Cr.App.1973); Holiday v. State, 512 S.W.2d 953 (Tenn.Cr.App.1972). The appellant may not now be heard to challenge that decision. The assignment is overruled.

The appellant also urges us to remand the case to the trial court for a new hearing on the motion for a new trial, at which hearing the appellant would be allowed to fully develop the facts pertaining to his racial challenge of the jury venire. As we have hereinabove determined that any objection to the jury has been waived, another hearing below concerning that issue would not be in order. Accordingly, the assignment is overruled.

The appellant next contends that the bribery statute under which he was indicted, Tenn.Code Ann. § 39-804, is unconstitutional and void for vagueness in that it fails to specify intent. The appellant claims that detectives and police officers often must enter into agreements with criminals and informants as part of the law enforcement process and that, as a result, they may be in technical violation of the bribery statute. However, the statute explicitly provides punishment for an officer who “corruptly accepts, or agrees to accept, any gift, gratuity, or thing of value . .” in violation of the statute, (emphasis supplied.) Agreements with criminals and informants as part of the law enforcement process are consistent with official duty and for the public good. They are, therefore, not corrupt and would not fall within the prohibition of the statute. While Tenn. Code Ann. § 39-804 is flexible, it is not vague, and we do not find it constitutionally infirm. The assignment is overruled.

The appellant further contends that the indictment was insufficient in that it failed to allege the requisite intent and adequate notice of the nature of the offense. However, this issue was first raised in the motion for a new trial. Defects in the indictment are waived if not raised prior to a plea to the merits. Wade v. State, 529 S.W.2d 739 (Tenn.Cr.App.1975). In any event, the indictment tracks the statute, Tenn.Code Ann. § 39-804, which we have hereinabove found constitutionally sound. The assignment is overruled.

The appellant next contends that he was denied the right to a speedy trial. Woodson was arrested on April 15,1977 and indicted on September 28, 1977. The trial commenced on December 13, less than eight months after the appellant’s arrest and less than three months after his indictment.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court established four criteria to be utilized in the determination of whether the defendant’s rights to a speedy trial were violated: (1) length of delay, (2) reason for delay, (3) the defendant’s assertion of his rights to a speedy trial, and (4) prejudice to the defendant. Our Supreme Court adopted these standards in State v. Bishop, 493 S.W.2d 81 (Tenn.1973). We do not find in this case the “needless, vexatious, or oppressive” delay which indicates the denial of a speedy trial. Smith v. State, 512 S.W.2d 619 (Tenn.Cr.App.1974); Jernigan v. State, 4 Tenn.Cr.App. 614, 475 S.W.2d 184 (1971). Likewise, the record does not indicate any reason for the delay other than an overcrowded docket. The Sixth Circuit Court of Appeals noted in United States v. LaBorde, 496 F.2d 965 (6th Cir. 1974), that when “the reason for the delay is the ‘more neutral reason’ of an overcrowded docket, the weight to be attached to the delay is minimal.” We note also that there is no indication in the record that the appellant ever asserted his right to a speedy trial, a fact which strongly militates against any finding of a denial of speedy trial rights. Barker v. Wingo, supra; United States v. Reynolds, 489 F.2d 4 (6th Cir. 1973). Finally, we do not find that the appellant was prejudiced by a defense witnesses’ unavailability at the trial due to the delay, as contended by the appellant. The appellant admits that the witnesses’ testimony would have constituted impeachment testimony only and that the defense failed to preserve or provide for the witnesses’ testimony. Utilizing the balancing test provided in Barker v. Wingo, supra, and State v. Bishop, supra, and finding that all four factors in the test militate against the denial of the appellant’s rights to a speedy trial, we find the assignment without merit and it is overruled.

The appellant contends that the trial court erred in admitting the tape recordings and transcripts because the recordings were procured in violation of state and federal law. One of the three recordings was taped by Rodrequez himself by use of a small recorder concealed inside his van; the other two were the result of telephonic taps on calls placed by Rodrequez from the District Attorney General’s office.

Obviously, the first taping, initiated by Rodrequez himself, was with Rodrequez’s consent. Rodrequez testified that the other two tapes were made with his consent, and the record contains nothing to dispute this.

The Crime Control Act of 1968,18 U.S.C. §§ 2510-2520, specifically exempts from its prohibitions recordings made with the consent of one party to the conversation. 18 U.S.C. § 2511(2)(c) and (d). See also Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957). Moreover, under Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), Rodrequez could testify to any conversations with the appellant. The mere fact that the conversations were taped should have no effect. Indeed, as we have noted in a similar case, Clariday v. State, 552 S.W.2d 759 (Tenn.Cr.App.1976), the rationale of Justice White in United States v. White, 401 U.S. 745, 91 S.Ct. 1122 (1971), is particularly appropriate:

“If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case.”

401 U.S. 745 at 752, 91 S.Ct. 1122 at 1126. We thus find no federal law violation.

State law violations are also claimed. The appellant contends that the prohibitions of Tenn.Code Ann. § 39-4533 (which makes wiretapping a felony) and § 65-2117 (which prohibits the wiretapping of telephones without the consent of the owner of the line or his agent) have been transgressed. However, this Court has specifically held that taken together, those statutes authorize by implication, the recording of a telephone conversation where one party to the conversation consents to the recording. Stroup v. State, 552 S.W.2d 418 (Tenn.Cr.App.1977). We find, therefore, no violation of state law. This assignment of error is, accordingly, overruled.

The appellant claims that the tape recordings and transcripts were not properly admitted into evidence. The record, however, indicates that all were properly identified and authenticated. The assignment is overruled.

Finally, the appellant challenges the sufficiency of the evidence. The appellate courts of this state are not free to evaluate the evidence as they please. State v. Wilson, 556 S.W.2d 232 (Tenn.1977); State v. Johnson, 541 S.W.2d 417 (Tenn.1976); State v. Grace, 493 S.W.2d 474 (Tenn.1973). It is not the function of an appellate court to re-weigh the evidence adduced at a criminal trial. State v. Heath, 560 S.W.2d 627 (Tenn.1978). The guilty verdict of the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves any conflict in the testimony in favor of the State. State v. Johnson, supra; State v. Bullington, 532 S.W.2d 556 (Tenn.1976); State v. Townsend, 525 S.W.2d 842 (Tenn.1975); Sikes v. State, 524 S.W.2d 483 (Tenn.1975). The appellant’s conviction will not be disturbed oh appeal unless he overcomes the presumption of guilt and proves that the evidence preponderates against the guilty verdict and in favor of his innocence. State v. Thompson, 549 S.W.2d 943 (Tenn.1977); State v. Sneed, 537 S.W.2d 699 (Tenn.1976). We find, after reviewing the entire record and all the pertinent arguments, that the appellant here has not met that burden.

As a part of this assignment, the appellant contends that the offense charged in the indictment was not proven, since it was impossible for the appellant to have the case against Rodrequez dismissed, inasmuch as he was not the prosecutor in the case. However, a corrupt act done under color of office, although beyond the authority of the police officer, constitutes a violation of the bribery statute. Wells v. State, 174 Tenn. 552, 129 S.W.2d 203 (1939).

For the foregoing reasons, the judgment of the trial court is affirmed.

DAUGHTREY and TATUM, JJ., concur.


author: O’BRIEN, Judge.

text:
    James E. FARRIS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 27, 1978
    Donald P. Harris, Franklin, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Richard S. Maxwell, Asst. Atty. Gen., Nashville, Victor S. Johnson, III, Asst. Dist. Atty. Gen., Nashville, for appellee.
   OPINION

O’BRIEN, Judge.

This is an appeal from denial of a petition for post-conviction relief.

Defendant was convicted in the Criminal Court of Davidson County for assault with the intent to commit robbery with a deadly weapon. He was sentenced to serve not less than ten (10) years nor more than fifteen years in the State Penitentiary. His conviction was appealed and affirmed by this court. On grant of certiorari by the Supreme Court the case was consolidated with those of two other defendants to resolve the validity of Section 2, Chapter 163 of the Public Acts of 1973, which appeared as the last paragraph of T.C.A. Sec. 40— 2707. This paragraph read then, and does now, as follows:

“It shall be the further duty of the trial judge charging jurors in cases of criminal prosecutions for felony offenses to charge the said jury as to the provisions of this section and as to the provisions of Sections 40-3612, 40-3613, 41-332 and 41-334, wherever applicable.”

The Supreme Court held Section 2 of Chapter 163 of the Public Acts of 1973 to be unconstitutional and void for the reasons set forth in their opinion. Farris v. State, 535 S.W.2d 608, (Tenn.1976). The sentences for the other two defendants were reduced to the statutory minimum for their respective offenses and the court affirmed the conviction of this defendant. This judgment was sustained on a petition to rehear.

In the case before us defendant says the trial court erred in dismissing his petition for post-conviction relief and assesses two reasons:

(1) It was error to hold this conviction was not void or voidable because of the abridgement of a State or federal constitutional right.
(2) It was error to hold the grounds for relief had been previously . determined.

In regard to the first assignment defendant bases his argument on several points: First he says under the provisions of T.C.A. Sec. 40-3805 he is entitled to relief when either his conviction or sentence is void or voidable because of the abridgement of a constitutional right. It is his view that the trial court’s order referred only to his conviction in overruling his petition whereas his complaint is that his sentence is void or voidable because the jury instructions required by the statute are so impermissibly vague and impossible to apply they amount to a constitutional abridgement. He also says the Supreme Court decision in Adams v. State, 547 S.W.2d 553, (Tenn.1977), has abrogated the judgment in his case and he is entitled to have the matter reconsidered.

There is no merit to the first proposition raised by petitioner. In Farris, supra, the Supreme Court specifically said:

“The error which we find in the charge to the jury bears only upon the question of punishment and has no relation to the jury’s finding of guilt or innocence.”

Nor, can we concur in defendant’s second averment. He says the issue of the constitutionality of the charge required in the second paragraph of T.C.A. Sec. 40-2707 has not been determined by a majority of the Supreme Court. In the Farris case two of the justices found Section 2 of Chapter 163 of the Public Acts of 1973 to be impermissibly vague and impossible to apply. A third justice found the charge unconstitutional as an invasion of the province of the judiciary by the legislature, and a clear violation of the separation of powers doctrine. The lead opinion dwelt at length on the subject of vagueness and held:

“It is obviously impossible for any living human being to compute, prior to verdict, how much time any prisoner will serve and yet this is precisely what trial juries are called upon to do. Otherwise, there is no conceivable point to charging the jury as to these matters.”

As opposed to this construction and interpretation, two of the justices dissenting in Farris stated this view:

“With respect to the further argument contained in the majority opinion that the • provisions of Section 2 of Chapter 163 of the Public Acts of 1973 are unconstitutionally vague and impossible of application, I simply cannot agree. There is absolutely no evidence in any of the records before this Court that the jury had the slightest difficulty in understanding or applying the statutes in question, and it is clear from listening to the legislative debates on this Act that the General Assembly felt it necessary and proper for jurors to be allowed to have a general understanding of parole procedures.”

The argument (made in the trial court) that the statute is a violation of judicial functions by the legislature must also fail. Only one justice reached this conclusion in the Farris decision. On the other hand the two dissenting judges said:

“ . . . , Chapter 163 of the Public Acts of 1973 is consistent with the judicial history of this State, and simply represents a policy decision by the General Assembly contrary to that which had previously been made by the courts. So long as the jurors are the judges of the law as well as the facts, and so long as the jury has the function of fixing the sentence of one accused of crime, . . . , it is within the legislative prerogative to authorize the jurors to consider parole eligibility.”

The case for the validity of Adams v. State, supra, overruling the Farris decision as it applies to Farris, bears some further scrutiny. As we read the Adams case it appears that the assignment of error made there applied itself to the last paragraph of T.C.A. Sec. 40-2707 whereas, as pointed out in Adams, the assignment in Farris did not. The holding in the Adams case was based on the fact that the conviction had not become final and the assignment of error made in the trial court, the Court of Criminal Appeals, and the Supreme Court was sufficient to enable the petitioner to rely on the rule. The court went on to discuss court rules relative to specificity in assignments and then invoked the provisions of T.C.A. Sec. 40-3409 as an additional reason for their consideration of the assignment. T.C.A. Sec. 40-3409 provides in essence that no assignment of error is necessary in criminal cases and directs the court to render such judgment on the record as the law demands. It is difficult to reconcile the course taken in Adams with that followed in relation to Farris. Ordinarily this would be our function as an intermediate appellate court, but since this case relates to the defendant in whose case the decision was handed down it is not within our province to go beyond the ruling of the Supreme Court which has spoken twice on the issue as it relates to this defendant.

Petitioner also says it was error to hold that his grounds for relief had been previously determined. It seems clear the matter has been concluded, or previously determined, by the Supreme Court in its decision regarding this petitioner in the Farris case. Moreover, the statute, (T.C.A. Sec. 40-3812), goes beyond previous determination and also provides that a ground for relief may be “waived” if it is knowingly and understandingly by-passed in a court where it could have been presented. There is no evidence in the record to rebut the presumption that the grounds for relief were previously waived. See Arthur v. State, 483 S.W.2d 95, (Tenn.1972).

Other than the fact that jury sentencing is not a constitutional right, but a' statutory one, there is a curious corollary issue in this case. The flaw which the Supreme Court found in T.C.A. Sec. 40— 2707 was not one which affected individual constitutional rights but only applied to the manner of the enactment of the statute which rendered it invalid under the constitution. In Farris the Supreme Court found the second paragraph of T.C.A. Sec. 40— 2707 to be unconstitutional because of the defective title. It would thus appear that the 1974 Legislative Act codifying T.C.A. Sec. 40-2707 revalidated that law. McClel lan v. State, 199 Tenn. 60, 282 S.W.2d 631; Doughty v. Hammond, 207 Tenn. 545, 341 S.W.2d 713; Keaton v. State, 212 Tenn. 690, 372 S.W.2d 163; International Harvester Company v. Carr, 225 Tenn. 244, 466 S.W.2d 207; and Howard v. State, 569 S.W.2d 861, (Tenn.Cr.App.1978). Whether this raises a due process question as suggested on behalf of defendant is a matter not ripe for decision in this forum.

Defendant’s assignments must be overruled and the judgment of the trial court affirmed.

DUNCAN and DAUGHTREY, JJ., concur.


text:
    Hershel EDMONDSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 17, 1979.
    Robert E. Burch, Dickson, for appellant.
    Brooks McLemore, Jr., Atty. Gen., William O. Kelly, Asst. Atty. Gen., Nashville, James Kenneth Atkins, Asst. Dist. Atty. Gen., Charlotte, for appellee.
   OPINION

O’BRIEN, Judge.

Defendant was brought to trial on a two count indictment charging sodomy, and an attempt to commit sodomy. The State elected to proceed on the second count of the indictment. Defendant was found guilty by the jury. Judgment was entered on the verdict fixing punishment at ninety (90) days in the County Jail in addition to a fine of Twenty-Five Dollars ($25.00).

On this appeal defendant makes two assignments of error, averring:

(1) The Court erred in declaring a witness to be hostile and permitting the State to cross-examine him and impeach his testimony by introduction of a prior inconsistent statement.
(2) That the evidence was insufficient to sustain a verdict of guilt because an overt act constituting an attempt had not been proven.

The first witness to testify was the other participant in the offense, a thirteen-year-old child, who was twelve years of age at the time the incident occurred. It was immediately apparent that this witness purposed to deny the occurrence of any of the events necessary to make out the offense. The State’s attorney proceeded to initiate a cross-examination in reference to an inconsistent statement previously made by the witness to police officers. Upon objection by defense counsel the attorney general stated it was his intent to impeach the witness as a hostile witness and because he was surprised by the nature of the testimony. The jury was excused and an extensive hearing initiated in the course of which the witness admitted making the statement in which he had incriminated the defendant, but denied its truth. His insistence was that he had made the statement because he, was “scared” of the police and of the juvenile judge before whom he had previously appeared, who, according to his testimony, told him “he would send me up” if he came before the juvenile court again. In the course of his testimony he stated that he had informed the district attorney on the day before that the information contained in his pretrial statement was untrue. The trial judge ruled that State’s counsel might proceed to cross-examine the witness in an attempt to impeach his testimony because of the hostility demonstrated by the witness and his reluctance to testify. He stated there were elements of both surprise and hostility in the evidence which he had heard.

When the jury returned State’s counsel began examining him in reference to the prior inconsistent statement. The witness again admitted giving the statement to the police officers but denied the truth of its contents. The cross-examination continued by the use of pointed and leading questions in the course of which the witness admitted making the statement, disavowed its contents, and alternatively testified to facts which confirmed the statement and detailed the events which occurred prior to the arrival of the police and the apprehension of defendant.

Defendant contends in support of his first assignment that in order to impeach ones own witness who has become hostile the element of surprise must also exist. Various authorities are cited to sustain this opinion including some text book as well as case law in this State. The law is not entirely clear on the subject. King v. State, 187 Tenn. 431, 215 S.W.2d 813 (1948), cited by defendant, is precisely on point on the issues. In that case our Supreme Court said:

“Under the peculiar facts of this case, bearing in mind that the defendant and his daughter are in pari delicto, but that nevertheless, it was necessary for the State to put the daughter on the stand to establish the guilt of the defendant, we think the correct rule is thus stated:
‘The general rule obtains" in criminal as well as civil cases, that a party cannot impeach his own witness, but this is subject to the exception that where a party is compelled to call an indispensable witness, or a witness that is hostile taking the party by surprise, such witness may be impeached by the party calling him. This exception is equally applicable to the prosecution, because the state must bring forward all witnesses obtainable, and it would be unfair to the prosecution where it could not contradict an unexpectedly hostile witness. In such case the hostility may be shown by the witness himself or otherwise, and he then may be examined as to his contradictory statements; but the impeachment of one's own witness is limited to those cases where his testimony is in direct contradiction to his prior statements, and he cannot be impeached where he is merely reluctant to give testimony or unless the testimony is actually prejudicial.’ Wharton’s Criminal Evidence, Vol. 1, 10th Ed., Sec. 484a, p. 1002.”

It is fundamental that in a case where an indispensable witness is hostile, surprise is not an essential element to the right of impeachment. In Mays v. State, 495 S.W.2d 833 (Tenn.Cr.App.1972), in which two witnesses had repudiated earlier statements they were considered to be indispensable witnesses because the State depended entirely on their testimony to corroborate accomplices’ testimony. It was known beforehand that their testimony would be hostile.' In King v. State, supra, in identical circumstances to those we have here, it was necessary for the State to put a young woman on the stand to establish the guilt of her father who was charged with an incestual relationship. As in King, the young boy in this case was the only actual witness to the offense charged. Also, under the law, he was considered an accomplice. Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811 (1959); Boulton v. State, 214 Tenn. 94, 377 S.W.2d 936 (1964). Of course, his prior inconsistent statement cannot be accorded any value as substantive evidence, King v. State, supra, 81 Am.Jur.2d, Witnesses, Section 631. This being the law, there was no abuse of the trial court’s discretion in allowing the further cross-examination of the witness which brought out the actual testimony of the events surrounding the incident with which defendant is charged. We overrule the assignment.

It is defendant’s insistence that there was insufficient evidence to sustain the verdict of the jury because an overt act constituting an attempt to commit a felony was not shown by the State’s evidence.

The young participant in the criminal act with which defendant is charged testified to events which took place which certainly made out a case against defendant. There is ample evidence in the record to corroborate his testimony. The proof is that defendant took the twelve-year-old boy, after midnight, ostensibly to give him a ride home, and parked for between thirty minutes and an hour on a side road in an opposite direction from where he lived. When the police officers approached the car they observed two people rise up from the middle of the front seat. One person went to his left under the steering wheel and the other to the right on the passenger side of the vehicle. When defendant got out of the car his belt was undone, his trousers were unzipped and his shirttail was partially out. He first told the officers he had stopped to relieve himself and then amended his statement to say he was waiting for a girlfriend when the officer inquired why he was still there. The young boy’s clothing was disarranged and pulled awry. His belt was not buckled and his shirttail was partially out. Defendant’s tale that he was waiting for a girlfriend was denied in court by the person he had named. It is not the province of this court to substitute its own inference for those drawn by the jury from the evidence. We overrule the assignment.

The judgment of the trial court is affirmed.

DUNCAN and DAUGHTREY, JJ., concur.


author: TATUM, Judge.

text:
    Billy C. TINKER, Appellant, v. STATE of Tennessee, Aileene Love, Warden, Deberry Correction Institute.
    Court of Criminal Appeals of Tennessee.
    Feb. 2, 1979.
    W. Zane Daniel, Knoxville, for appellant.
    William M. Leech, Jr., Atty. Gen., John C. Zimmermann, Asst. Atty. Gen., Nashville, Raymond Shirley, Asst. Dist. Atty. Gen., Sevierville, Al Schmutzer, Jr., Dist. Atty. Gen., Sevierville, for appellee.
   OPINION

TATUM, Judge.

This is a post-conviction relief case in which the appellant, Billy C. Tinker, attacks the constitutionality of the trial judge’s subjecting him to a second sentence increasing the first sentence for the same offense. The State concedes that the double jeopardy clause of the United States Constitution and the Tennessee Constitution bars the augmentation of a judgment in a criminal case which increases the defendant’s original punishment. We also concur that this practice is unconstitutional.

The appellant, on July 6, 1977, entered guilty pleas in two drug cases, numbers 2714 and 2773. The trial judge entered a judgment in case number 2773 sentencing the appellant to a term of not less than two years nor more than five years in the State Penitentiary. The trial court reserved sentence and judgment in case number 2714 pending the termination of the appellant’s drug addiction therapy at Central State Hospital. Copies of the minute entries entered in these two cases were not made a part of the record. However, we glean that notation was made in the minutes that if the appellant successfully completed the drug rehabilitation program, the court intended at the time of the entry to sentence him to a term of not less than five years nor more than ten years in case number 2714; if he did not successfully complete the program, the court intended to sentence him to not less than seven years nor more than ten years. We emphasize that the minute entry with reference to case number 2714 was not a judgment as actual sentencing was deferred.

Subsequently, the trial judge apparently determined that the appellant did substantially complete the drug program; relying on his recollection, he sentenced the appellant to a term of not less than four years nor more than ten years in ease number 2714. After the sentence had been partially executed, the trial judge discovered he had inadvertently sentenced the appellant from four to ten years and ordered the appellant returned to court; the appellant was again sentenced in case number 2714 to a term of not less than five years nor more than ten years in accordance with the Judge’s original intention. Minute entries were made for both judgments and the second judgment was in correction of the first. The State concedes that the first judgment had been partly executed when augmented by the second.

At the outset, we note that the first judgment was not illegal as in State v. Burkhart, 566 S.W.2d 871 (Tenn.1978), nor was the second judgment entered for the correction of a clerical error.

The leading case on this proposition is from the Supreme Court of the United States in Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874) wherein a defendant was sentenced to confinement for one year and ordered to pay a $200.00 fine. The offense for which Lange was convicted was punishable by either confinement or a fine, but not both. Lange paid the fine after five days of incarceration; the trial court immediately resentenced him to confinement for one year and no fine.

The Lange court held that the practice of enhancing punishment by resentencing constituted double jeopardy and is constitutionally prohibited, saying:

If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offense, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment proposed in the same court, on the same facts, for the same statutory offense.
******
For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? Why is it that, having once been tried and found guilty, he can never be tried again for that offense? Manifestly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value? Is not its intent and its spirit in such a case as much violated as if a new trial had been had and, on a second conviction, a second punishment inflicted?
The argument seems to us irresistible and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.
Ex parte Lange, 85 U.S. (18 Wall.) 163, 167, 173, 21 L.Ed. 872, 876, 878 (1874)

In Chandler v. United States, 468 F.2d 834, 837 (5th Cir. 1972), the United States District Court had entered an amended judgment and commitment to conform the written judgment to the judge’s original intention. The Fifth Circuit reversed, saying:

“Admittedly, the Government is requesting only that a narrow hole be bored in the double jeopardy clause. We will not, however, allow deeply entrenched constitutional rights to be made subject to claims of ‘inadvertent error’ and we must plug up the hole, however small, left open by the trial court’s auger. We cannot allow even judicial remembrances of things past to dim the constitutional incandescence of the Fifth Amendment.”

In United States v. Sacco, 367 F.2d 368, 369 (2nd Cir. 1966), the defendant was sentenced to seven years under a charge carrying a maximum penalty of five years and was sentenced to five years under a charge carrying a maximum penalty of ten years, the sentences to run concurrently. The trial judge entered an order eight months later transposing the sentences, stating that the sentences were originally entered through inadvertence and error. The Second Circuit reversed and said:

“We are of the opinion that a judge should not be permitted to increase a sentence clearly and explicitly imposed, after the prisoner has begun to serve it, even though the judge later recollects that he had intended at the time to decree a longer sentence for a conviction on a particular count but did not do so because he had inadvertently confused it with another count. This is not the case of an error in reporting or a purely clerical error or a judicial mistake corrected the same day or the imposition of a sentence of less than a mandatory minimum or similar flaws which present quite different problems. The possibility of abuses inherent in broad judicial power to increase sentences outweighs the possibility of windfalls to a few prisoners.”

In Commonwealth v. Brown, 455 Pa. 274, 314 A.2d 506 (1974), the Supreme Court of Pennsylvania considered the constitutionality of the entry of an amended sentence which increased an original sentence from eight and one-half to ten years to a sentence of eight and one-half to twenty years. The court held this amending sentence unconstitutional as placing the defendant in double jeopardy, saying:

The present problem deals with the increase of an existing sentence, not with an increase over the original sentence following retrial as was the case in Pearce [North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)]. That distinction, however, is not significant here since both the United States Supreme Court and this Court have also held that a court is without power to increase an existing sentence, once the defendant has begun to serve that sentence. See Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873); Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971).
More important for our resolution of the instant case, however, is our decision in Commonwealth v. Allen, [443 Pa. 96, 277 A.2d 803 (1971)] supra, wherein we held, inter alia, that even an increase in sentence which is merely designed to correct an inadvertent judicial mistake must be scrutinized as carefully as an increase which results from a reconsideration of sentencing factors or from a judicial change of mind. The Commonwealth would dispute this reading of Allen, however, since it feels that an increased sentence to correct a “slip of the tongue” was there approved. While it is true that we noted factors which negated a “slip of the tongue” theory in that case, we never indicated that the establishment of such a “slip” would have altered our result. On the contrary, we there expressed our “agreement with those jurisdictions holding there is no exception to Lange in the situation where the increase is allegedly designed to reflect the judge’s true intent. . . . ” 443 Pa. at 104, 277 A.2d at 807. We then concluded our discussion with the following language:
“Lastly, we are of the opinion that such alleged inadvertance [sic] cannot be tolerated as a matter of public policy. As best stated by the Second Circuit, ‘[t]he possibility of abuses inherent in broad judicial power to increase sentences outweighs the possibility of windfalls to a few prisoners.’ . .”

In light of the above principles, we must hold that the modification of the sentence in the present case occurring after the appellant had partly executed the original sentence, violated the Federal and State constitutional guarantees against double jeopardy.

Needless to say, judgments may not be corrected or amended pursuant to T.C.A. § 20-1512 when such corrections or amendments violate a constitutional right.

The judgment of the trial court denying post conviction relief is reversed. The case is remanded to the Criminal Court of Sevier County and that court is directed to enter judgment in case number 2714 sentencing the appellant to a term in the State Penitentiary of not less than four years nor more than ten years in conformity, with that court’s initial judgment.

DWYER and O’BRIEN, JJ., concur.