author: O’BRIEN, Judge.

text:
    Donnie WHEELER, Jr. and Johnny Lewis Carter, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Feb. 26, 1976.
    Certiorari Denied by Supreme Court July 26, 1976.

      Robert S. Peters, Winchester, for Wheeler.
    J. Harvey Cameron, South Pittsburg, for Carter.
    R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, J. William Pope, Jr., Dist. Atty. Gen., Pikeville, Robert J. Leiderman, Asst. Dist. Atty. Gen., Jasper, for defendant in error.
   O’BRIEN, Judge.

OPINION

This cause was originally heard at the September, 1974 term at Nashville. In an opinion filed on March 25th, 1975, a majority of this court found that the minutes of the trial court affirmatively indicated that the plaintiffs in error were convicted by a jury of 13 members. The case was reversed under the authority of Grooms et al. v. State, 221 Tenn. 243, 426 S.W.2d 176.

Certiorari was granted by the Supreme Court on August 25th, 1975, and pursuant to T.C.A. Sec. 16-452, as amended by Chapter 77, Sec. 1, Public Acts, 1975, the case was remanded to the trial court of Marion County to determine, as a factual issue, whether the alternate juror, Jerry Morrison, participated in the deliberations and verdict of the jury entered on August 31st, 1973. The Supreme Court ruled that on a determination of this issue the record and the ruling of the trial judge should be authenticated and certified to this court for review, whereupon the opinion of this court and the trial record should be certified to the Supreme Court for final determination of all issues in the case.

We now have before us the original record, together with the briefs and assignments of error of counsel, and the findings of fact and certification of record of the trial judge on the factual issue of whether the alternate juror participated in the deliberation and verdict of the jury entered in the case.

It is now clear that on conclusion of the first day of trial a female juror on the panel, Mrs. Charlsie Fitzgerald, was excused for good cause, and was replaced on the panel by the alternate juror, Jerry Morrison. The minutes of the trial court reciting the verdict and judgment are in error insofar as they indicate that the juror, Mrs. Charlsie Fitzgerald, participated in the deliberations and the verdict of the jury. We now proceed to the merits of the case.

The first two assignments for each defendant attack the preponderance and legal sufficiency of the evidence to sustain the jury verdict.

The home of Joe Ware in the Midway Community of South Pittsburg, Marion County, Tennessee, was entered on the night of April 2nd, 1973, by two men who severely beat Mr. and Mrs. Ware in the presence of other members of the family and escaped after stealing in excess of two thousand dollars ($2,000.00). A bullet was fired into the kitchen ceiling, another through a window in the bedroom, narrowly missing Mrs. Margaret White, a daughter of the Wares. A third shot was fired into the mattress on the bed in an apparent attempt to hit Mr. Ware who had crawled under the bed to escape the beating being administered by the robbers. Carter was identified by Mrs. Ware, and both Wheeler and Carter were positively identified by Margaret White as the robbers. The fingerprints of both men were found on drinking glasses and a soft drink bottle left in the kitchen. Defendants interposed an alibi defense. Wheeler offered the testimony of witnesses who said he was in Johnson City on the night of the robbery. Carter’s witnesses placed him in Chattanooga at the time. The jury rejected the testimony of the alibi witnesses. The State’s evidence was adequate to warrant the verdict of the jury. The assignments are overruled.

The third assignment for Wheeler and the fifth for Carter say it was error to deny a mistrial when Mrs. Joe Ware on cross-examination, exclaimed that the defendants had killed her husband.

The record shows irrefutably that Mr. Ware died shortly prior to trial from natural causes. This fact was stipulated by the State’s attorney for the benefit of the jury. From the record, it is obvious that the statement by Mrs. Ware was spontaneous and unresponsive to the cross-examination. The trial judge carefully instructed the jury not to consider the statement, after which the jury was polled. Each member of the jury assured the court they would not be influenced by the statement of the witness. Whether error in admission of evidence is prejudicial is gauged by the substance of the evidence, its relation to other evidence, and peculiar facts and circumstances of each case. Where it cannot be said from the record that evidence erroneously admitted was not prejudicial to the accused, or that it did not affect, or contribute to the verdict rendered, the reviewing court will reverse. Under the facts of this case, we do not find the comment of Mrs. Ware to be more than harmless error. T.C.A. Sec. 27-117. We overrule the assignments. Blankenship v. State, 219 Tenn. 355, 410 S.W.2d 159.

The fourth and fifth assignments for Wheeler and the sixth and seventh for Carter complain of admission of the testimony of the robbery victim, Joe Ware, taken at a preliminary hearing. It is said that the testimony was inadmissible, but if admitted at all it should have been admitted in unedited form.

Wheeler was apprehended within a few days after the robbery. Carter was not arrested until June 7th, 1973. A preliminary hearing was held on April 21st, at which Mr. Ware testified. Mr. Ware died on August 4th, 1973, about three weeks before the trial. At the preliminary hearing, Wheeler was represented by counsel. When the State offered the transcript of Mr. Ware’s testimony from the preliminary hearing, the trial judge held an extensive out of jury hearing to determine its admissibility, after which it was ruled that the transcript of the testimony would be admissible subject to deletion of all references to the defendant, Carter.

We have carefully read the preliminary hearing testimony of Mr. Joe Ware admitted into evidence, as well as the unedited transcript which has been included as an exhibit. This testimony was certainly admissible as to Wheeler. Somerville v. State, 483 S.W.2d 757 (Tenn.Cr.App.1972). Also see Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255. The transcript shows that almost the entire testimony of Mr. Ware at the preliminary hearing was devoted to cross-examination. The trial judge in this case exercised extreme caution in deleting any reference to Carter from the transcript. We do not find error here. Having read the edited edition admitted into the record, we do not find prejudice to either defendant, and overrule the assignments.

The sixth assignment for Wheeler and the eighth for Carter charge prejudice, passion and caprice to the jury because their deliberation required only eleven minutes.

After hearing all of the evidence, which indicated a particularly brutal robbery was consummated by defendants, who were positively identified as the perpetrators, the jury was adequately and properly instructed by the trial court on all the elements of the offense, as well as on punishment. We do not find that the length of time required by the jury for their deliberations indicated any improper action on their part. The assignments are overruled.

Each defendant claims it was error to deny a mistrial when it appeared that the jury became separated after hearing all of the evidence in the case.

This assignment of error was not incorporated in the motion for new trial and therefor is not a proper subject for consideration. Wilkerson v. State, 208 Tenn. 666, 348 S.W.2d 314; Kirby v. State, 214 Tenn. 296, 379 S.W.2d 780. Nonetheless, we do not find reversible error on this issue. On the second day of trial, at the conclusion of all the evidence, the jury was excused for lunch prior to summation by counsel. The jury left the court room and descended the stairs to the lower floor. One of the members of the jury returned to the court room to request transportation. He was followed up the stairs by three men who had business in the clerk’s office. The trial judge conducted a hearing and determined this was the extent of the separation. There had been no communication with the juror. It was proper that this matter be called to the attention of the trial court, however, we reviewed this issue extensively in Wade v. State, 524 S.W.2d 497 (Tenn.Cr.App.1975), and as we said there, in the absence of the showing of prejudice in the separation of the jury such separation must be held harmless error.

The eighth assignment for Wheeler and the third assignment for Carter, allege error in denying a motion to quash the jury panel on the ground that the representation of black persons on the jury was inadequate.

The trial court held an out of jury hearing on this issue. The evidence was that two of the thirty-eight jurors were black among the panel from which the trial jury was drawn. One other black person had not responded to a subpoena.

There is no constitutional guarantee that a person must be tried by a jury wholly or partially composed of persons of his own race. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. There is absolutely no evidence in this record that this jury was composed of members from which a certain race, class, or group had been systematically and schematically excluded. The purposeful discrimination may not be assumed, it must be proved. Johnson v. State, 3 Tenn.Cr.App. 17, 456 S.W.2d 864. The assignments are overruled.

Defendants contend they were prejudiced when the State exercised peremptory challenges and discharged the only two black jurors on the panel.

As we said in Johnson v. State, supra, there is no precedent for holding that the State cannot exercise its allotted challenges with unbridled discretion, nor does the fact that one of these defendants was black and the other white provide such a precedent in this case.

Carter makes one additional assignment in which he claims prejudice in not being allowed to introduce evidence that he did not participate in an escape which occurred while he was being held prisoner pending trial. There is no validity to this assignment which is overruled.

The judgment of the trial court is affirmed. The clerk is directed to certify this record to the Supreme Court in accordance with the Order granting the petition for certiorari.

WALKER, P. J., concurs.

OLIVER, J., did not participate in consideration of this case on remand.


source: Caselaw Access Project

author: DWYER, Judge.

license: Public Domain

text:
    Geraldine BRYANT, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 16, 1976.
    Certiorari Denied by Supreme Court July 26, 1976.

      Norman D. Lane and Harry Lester, Nashville, Dave A. Alexander and Mark Hartzog, Franklin, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, Elmer D. Davies, Jr., Dist. Atty. Gen., Franklin, for defendant-in-error.
   OPINION

DWYER, Judge.

This appeal from a conviction for murder in the second degree with resulting punishment of confinement for not less than ten years nor more than ten years is before us in compliance with the mandates of our Supreme Court as outlined in Bryant v. State, Tenn., 527 S.W.2d 742 (1975).

In evaluating the assignments of error urging the insufficiency of the evidence, we will summarize the evidence as found from our review.

The deceased, the husband of the plaintiff-in-error, expired from a gunshot wound inflicted as he lay asleep in bed on the early morning hours of March 5, 1972. The Williamson County Sheriff received a call from the plaintiff-in-error to come to the residence of the deceased on Edmondson Pike in Williamson County around 2:30 a. m. Upon his arrival, he was admitted into the house by Mrs. Bryant who was clad in a nightgown which had blood on the front. When the sheriff entered the bedroom, he observed the deceased lying on his right side on the left side of a king size bed. He noticed a large quantity of blood on the bedclothes, the bed, and the head of the deceased. He noted a hole in the back of the victim’s head located “3 to 31V2 inches” to the rear of the left ear and down a bit, near the center of the neck. As he described it, a ragged, jagged exit wound was located above the center of the right eyebrow. From this exit wound he observed a portion of the brain protruding. He also noted a slit in the pillow casing to the right of the deceased’s face and a bullet hole in the bedroom wall, both indicating a straight line path which the bullet followed.

There was a 357 magnum Ruger pistol with the butt inside the decedent’s right hand with the muzzle pointing toward the ceiling. It was evident to the sheriff that Mr. Bryant was dead. It was also developed that the covers were up around decedent’s shoulders. A bone fragment was observed on the floor. He questioned Mrs. Bryant and it was disclosed that only the two of them were in the home at the time of the death of Mr. Bryant. When he asked Mrs. Bryant if she shot her husband her reply was a denial. The sheriff did not question her anymore.

At the trial it was developed through expert testimony from a prominent neurosurgeon that in his opinion the bullet had traversed the pons of the brain and that death was instantaneous. That if the wound had been self inflicted from the rear it would have been impossible for the decedent to have then placed the pistol in front of him or to pull the covers up over him. In his opinion, due to the type powder burns on the entry wound, the weapon had to have been held a minimum of six inches from the head and a maximum of three feet.

The primary thrust of the state’s case was that it would have been a physical impossibility for the deceased to have held the gun (a rather lengthy weapon) in the position required to have self inflicted the wound under these circumstances.

The plaintiff-in-error testifying in her own behalf related that she and her husband had been separated for a period of a month. That he had returned home that date in order to effect a reconciliation. That they had been out to dinner until approximately 9:00 p. m. and after returning home had retired and had intimate relations after which she fell asleep. She further testified that because of the deceased drinking the act of intercourse was unconsummated. That she was awakened by a loud noise, felt an object in the bed which she found to be the pistol, turned on the light, and saw blood on her husband. That she tried to help him and may have picked up the pistol and placed it in his hand. That she did not shoot and kill her husband. In other words, the decedent took his own life.

The evidence also reflects that plaintiff-in-error was the beneficiary of decedent’s estate.

We think the evidence is sufficient to sustain the verdict. It must be remembered that on appeal we look at the evidence in the light as accredited by the verdict of the jury which places the burden on the plaintiff-in-error to show that the evidence preponderates against her guilt and in favor of her innocence. McBee v. State, 213 Tenn. 15, 19, 372 S.W.2d 173 (1963). The jury has rejected the testimony of the plaintiff-in-error that the wound was self inflicted. With the rejection of her version, coupled with her statement that they were alone, the circumstances outlined unerringly point the finger of guilt to her alone. We are also satisfied that the cause of death, even in the absence of a doctor examining the body, has under our narration been overwhelmingly established. State v. Townsend, Tenn., 525 S.W.2d 842, 843 (1975). The use of a deadly weapon supplies the necessary ingredient of malice to support murder in the second degree. Witt v. State, 46 Tenn. 5, 8 (1868). Under this proof, we are concededly at a loss as to why the jury was so lenient.

With our finding that the evidence is sufficient, her assignment contending the trial court erred in overruling her motion for a directed verdict is overruled. The adjunct contentions to that motion, to wit, the lack of fingerprints on the weapon linking her to the crime and the failure of the state to take tests to determine whether she fired the weapon we also find to have no merit.

The defendant next urges that the trial court erred in allowing over objection the expert testimony of the neurosurgeon and in allowing rather lengthy testimony as to his qualifications when that fact was agreeable to her to be stipulated.

The argument is advanced that the doctor’s opinion testimony was not predicated on facts in the record. The allowance of expert testimony is within the discretion of the court, Murray v. State, 214 Tenn. 51, 55, 377 S.W.2d 918, and we think that the court exercised that discretion soundly in this instance. Additionally, establishment of an expert witnesses’ qualifications is a necessary predicate for the allowance of his testimony. Pruitt v. State, 216 Tenn. 686, 393 S.W.2d 747, 751 (1965).

We think there was no invasion of the province of the jury by allowing the doctor, who had unlimited World War II and Korean Conflict experience in the treatment of head wounds, to express his opinion from hypothetical questions based upon facts (which we will later outline) in the record and photographs of the decedent.

We are satisfied that the cause of death had been clearly established. It is also clear from the evidence that the entry wound was in the back of the head and the exit wound was in the front. The doctor expressed his opinion based upon the angle of the wounds from entry to exit that the bullet had traversed the pons of the brain which would mean instantaneous death. That if that had occurred the decedent could not have then placed the pistol in front of him and pulled the covers over his shoulders. The doctor unequivocally related he could not say that the wound was not self inflicted, which was the ultimate question for the jury. He could and did properly relate, however, that in his opinion, based on facts in hypothetical questions and the pictures, the dark discoloration encircling the entry wound was not a contact wound where the muzzle of the gun is in contact with the skin. Based upon the fact that free skin was between that discoloration and the wound itself, the doctor stated that in his opinion the weapon was held at least a minimum of six inches from the head and a maximum of three feet. We think the doctor’s opinions were factually based and appropriately admitted in this instance. Moon v. State, 146 Tenn. 319, 365, 368, 242 S.W. 39 (1921).

The treatment of the above assignment justifies the allowance of the photographs into evidence. Gordon v. State, Tenn.Cr.App., 478 S.W.2d 911, 917 (1972). This assignment is overruled.

We find no abuse of the trial court’s discretion in allowing into evidence a diagram drawn by the county coroner depicting the entrance wound and the powder burns at the time he examined the wounds. It was not drawn to scale but represented as closely as possible the wound and powder burns as he viewed them on the victim. We find no error. Wharton’s Criminal Evidence, 13th Ed., § 641. The assignment is overruled.

We find no error in admission of the sheriff’s questioning of plaintiff-in-error absent the Miranda warning during the investigation on the scene. The sheriff, we think, was making a proper on-the-scene investigation when he asked her three questions about (1) who was in the home at the time; (2) her location; and (3) whether she shot her husband. No further questions were asked.

As the United States Supreme Court clearly emphasized in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966):

“The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subject to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way.”
* * * * * *
“Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. State of Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977. . . . General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact finding process is not affected by our holding. . In such situations the compelling atmosphere inherent in the process of in-custody interrogations is not necessarily present.” 86 S.Ct. at 1629.

In the instant case, the sheriff had been called by the defendant to the home where the death occurred. She was not in custody or deprived of leaving the premises. While the officer acknowledged that anyone that may have been in the house at the time was a potential suspect, we do not think, under the circumstances, the questioning had proceeded beyond a proper on-the-scene investigation. Tate v. State, 219 Tenn. 698, 706, 413 S.W.2d 366 (1967); State v. Morris, 224 Tenn. 437, 456 S.W.2d 840 (1970). Furthermore, we are not persuaded that this line of questions played any part in forcing her to testify when her responses were completely compatible with her defense. This assignment is overruled.

The plaintiff-in-error urges the court erred in allowing the attorney general to peruse notes of her retained private investigator and to cross examine about information therein. The investigator in testifying used his diary notes to refresh his memory. The attorney general asked to view those notes and based upon them attempted to cross examine the investigator. At the out of the presence of the jury hearing on this matter, the court sustained the defendant’s object to the use of the notes by the attorney general. In the absence of any designation by her that the use of the notes aided the state to her detriment, we find no error. This assignment is overruled.

Lastly, the urging is advanced that the permitted use by the state of a simulated bedroom scene, replete with dummy, bed, mattress, springs, and wallboard, which were not exactly the same furnishings and not exactly the scale, was prejudicial. Both the state and the plaintiff-in-error relied upon Hughes v. State, 126 Tenn. 40, 148 S.W. 543 (1912) to sustain their respective positions of being competent and prejudicial.

We read Hughes in the light of permitting this type exhibit when it aids the witness to better illustrate his testimony to the jury. This assignment being overruled, the judgment of the trial court is affirmed.

GALBREATH and RUSSELL, JJ., concur.


text:
    Jerry BEASLEY and Jeffery Allison, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 17, 1976.
    Certiorari Denied as to Beasley by Supreme Court July 6, 1976.

      Alec Garland, Manchester, for Beasley.
    Donald J. Ray, Tullahoma, for Allison.
    R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, Charles S. Ramsey, Jr., Dist. Atty. Gen., Manchester, for defendant in error.
   OPINION

DWYER, Judge.

At a joint trial Jeffery Allison was convicted for committing the offense of armed robbery with resulting punishment of confinement for ten years. Jerry Beasley was convicted for committing the offense of robbery with punishment at confinement for not less than five nor more than eight years.

They both have filed assignments of error contending among others that the evidence was insufficient to support the verdicts.

That evidence from our review reflects that Mrs. Betty Lawson, owner of the Lawson’s Bait Shop in Tullahoma was beaten and robbed of $200 taken from the cash register of her business on the early afternoon of December 11, 1974. At the trial she testified that Allison, along with two others, identified as Roger Berry Jennings and Eddie Lee Brown, entered her store on the above date around 1:30 p. m. That Jennings asked to purchase a fishing license and when she turned to ring up on the register the amount he gave her for the license, Jennings struck and knocked her to the floor. At this time Brown found and took a pistol from a drawer behind the counter and pointed it toward her, and stated he would shoot her if she raised her head. Jennings kicked her as she lay on the floor resulting in several broken ribs. After Jennings had removed the money out of the cash register, the three fled the store. The victim was hospitalized for several days as a result of the assault. While she was convalescing, she failed to identify photographs of the three; however, she had known Brown before the robbery. She later identified them in a lineup and at trial. The arrest of the three who entered the store and two other codefendants, Jerry Beasley and Ben Foster, followed in short order after the event.

The codefendant Brown was granted a severance and testified in rebuttal for the state. The codefendant Roger Berry Jennings on his motion was granted a mistrial and his case was severed from the record during the trial. Another codefendant, Ben Foster, was found to be not guilty when the jury returned its verdict.

The evidence as to Jerry Beasley may be thusly summed up. A red Mustang automobile had been seen in the alley in back of Lawson’s Bait Shop on the date and at the time in question. Three male blacks were observed by a passerby running from the bait shop and jumping into the car, which was owned by Beasley’s father. This Mustang had been observed by the investigating officer on previous dates with Beasley driving it, and the officer testified he had never observed anyone but Beasley driving it. Another witness testified that he saw a black man in the car when it was parked in the alley at the time of the robbery. And still another testified that he observed Beasley in the near vicinity driving the Mustang shortly before the robbery.

We think the above facts are consistent with the hypothesis of guilt as to Beasley and inconsistent with his innocence in our overall review of this evidence. Harris v. State, 217 Tenn. 582, 586, 399 S.W.2d 749 (1965). That evidence as detailed was uncontradicted. Humphreys v. State, 187 Tenn. 377, 215 S.W.2d 791, 793 (1948), and must be viewed here in its strongest light to the theory of the state as outlined in State v. Pritchett, Tenn., 524 S.W.2d 470, 472 (1975). That theory, as accredited by the verdict of the jury, is that Beasley was driving the Mustang and transported Jennings and Allison from the scene. In short, he was aiding and abetting in the robbery. The assignment is overruled.

Plaintiff-in-error Allison contends that the court erred in failing to grant his motion for a directed verdict, at least as to the charge of armed robbery. His reasoning is that the use of the pistol by Brown was after the robbery was completed, therefore, the evidence would not sustain his armed robbery conviction. We reject that reasoning. Burgin v. State, 217 Tenn. 682, 687, 688, 400 S.W.2d 539 (1965). The victim identified Allison as one who entered the store with Jennings and Brown, and who fled from the store with those two after the assault and the robbery. Code-fendant Brown, in rebuttal, also testified that Allison was one of the three robbers of the store. Allison’s presence, under the circumstances outlined, raised a question of fact for the jury as to whether he was a participant in the robbery. That verdict has resolved that question adversely to him. McBee v. State, 213 Tenn. 15, 19, 372 S.W.2d 173 (1963). This assignment relating to the directed verdict is overruled.

Beasley assigns that the trial court erred in not abating the indictment against him because he was denied effective assistance of counsel during the thirty days following his arrest. Three of the codefend-ants were represented by retained counsel and a fourth one had appointed counsel but Beasley was not represented until counsel was appointed on January 13, 1975, thirty-three days after his arrest. In the meantime Beasley had been indicted during a regular session of the grand jury of the county. He reasons that since no attorney was appointed during that period of time, he could not avail himself of the rights under T.C.A. 40-1131 providing for a preliminary hearing and further contends that the right should be enlarged to require appointment of counsel immediately after arrest. He cites no authority to support his contention and it is weighed accordingly.

The trial court, however, did allow a preliminary hearing after the appointment of counsel, which, we think, corrected any prejudice which may have arisen from the delay.

The defendant complains further that he was not provided with a court reporter and free transcript at that hearing. While we can see perhaps a difficult gap here as to indigents preparing a transcript of a preliminary General Session Court proceeding, however, we are not cited to any authority to support this urging. We note that the record does reflect utilization by the defendant throughout the trial of discrepancies at the trial with testimony at the hearing. Under the circumstances outlined, we find no error. This assignment is overruled.

Allison assigns that the court erred in refusing to grant the defendant’s request for special instructions to the jury concerning the defense of alibi. He complains that the prosecution’s failure to provide information as to the whereabouts of his sole alibi witness deprived him of evidence which could substantiate his alibi defense.

There was no proof other than Allison’s testimony that he was not in the bait shop at the time of the robbery and had never been in the bait shop. We find no error here when the only proof that he was elsewhere was his own testimony, and where he had been identified as being in the store and where his participation is not based solely on circumstantial evidence. Manning v. State, Tenn., 500 S.W.2d 913, 916 (1973). The state was under no duty to locate the alibi witness of Allison. This assignment is overruled.

Allison assigns as error that the trial court erred in allowing rebuttal evidence by the state’s witness Brown. He reasons this evidence via Brown’s testimony that Allison participated in the robbery should have been introduced in chief. This is a matter within the sound discretion of the court. Guy v. State, 1 Tenn.Cr.App. 366, 443 S.W.2d 520, 522 (1964). We find no abuse of that discretion. This assignment is overruled.

Lastly, both defendants contend that the court erred in not allowing surrebuttal of Brown’s testimony. We find no error here as to Beasley in the absence of any testimony by Brown as to Beasley’s involvement. Brown’s testimony referred only to the fact that they fled in a Mustang. It is further noted that no predicate for impeachment was advanced by Beasley. Allison contends that surrebuttal should have been allowed to reflect Brown’s prior inconsistent statement that other persons were involved in the robbery with no mention of Allison. The trial court out of the presence of the jury allowed a proffer of proof that the witness sought to be called would rebut Brown’s denial that he had afore related that, in fact, other people committed the robbery.

We think that the only opportunity for this impeachment type testimony to be relevant was after Brown’s denial of that prior statement. It was the state’s choice to tender Brown in rebuttal, but with that choice we think an accompanying right to impeach was advanced to Allison. 88 C.J.S. Trial § 103, p. 217. There, of course, must be a limit to rebuttal and surrebuttal, which is within the sound discretion of the court. Under these circumstances, however, we feel it was an abuse of that discretion not to allow the surrebuttal evidence to impeach Brown. State v. Arnold, 139 Tenn. 674, 202 S.W. 935 (1917). This testimony was clearly prejudicial to Allison, for it put him in the store not only participating in the robbery, but possibly in the assault. We cannot say that this did not affect the results. This assignment of Allison’s is sustained.

The judgment of the trial court as to Beasley is affirmed. The judgment of the trial court as to Allison in view of our sustaining his assignment of error herein above, is reversed. The record is remanded for a new trial.

GALBREATH and RUSSELL, JJ., concur.


author: DAUGHTREY, Judge. WALKER, Presiding Judge

text:
    Joseph Arthur MATTINO, Petitioner, v. STATE of Tennessee, Respondent.
    Court of Criminal Appeals of Tennessee.
    March 23, 1976.
    Certiorari Denied by Supreme Court July 6, 1976.

      George H. Carnall, II, Memphis, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, James D. Wilson, Asst. Dist. Atty. Gen., Memphis, for respondent.
   OPINION

DAUGHTREY, Judge.

Joseph Arthur Mattino, a youthful first offender, was sentenced by the Shelby County Criminal Court to serve 11 months and 29 days in the Shelby County Penal Farm upon his plea of guilty to a charge of petit larceny. At the time the plea was entered, a hearing was held on the defendant’s petition for suspension of sentence and admission to probation, and at the conclusion of the hearing the trial court denied suspension and probation. The defendant appeals this denial, asserting that the trial court erred in denying his petition. We agree, and consequently reverse the order and remand the cause with directions to the court below.

Two questions present themselves for resolution on this appeal:

(1) Whether the trial court’s action in refusing to grant probation was an abuse of its discretion; and

(2) Whether there was a failure by the trial court to consider the probation report, constituting reversible error and requiring remand for reconsideration of the report.

The authority of the trial judge to suspend execution of sentence and place a criminal defendant on probation under conditions devised by the court is a statutory power of fairly recent origin in Tennessee, dating to Chapter 76 of the Acts of 1931. See T.C.A. §§ 40-2901 et seq. In determining whether to grant or deny probation, the trial court must exercise its discretion such that “its action will subserve the ends of justice and the best interests of both the public and the defendant.” Hooper v. State, 201 Tenn. 156, 162, 297 S.W.2d 78, 81 (1956). Although the statute assigns the determination to the “sole discretion of the trial judge,” T.C.A. § 40-2904, it is well-settled that this discretion is not absolute and must constitute the “exercise [of] a conscientious judgment, not an arbitrary action.” Hooper v. State, id.

In its recent decision in Stiller v. State, 516 S.W.2d 617 (1974), the Tennessee Supreme Court has made explicit the right of both the State and the defendant to an appellate review of the trial court’s probation determination. But the trial judge’s decision denying probation may be overturned only if “capricious, arbitrary or palpably abusive of his discretion.” 516 S.W.2d at 620.

In addition, this court in a recent opinion has held that when denying suspension and probation the trial court must set out in the record its reasons for the denial. Darryl Greer v. State, Court of Criminal Appeals, Jackson, October 1975. Such a requirement is obviously necessary to give the appellate courts a basis upon which to provide a meaningful review, to determine whether the decision was indeed a conscientious judgment by the lower court or merely an arbitrary action.

In this ease, at the conclusion of the hearing the trial judge made the following oral statement from the bench reflecting his reason for denying probation:

“Considering the testimony in this case and reading the letters of — on behalf of this defendant and hearing the statements of counsel and also considering the fact that this plea of guilty is on a reduced charge to that of petit larceny, it is the judgment of this Court that this petition should be denied.”

The testimony at the hearing consisted of the prosecutor’s statement of fact entered in the record as the basis for acceptance of the defendant’s guilty plea, and the defendant’s testimony offered in support of his petition for a suspended sentence. The facts developed by the testimony indicate that the defendant, a 20 year old native and resident of New York, along with two juveniles burglarized an unoccupied residence in Memphis, Tennessee. The trio removed food, blankets, a gold watch and a color television set (total value $680.00) and fled west from Memphis by car. They drove until too tired to continue, pulled off the highway to rest and were promptly arrested by Arkansas police officers. The defendant waived extradition and was returned to Memphis where he cooperated with investigators by giving a full signed confession. Subsequently property worth $673.00 was returned to the home owner.

The defendant is a first offender with no criminal record of any kind and, according to the prosecutor, no history of drug involvement. He comes from a broken home and had dropped out of high school after the tenth grade, apparently because he was forced to leave home and become self-supporting. At the time of the hearing he was employed as an auto mechanic in his hometown in New York, by someone for whom he had worked previously and who wanted to continue to employ the defendant during the period of his proposed probation.

The letters referred to by the trial court and preserved in the record include letters from the defendant’s mother, several of his neighbors, his current employer and a former employer, and the director of probation services in New York who is personally acquainted with the defendant. While admittedly solicited by the defendant or his counsel, these letters can only be characterized as highly favorable to the defendant. Their tone ranges from warmly supportive to enthusiastic, with references to the defendant as “a good boy,” “quiet and good natured,” “never before in trouble,” “helpful,” “a very good worker,” “trustworthy,” “honest and forthright in his approach to his responsibilities,” “a very reliable and considerate person.” The New York probation director expresses surprise at the defendant’s current difficulty with the law and concludes “I am certain that he has learned his lesson well.”

The defendant had been indicted for first degree burglary, grand larceny, receiving and concealing, and upon his guilty plea to the lesser included offense of petit larceny, the prosecutor recommended a sentence of 11 months and 29 days. The prosecutor entered no opposition to the petition for probation, a neutral if not favorable factor to the defendant.

From these facts and circumstances it is apparent that the sole basis for the court’s denial of probation was the nature of the offense and some unspoken feeling by the judge that the defendant had already been given his “one break” in being allowed to plead to a lesser offense. This conclusion is fairly deduced from the Court’s own statement set out above. The letters to which the judge refers are uniformly favorable and therefore do not support a denial of probation. The testimony was virtually all favorable to the defendant — with the exception of the facts surrounding the criminal conduct with which he was charged.

Thus the essential question in this particular case is whether it is within the trial court’s discretion to deny probation based solely on the nature of the offense or, concomitantly, on the circumstances of the defendant’s conviction (here, upon a guilty plea to a lesser offense). A close reading of the Stiller decision compels us to find that the court’s denial on such a narrow basis may indeed constitute an abuse of discretion requiring reversal of the court’s order denying probation.

In Stiller the court reiterated the language of Hooper to the effect that probation is a matter of privilege and is not available to a criminal defendant as of right upon demand or upon a particular showing. 516 S.W.2d at 619. But the court went on to delineate what rights the defendant does have, i. e. “the right to petition the court for probation, the right to a full and fair evidentiary hearing and the right to all the procedural requirements contained in or necessarily contemplated by the statutory scheme.” 516 S.W.2d at 619-20. Further the Stiller court characterizes probation as “a privilege to be conferred after a determination of the circumstances of the offense, the defendant’s criminal record, his social history, his present condition and, where appropriate, his physical and mental condition . . . ” 516 S.W.2d at 620. This language is that of the statutory provision in T.C.A. § 40-2904 requiring the use of probation reports where available to the trial court and governing the content of such reports. Thus it is the clear intent of the legislature that these several factors be considered by the trial court through use of the probation report. And we think that the Stiller opinion requires consideration of the same factors regardless of whether a report is available to the judge, as part of the “full and fair evidentiary hearing” to which the petitioner is entitled:

[The court below proceeded] upon the general basis that the “enormity of this defendant’s crime” precluded the suspension of his sentences and placing him on probation. That this is a legitimate factor for the Court to consider is beyond question, but it is equally beyond question that it is but one of a number of considerations by which the Court must be guided in determining whether to grant or withhold suspension and probation. Other statutory considerations are the defendant’s criminal record, social history, present condition and, in proper cases, his physical and mental condition (emphasis supplied). 516 S.W.2d at 621.

This is not to say that the nature or circumstances of an offense could never provide a sufficient basis for denial of probation. Crimes of violence against the person, or particularly heinous crimes might indeed be the controlling factor in a probation determination. But these crimes are likely to be perpetrated by persons whose backgrounds are largely dissimilar to the defendant’s. In any case, plainly the crime charged here is not of such nature nor the circumstances of its commission such as to constitute a legal barrier to probation. And to deny probation because the defendant has already been granted a concession in pleading to a lesser offense is likewise unreasonable in light of prevalent plea bargaining practices, especially where, as here, the defendant is a youthful first offender. Plea reduction and other forms of bargaining are as much a matter of convenience to the prosecution as to the defense. Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). To suggest, as does the court below, that their use should preclude subsequent probation can only frustrate both the effectiveness of plea bargaining for the prosecution and the possibility of rehabilitation of the defendant by supervised probation programs.

We therefore hold that the trial judge abused his discretion in denying probation on the basis of the reason stated in the record. The record indicates that the trial court’s determination denying probation was based on the nature of the offense and the fact of the plea reduction, all other factors mentioned by the judge clearly favoring the granting of probation to this defendant. If there were other negative factors tending to influence the trial court’s judgment, they should have been entered on the record, either orally or in writing. In this case, the nature and particular circumstances of the offense alone will not support a denial of probation, given the trial court’s failure to properly consider and give weight to the other factors mandated by Stiller and contemplated by the statute, i. e., the defendant’s “criminal record, his social history and his present condition.”

Among other considerations missing from the trial court’s stated reason for denying probation is any indication that the Tennessee and New York probation reports ordered pursuant to T.C.A. § 40-2904 were considered by the court in reaching its decision. The pertinent part of § 40-2904 provides:

The power of suspension and probation is within the sole discretion of the trial judge, however, when a probation and paroles officer is available to the court, no defendant shall be placed on probation until a written report of investigation by a probation and paroles officer shall have been presented to and considered by the court . . . Said report shall inquire into the circumstances of the offense, criminal record, social history, and present condition of the defendant. .

The defendant asserts that the court’s failure to evidence on the record its consideration of the report is reversible error under the statute.

While the court’s verbal order at the conclusion of the hearing fails to mention the existence of the reports or to indicate what weight if any was given by the trial judge to the recommendations contained in the reports, the transcript does show that the judge had been presented with the reports and was in the process of reading them as the hearing commenced. His signature appears on one of the reports over the handwritten notation “Petition denied.” Thus the record indicates that the trial judge “considered” the report for purposes of the statute, and therefore we find no violation under T.C.A. § 40-2904.

However, we note in passing that the trial court’s failure to give explicit weight to these reports does have an adverse effect on this court’s view of the soundness of the trial judge’s exercise of discretion. The reports in this case set out the defendant’s background and current status, and contain information gathered by trained, objective investigators which is virtually wholly favorable to the defendant. One of the reporting investigators categorizes the defendant’s criminal conduct as an “isolated offense.” Both reports recommend probation.

Thus the real question presented by this second issue is whether the trial court has the discretion to ignore the content and recommendations of these reports, given the mandate of Stiller and the thrust of the legislative intent embodied in T.C.A. §§ 40-2901 et seq. While not per se determinative of the issue, such action by the trial judge constitutes but one more factor tending to indicate that an abuse of discretion has occurred in this case.

Upon remand the trial judge may fashion and impose whatever conditions he “may deem fit and proper.” T.C.A. § 40-2901. Under Stiller these conditions of probation “must be reasonable .and realistic and must not be so stringent as to be harsh, oppressive or palpably unjust.” 516 S.W.2d at 620. The scope and variety of techniques possible in planning for the defendant’s rehabilitation are indicated in State v. Cornwall, supra fn. 3, 518 P.2d at 869-872 (McQuade, J., concurring in part and dissenting in part).

In Stiller the Tennessee Supreme Court lauded probation as a desirable alternative to the indiscriminate “warehousing” of criminals. That probation is many times less costly than incarceration has been amply demonstrated. See Standards Relating to Probation promulgated by the Advisory Committee on Sentencing and Review of the American Bar Association, at 29-30 (Approved Draft, 1970), estimating the cost of probation at one-tenth that of incarceration. Studies indicate that probation as a correctional technique enjoys a statistically high rate of success. See, e. g., People v. McClendon, 130 Ill.App.2d 852, 265 N.E.2d 207, 210 (1970). Such statistics have convinced most professionals in the field, as expressed in the Introduction to the American Bar Association Standards, supra, that:

. probation is a good bit more than the ‘matter of grace’ or ‘leniency’ which characterizes the philosophy of the general public and of many judges and legislatures on the subject. Probation is an affirmative correctional tool, a tool which is used not because it is of maximum benefit to the defendant (though, of course, this is an important side product), but because it is of maximum benefit to the society which is sought to be served by the sentencing of defendants.
⅝! * * * SjC ⅜5
The basic idea underlying a sentence to probation is very simple. Sentencing is in large part concerned with avoiding future crimes by helping the defendant learn to live productively in the community which he has offended against. Probation proceeds on the theory that the best way to pursue this goal is to orient the criminal sanction toward the community setting in those cases where it is compatible with the other objectives of sentencing. Other things being equal, the odds are that a given defendant will learn how to live successfully in the general community if he is dealt with in that community rather than shipped off to the artificial and atypical environment of an institution of confinement.

It is not the function of an appellate court to “second-guess” a trial court in the exercise of its discretion. Nevertheless, the appellate courts must guard against abuse of discretion by the trial judge, and we think the failure to invoke the “affirmative correctional tool” of probation under all the facts and circumstances of this case was an abuse. Accordingly we reverse the trial court’s order denying suspension and probation and remand this cause for further orders not inconsistent with this opinion.

WALKER, P. J., dissents.

GALBREATH, J., concurs.

WALKER, Presiding Judge

(dissenting).

I must dissent.

I agree that probation is one of the great advances in the administration of criminal justice, but, in my view, the trial judge in this case did not abuse his discretion under the rules laid down in Stiller v. State. In addition I do not find that Stiller or the statutes require a trial judge to set out in writing his reasons for denying or granting probation. Ordinarily this is not required in discretionary matters. I cannot say that the action of the trial judge here was capricious, arbitrary or palpably abusive of his discretion. An appellant claiming an abuse of discretion has the burden of proving that contention. I do not think he has sustained that burden.

I would affirm the trial judge’s denial of probation.

      . The State in its brief argues that the fact that the defendant had travelled around the country indicated he would be a poor subject for probation. The defendant had worked on his uncle’s farm in Vermont for a year before moving to Florida to live with friends in an unsuccessful attempt to re-enter high school. His last move had been to a small town in Arizona, where he had worked at a construction job. These facts fail to demonstrate an uncontrollable wanderlust which would prevent successful rehabilitation by means of probation. If probation were granted, the defendant’s movements would be strictly subject to the order of the trial court, T.C.A. § 40-2904, and his efforts to complete his education might well be greatly enhanced by the individual supervisory influence of his probation officer.

      . The trial judge in Stiller had granted probation and the order was appealed by the State. The Court of Criminal Appeals reversed the trial court, denying the defendant probation. The probation report had not been made a part of the technical record, and so the appellate court apparently based its decision on the nature and circumstances of the offenses involved. The Supreme Court reversed and reinstated probation.

      . In arriving at this decision, we have been favorably impressed by the following guidelines adopted by the Idaho Supreme Court in State v. Cornwall, 95 Idaho 680, 518 P.2d 863, 866 (1974):
      The trial court must consider the following in arriving at its decision: (1) all the facts and circumstances surrounding the offense of which the applicant is convicted; (2) whether the applicant is a first offender; (3) the previous actions and character of the applicant; (4) whether the applicant might reasonably be expected to be rehabilitated; (5) whether it reasonably appears that the applicant will abide by the terms of the probation, and; (6) the interests of society in being protected from possible future criminal conduct of the applicant (emphasis supplied).


author: DUNCAN, Judge.

text:
    Roger Dale CHISOM, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    April 2, 1976.
    Certiorari Denied by Supreme Court July 6, 1976.

      James L. Hicks, Nashville, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., Michael D. Noel, Asst. Dist. Atty. Gen., Nashville, for defendant in error.
   OPINION

DUNCAN, Judge.

The defendant brings this appeal contesting his conviction in the Davidson County Criminal Court for the offense of escape from the penitentiary, for which he received a 6 months workhouse sentence. The defendant’s indictment and conviction were based on the provisions of T.C.A. § 39-3802, which section provides as follows:

“If any inmate serving a term under the direct or indirect custody and supervision of the department of correction, or other state division or agency, or on furlough granted pursuant to § 41-356, shall escape or attempt to escape, he shall be indicted for an escape, and on conviction, be punished by imprisonment in the penitentiary for a term of one (1) to five (5) years to commence from and after the expiration of the original term.”

The defendant first complains of the legal sufficiency of the convicting evidence. His counsel does not elaborate on this assignment in his brief and argument, other than to comment that the assignment “is submitted to the wisdom of the court.” Likewise, we see no need to say anything, other than that the evidence conclusively shows that the defendant was in lawful custody at the state penitentiary, after having been convicted of rape, and that he did escape. The assignment is overruled.

In his second assignment of error, the defendant complains that the court erred in overruling his plea in abatement charging governmental misconduct, in that his escape was a result of the penitentiary officials working him outside of the bounds of the penitentiary, in contravention to the provisions of T.C.A. § 41-327. This code section provides that no murderer or rapist is allowed to work “outside of the prison bounds of the penitentiary, unless by direction of the commissioner of correction.”

This assignment is unmeritorious for two reasons. First, even if the prison officials were working this defendant outside the prison bounds of the penitentiary in contravention to the provisions of this section, that would amount to nothing more than administrative misconduct and would not have given the defendant a license to escape. The defendant cites no authority for this insistence and rightly so, for there is none. Second, contrary to the defendant’s insistence, the evidence in this case shows that the defendant’s escape was from within the prison bounds of the penitentiary. Testimony of one of the guards, James H. Watts, Jr., was that the defendant escaped while assigned to a work detail, “cleaning out fence rows,” on “Farm Road,” such area being “part of the Tennessee State Penitentiary grounds.” The assignment is overruled.

Next, the defendant argues that it was error for the court to require him to stand trial in prison clothes.

On the day of the trial, the defendant’s counsel, apparently for the first time, requested that he be tried in street clothes rather than prison clothes, which request was denied. The defendant was being tried for an escape, and the jury was well aware from the evidence that he was an inmate of the penitentiary. One of the elements of the offense of escape, which the State was required to prove, was his incarceration. Thus, his attire did not tell the jury anything about his status that they did not learn from other competent evidence. The proof of the defendant’s guilt was overwhelming, and the small sentence imposed upon the defendant by the jury affirmatively shows that he was not prejudiced by the manner in which he was dressed. The error is harmless. T.C.A. § 27-117. This assignment is overruled.

Next, the defendant says that the State failed to prove that he was lawfully confined in the penitentiary, insisting that his confinement was pursuant to an invalid judgment.

The State introduced into evidence the order of the trial court committing the defendant to the state penitentiary. This order recited that the defendant had been convicted of rape and given a 15 year penitentiary sentence; that he was being held without bail, pending his motion for a new trial and/or appeal; that for safekeeping reasons, and by authority of T.C.A. § 40-3108, he was to be removed from the Coffee County Jail to the state penitentiary, pending the further order of the court.

Clearly, the trial judge was within his authority to commit the defendant to the penitentiary, pending the outcome of any attendant appellate proceedings in his case. T.C.A. §§ 40-3108 and 41-1125; Burt v. State, 2 Tenn.Cr.App. 408, 454 S.W.2d 182 (1970).

Equally as clear, the introduction into evidence of the court’s order, referred to above, was sufficient proof to show that the defendant was lawfully in custody at the state penitentiary. T.C.A. § 41-718 provides that in escape trials, “copies of the records transmitted to the warden of the penitentiary, relative to the former trial of such prisoners, shall be presumptive evidence of the former conviction.”

The defendant’s insistence that he was unlawfully confined to the penitentiary by reason of an invalid judgment is not tenable. In the defendant’s direct appeal from his rape conviction, our Court found that “no judgment upon the verdict of the jury was ever made and entered on the minutes of the court by the trial judge.” Our Court dismissed his appeal and remanded the case to the trial court for pronouncement of a proper judgment. See Roger Dale Chisom v. State, unpublished, Tenn.Cr. App., opinion filed, Nashville, January 28, 1975. The defendant’s rape conviction was neither approved nor disapproved in that decision. As a matter of interest, the record shows that subsequent to this Court’s decision in that case, the defendant was returned to the trial court where he was re-sentenced and judgment was properly entered.

The fact that the trial court initially failed to enter the judgment on the minutes of the court, and the fact that the date of the defendant’s escape occurred prior to the court entering a proper judgment, does not negate the defendant’s conviction for escape. Those matters do not and cannot detract from the fact that the defendant was in lawful custody at the state penitentiary and that he escaped from such lawful custody.

An escape has been described as a departure from lawful custody. In 30A C.J.S. Escape § 2, at 876, we find the following language:

“The crime of escape has been defined as the voluntary departure of a person without force from the lawful custody of an officer or from any place where he is lawfully confined, as the unlawful departure of a prisoner from the limits of his custody or his acts in regaining his liberty before released in due course of law. A prisoner who gains his liberty from lawful custody before he is delivered therefrom by due process of law commits the crime of escape.”

In 3 Wharton’s Criminal Law and Procedure, § 1367, at 758 (1957), it is stated:

. .An actual escape, that is, an escape in common meaning, takes place when a prisoner gets out of prison or any place in which he may be confined, or from and out of the authority in whose custody he is, and unlawfully regains his liberty, free from the authority and control of the power entitled to restrain him . . .."

Black’s Law Dictionary 639-40 (4th ed. 1957), defines the word “Escape” as:

“The departure or deliverance out of custody of a person who was lawfully imprisoned, before he is entitled to his liberty by the process of law.”

In the present case, the State was only required to prove that the defendant was in lawful custody and that he did escape therefrom. As heretofore stated, the evidence conclusively shows that these elements were proved by the State. In our view, the matters that developed out of the defendant’s direct appeal of his rape conviction are not germane to this escape conviction. The assignment is overruled.

We find no merit in the defendant’s last assignment of error, in which he complains that the Attorney General in his argument before the jury referred to the defendant as a “convicted rapist.” When the defendant objected to this statement, the trial judge cautioned the jury by saying: “We’re not trying him on anything other than escaping.”

Actually, the Attorney General was not telling the jury anything they did not already know. In order to show the defendant’s custodial status, evidence was already before the jury to show his prior conviction for rape.

Moreover, since the proof was overwhelming to show his guilt of escape, and even if such comment by the Attorney General could be said to be error, it can only be considered to see if it affected the punishment meted out to the defendant by the jury. The facts in this case showed that the defendant effected his escape by driving a bus away from the prison work area to which he had been assigned. The bus was occupied by 12 other inmates, and as it departed, two of the guards found it necessary to fire their shotguns at the bus. The defendant was apprehended some 3 to 4 hours later. In spite of the aggravated facts and circumstances attendant to the defendant’s escape, the jury fixed a small workhouse sentence of 6 months.

Thus, from these facts, and considering the lenient punishment assessed, we readily conclude that the Attorney General’s comment in no way affected the jury in setting the defendant’s punishment. We find that this statement had no effect upon the verdict of the jury to the prejudice of the defendant. The error, if any, was harmless. T.C.A. § 27-117; Morrison v. State, 217 Tenn. 374, 397 S.W.2d 826 (1965) Petition to Rehear (1966); Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758 (1965).

We overrule the defendant’s assignments of error and affirm the judgment.

GALBREATH and O’BRIEN, JJ., concur.


author: DAUGHTREY, Judge.

text:
    John C. PYBURN, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    April 6, 1976.
    Certiorari Denied by Supreme Court July 26, 1976.

      Robert S. Peters, Winchester, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, J. William Pope, Jr., Dist. Atty. Gen., Pikeville, Robert J. Leiderman, Asst. Dist. Atty. Gen., Jasper, for defendant in error.
   DAUGHTREY, Judge.

OPINION

The defendant, John C. Pyburn, was indicted for second degree murder in the Marion County Circuit Court, and upon his conviction of this offense, he was sentenced by the jury to life imprisonment.

On appeal the defendant raises multiple assignments of error which address themselves to three main issues: (1) the sufficiency of the evidence to support the verdict, in light of the defendant’s interposed defense of insanity; (2) the admissibility of certain statements made by the defendant shortly after the event; and (3) alleged prejudice to the defendant resulting from an improper question by the prosecutor asked of the defendant on cross-examination. For the reasons set out below, we find no reversible error on any of these grounds and accordingly we affirm the judgment of the trial court.

I

A review of the record indicates that on the evening of September 11, 1974, the victim, Mr. James Uselton, was on duty at the Whitwell, Tennessee City Hall, acting as part time jailer and police dispatcher. At about 10:00 P.M. he received almost instantly fatal injuries from a .357 magnum pistol fired through an outside door into the police department office, the shots striking him at close range in the back and chest area and in both arms. There were no other persons in the building at the time of the shooting, and no direct eyewitnesses.

Later the same night the defendant was found by a Sequatchie County deputy sheriff standing beside his stalled automobile on a rural highway. He told the deputy that he was out of gas. The officer determined that the defendant was under the influence of alcohol, although not “falling down drunk,” and intended to arrest him for public drunkenness. At this point the defendant mentioned the name of one Kelsey Griffith, for whom he did part time work repairing guns. At the defendant’s request the officer agreed to go and get Griffith and bring him to the scene, which he did. After a conversation between Griffith and the defendant, the defendant was allowed to leave with Griffith.

Kelsey Griffith, a Dunlap, Tennessee gun dealer, testified that as he was taking the defendant to his automobile, he “felt a weapon” and took from the defendant a .357 magnum pistol which he put under the driver’s seat of the car. Griffith then testified:

I went back and helped the deputies push (the defendant’s) car out of the road. And when I got back in (my) car with Mr. Pyburn, I asked him jokingly like you know, since I had found the gun I asked him, I said, what’ve you been doing Johnny, playing Gunsmoke? And he said, I think he said, hell yes . I shot up Whitwell, and I said what do you mean you shot up Whitwell? He said, I shot up the jail down there. . So then I stated to Mr. Pyburn, I said, “Johnny, do you know you killed the jailer down at Whitwell? And he said, “Did I?” or “I did?” And I said, “You sure did feller.” And he just laughed. .

The defendant also told Griffith that he had been “eating pills and chasing it with beer.”

At this point in route to the defendant’s home, Kelsey was near his brother Bobby Griffith’s home, and decided to stop and tell Bobby, a Sequatchie County deputy sheriff, what he had just learned from the defendant. He awakened his brother and standing in the living room “told him that Johnny was outside in my car and I believed that he might be involved in the incident in Whitwell,” which the Griffith brothers had learned of sometime earlier that night.

Bobby Griffith returned to his bedroom to dress, and as he emerged he found the defendant standing in the living room. Bobby Griffith testified:

. I asked Mr. Pyburn what he’s doing up at this time of night. And he told me (h)e’d went to City Hall in Whitwell, Tennessee and asked the jailer if he had his friend Ott Higdon in jail? And the jailer said no, and slammed the door in his face, and he stated that he had shot through the door three times and he said I might have killed the son of a bitch. . . . And then he handed me a .357 magnum pistol . (from) under his belt.

Bobby Griffith also identified the .357 magnum pistol previously made an exhibit to the State’s case as the gun he received from the defendant that night, and which the defendant presumably had retrieved from the floorboard of Kelsey Griffith’s car while Kelsey was out of his automobile. Bobby Griffith said that he inspected the gun at the time and found that three cartridges had been fired and three were unfired. He then transported the defendant to the Se-quatchie County Jail, arriving sometime just after midnight.

There were two witnesses called by the prosecution who testified to being with the defendant in the early evening hours of the same night. One of these witnesses had seen the defendant drinking beer. The other had not, but testified:

there was something wrong with him, I don’t know if he was drinking or what, but I knew there was something he mumble(d) . . . (he was) dozy ... his eyes was awful red. .

The other witness testified that the defendant was having great difficulty driving and that it appeared “his mind wasn’t right.” This witness admitted that he had told an agent for the Tennessee Bureau of Investigation that he thought the defendant was on “dope” that night, but said he didn’t see the defendant take any pills.

A .357 caliber bullet had been removed from a rear wall in the police department, and it was stipulated at trial that comparison tests run by a ballistics expert indicated this slug had been fired from the same pistol given by the defendant to Bobby Griffith on the night in question.

The defendant took the stand in his own behalf and, probably to the surprise of his attorney, denied having shot into the Whit-well jail, and initially denied ever having seen the .357 magnum pistol placed in evidence at trial. He testified that he had little or no memory of anything occurring between 8:00 P.M. on September 11 and 3:30 A.M. or so the next morning when he “came to (him)self”. He attributed his lack of memory to a blackout like those he frequently suffered, and said he had a headache earlier in the day, for which he had taken some pills. According to the defendant, he took “a half dozen each or more” of Valium 5 pills, Valium 10 pills and Librium pills, later described by an expert witness as addictive, tranquilizing drugs. The defendant testified that the pills had been prescribed for a nervous condition, and that he was supposed to take only three a day. By his count, he had taken at least 12 and possibly as many as 18 or more on the day in question. He could remember drinking no more than two beers during that day.

The defendant admitted being jailed some nine months prior to September 11, 1974, in the Whitwell jail, with a friend named Ott Higdon, the two of them having been arrested and held overnight for disorderly conduct and public drunkenness. On cross-examination he was asked about serving a penitentiary sentence in the state of Michigan. He denied this fact, and no objection was made to the question.

The main defense witness was Dr. James S. Cheatham, a psychiatrist of twenty-two years experience, with particular expertise in the area of criminal psychiatry. He had observed and examined the defendant over a total period of five hours on December 12, 1974, January 20, 1975, and February 17, 1975, the last date falling in the week immediately before the trial occurred. He testified that the defendant suffered from generalized arteriosclerosis, or hardening of the arteries, with some resulting eye and brain damage. The defendant had previously required arterial surgery in his leg for a clotting condition which was also the result of this disease. The doctor further testified:

it is obvious that Mr. Pyburn suffers from an organic brain syndrome which is an impairment of his mental functions due to physical factors, some physical disturbance of the brain . substantially the result of severe generalized hardening of the arteries (and) chronic alcoholism for about thirty years duration . . . (He is) poorly orientated as to time, place, circumstances, his intellectual processes are dull, his thinking is very concrete, his memory for past events is quite good, for intermediate events is fair and for recent events is very poor, for instance, Mr. Pyburn has never been able to comprehend my name. He is unable to relate to me accurately the date of the incident with which he is charged . . . (and) stated to me he could not exactly recall the events or the sequence of events on that date. He did recall that ... he had been drinking and had also taken a large quantity of medications which had been prescribed for him. . . . (H)e says the last thing he can remember was somewhere about 8:00 P.M., and that was of going to some friend’s residence to get the bow of the fiddle, and then he says he doesn’t remember anything until he came to about three o’clock the next morning. It is my opinion that this is a legitimate amnesia (common to persons suffering from severe arteriosclerosis).

The doctor concluded that on the night of the shooting the defendant was “insane and incompetent,” that he was unable to recognize the nature or quality of the act of which he was accused, and that he would not have had the “mental capacity to understand the meaning of the words he uttered or to make rational utterances concerning the alleged event . . . The doctor testified, however, that although the defendant continued to suffer from brain damage caused by arteriosclerosis and the effects of alcoholism on the occasions he was seen by the doctor in December, January and February, the defendant was not insane on these subsequent dates. Asked by the trial judge whether the defendant was unaware of what he was doing at the time of the shooting, or whether he was simply unable to recall it later, the doctor gave no conclusive answer, but attempted in his testimony to equate the two phenomena.

On the issue of evidentiary sufficiency, there is certainly overwhelming evidence in the record to support the conclusion that the defendant committed the act of which he is accused, despite his denial from the witness stand. The only substantial eviden-tiary question raised on appeal relates to the sufficiency of the State’s evidence to establish the defendant’s sanity at the time he committed this act.

Under well-settled Tennessee law, the presumption of sanity places the initial burden of showing insanity at the time of the commission of a crime upon the defendant. While the prosecution is not bound to establish the defendant’s sanity in the first instance, if the defendant’s or the State’s evidence raises a reasonable doubt as to the defendant’s sanity, the defendant is relieved of further proof upon that issue and the burden of proof shifts to the State to establish the defendant’s sanity beyond a reasonable doubt. Collins v. State, 506 S.W.2d 179 (Tenn.Cr.App.1973). We think the issue of the defendant’s sanity was sufficiently raised by the defendant’s case, primarily from the expert testimony of the psychiatrist, Dr. Cheatham. The burden therefore shifted to the State to establish the defendant’s sanity beyond a reasonable doubt, and the prosecution did so to the satisfaction of the jury. The issue of insanity being a question of fact for the jury, Spurlock v. State, 212 Tenn. 132, 368 S.W.2d 299 (1963), the jury’s verdict accredits the witnesses for the State and resolves all disputes in favor of the State’s theory. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). On appeal, the defendant has the burden of demonstrating the preponderance of the evidence in his favor, and this we think he has failed to do on the record before us.

The defendant in his brief takes the position that the lay testimony presented by the State should be ruled insufficient as a matter of law to rebut the expert testimony offered by the defendant, citing us to the dissent in Meade v. State, 484 S.W.2d 366 (Tenn.Cr.App.1972). But the dissent in Meade correctly notes that the “weight and value of expert testimony is for the jury and must be received with caution, and that where there is any conflict between expert testimony and non-expert testimony as to determinative facts, the jury is not bound to accept expert testimony in preference to other testimony and must determine the weight and credibility of each in light of all the facts shown in the case.” Id. at 371 (Oliver, J., dissenting); accord, Sparkman v. State, 469 S.W.2d 692 (Tenn.Cr.App.1970), Humphreys v. State, 531 S.W.2d 127, 131-32 (Tenn.Cr.App.1975). To adopt as conclusive the rule here urged by the defendant would be to usurp completely the function of the jury in determining the issue of insanity.

Of course, it is also settled law that a non-expert witness offered to establish the sanity of a person must show such acquaintance with that person and such opportunity of observing him as to enable the witness to form a definite opinion. Humphreys v. State, supra, at 135. This requirement would be especially compelling where, as here, the State offers only lay testimony in the face of expert testimony presented by the defense. But we think the facts here indicate that the lay witnesses were fully competent under the law to give opinions as to the defendant’s condition.

Furthermore, we think the record indicates that the expert’s testimony, while sufficient to shift the burden of proof to the State, failed to establish the defendant’s insanity at the time the crime occurred, but instead tended to establish that the defendant was voluntarily under the influence of both alcohol and narcotics. Great emphasis was placed by the psychiatrist on the defendant’s alleged amnesia, but under the law the professed inability of the defendant to remember the crime is not by itself proof of insanity. Burton v. State, 217 Tenn. 62, 394 S.W.2d 873 (1965); Sparkman v. State, supra, at 696-97.

The psychiatrist testified to four factors which he found to have caused the defendant’s mental impairment amounting to insanity at the time of the crime: (1) arterio-sclerotic disease and (2) chronic alcoholism, both of which contributed to brain damage; (3) the defendant’s alcoholic intake on the day in question, which the doctor opined was a “substantial amount;” and (4) the tranquilizing drugs taken by the defendant on that date. The doctor stated “conclusively that (the defendant’s) mental impairment, his mental disrangement was at that time a summation of all of these factors” (emphasis supplied). Quite obviously, the defendant was not insane in the doctor’s opinion when examined sometime after the crime because of the absence of the last two factors, i. e., the alcohol and drugs. We think that based on the psychiatrist’s testimony alone the jury was justified in finding that the defendant was intoxicated rather than insane at the time the crime occurred. There is ample other evidence in the record pointing to the same conclusion, and “where testimony as to the facts permits even an inference that the defendant was sane at the time of the offense charged, the jury is entitled to reject expert and lay opinion testimony to the contrary.” Brooks v. Rose, 520 F.2d 775, 778 (6th Cir.1975).

The law is well settled that voluntary drunkenness is no defense to a charge of second degree murder. Simpson v. State, 1 Tenn.Cr.App. 256, 437 S.W.2d 538 (1968). See also, Collins v. State, supra, at 184, involving facts virtually identical to the ones before us. We think the record clearly preponderates in the State’s favor on the issue of the defendant’s insanity, and we therefore find no error in the jury’s verdict nor in the trial court’s failure to direct a verdict on the issue of malice. See Simpson v. State, supra; Bostick v. State, 210 Tenn. 620, 360 S.W.2d 472 (1962); Bailey v. State, 479 S.W.2d 829 (Tenn.Cr.App.1972); Humphreys v. State, supra, at 132-33.

II

The second issue raised by this appeal involves the admissibility of three statements made by the defendant on the night of the shooting to Kelsey Griffith, to Bobby Griffith, and to an investigator from the local District Attorney’s office. The defendant complains that the three statements are inadmissible because he was incompetent at the time to make a valid confession, by reason of his insanity. We have already determined that the record preponderates against the defendant on the sanity issue. Furthermore, intoxication is not necessarily a bar to a valid confession. Williams v. State, 491 S.W.2d 862, 866 (Tenn.Cr.App.1972). A jury-out hearing was held as required by law, prior to the trial court’s ruling on the motion to exclude all statements made by the defendant on the basis of incompetency, and the court ruled that the statements were admissible. On appeal the record must preponderate against the ruling of the trial judge in order to support a finding of error. Wooten v. State, 203 Tenn. 473, 314 S.W.2d 1 (1958); May v. State, 4 Tenn.Cr.App. 555, 474 S.W.2d 172, 178 (1971). We think the defendant has failed to carry his burden on his point.

Next the defendant assigns as error the admission of the statements made to Bobby Griffith and to the State investigator on the grounds that the defendant’s Miranda rights were violated. As to the statement to Griffith, no prior Miranda warning was given the defendant, but none was required. The circumstances wholly fail to establish that the defendant was in custody and under interrogation. United States v. DeBose, 410 F.2d 1273 (6th Cir. 1969), cert. denied, 401 U.S. 920, 91 S.Ct. 906, 27 L.Ed.2d 823 (1971); Braziel v. State, 529 S.W.2d 501, 506-07 (Tenn.Cr.App.1975), and cases cited therein. The statement appears to have been volunteered, and the totality of the circumstances more closely approximates general on-the-scene questioning than it does custodial interrogation of one upon whom the investigation has focused.

The question presented by the introduction of the defendant’s statement to the State investigator raises a more difficult question under the Miranda standard. As the State’s brief points out, after arriving at the county jail in Dunlap, and before interrogation began, the defendant was advised of his rights under Miranda and executed a written waiver of those rights. In a regrettable lack of candor, however, the State’s brief fails to note that after answering a few questions the defendant apparently changed his mind about the waiver and asked for a lawyer. The investigator, ignoring the defendant’s thus revived Miranda right to have questioning cease until a lawyer was made available, continued interrogation of the defendant and elicited a statement tending to prove fairly conclusively that the defendant committed the shooting earlier that night. For a second time the defendant requested an attorney, and the transcript shows that he answered no further questions. It should be noted at this point that although the defendant’s statement on this occasion was somewhat more detailed than the admission which he had made earlier to Bobby Griffith, there was no factual variation in the two statements.

The prosecutor apparently recognized that the statement given at the jail was fatally tainted under Miranda and made no attempt to introduce or allude to it on direct. However, once the defendant took the stand and denied commission of the crime, and further denied any memory of making a statement at the Dunlap jail, the statement became admissible for purposes of impeachment. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). Before such a Miranda-tainted statement can be introduced, however, certain Harris-Hass requirements must be met: the statement attributed to the defendant by the prosecution is admissible only to impeach the defendant’s credibility, and the jury must be instructed that the statement can be considered only in passing on the defendant’s credibility and not as evidence of guilt. The problem here is that the trial court ruled the statement admissible not on the question of credibility, but on the issue of the defendant’s sanity. The judge then instructed the jury:

As I understand the testimony of this witness, members of the jury, it is to be in reference to a statement alleged or certain statements alleged to have been made by the defendant, and this testimony is being admitted only for one purpose and for one purpose only, and that is for consideration as to the question of sanity or insanity, and it’s not to be considered in any other respect. It’s (In?) reflecting on whether or not the defendant may or may not have committed (the crime?) itself, you’re to consider this statement only in determining whether or not the defendant was sane or insane at the time of the alleged criminal acts.

Undoubtedly the trial judge believed he was instructing the jury not to take the statement as evidence of defendant’s guilt or innocence, and made efforts in that direction to the extent of his reference to the actual commission of the crime. But the issue of the defendant’s sanity or insanity was clearly the determinative factor in establishing guilt or innocence, and thus it necessarily follows that under this instruction the statement could be used as evidence of the defendant’s guilt. We think this aspect of the charge, together with the court’s failure to restrict the use of the evidence to impeachment of the defendant’s credibility, constitutes error under Harris and Hass. We can find no authority for the trial court’s action in this case, with the exception of one Tennessee decision, Collins v. State, supra, at 186. But the Miranda violation in Collins which brought Harris into play fell under Footnote 37 of the Miranda opinion, and in view of the Tennessee Supreme Court’s recent decision in Braden et al. v. State, 534 S.W.2d 657 (1976), we decline to follow Collins here.

The question then becomes whether or not this error was harmless given the circumstances of the case. We conclude that it was.

The State did not introduce the entire statement in question upon cross-examination of the defendant, but alluded to it in laying the foundation for its later introduction. The next mention of a statement allegedly given by the defendant to the investigator was made by defense counsel upon direct examination of the psychiatrist, Dr. Cheatham. After the defense rested its case, the State introduced the investigator in rebuttal and, following the court’s cautionary instruction set out above, this witness testified to the circumstances and general content of the defendant’s statement to him. At this point in the trial, the State in its effort to discharge its burden of proving the defendant sane beyond a reasonable doubt had introduced abundant, clear and certain evidence that at the time of the offense the defendant was under the influence of alcohol and drugs. Lay witnesses had testified, as they were competent to do, to the defendant’s behavior, manner of speech, and mental comprehension shortly after the occurrence. Such facts have been recognized as “the best evidence of whether (the defendant) was or was not of rational mind at the time of the crime.” Mullendore v. State, 183 Tenn. 53, 191 S.W.2d 149, 151 (1945). Thus the evidence in the statement in question, if the jury wrongfully considered it, was no more than cumulative.

Our conclusion that the error was harmless is further buttressed by the fact that the first effort to tie the statement to the issue of insanity was made not by the State on cross-examination of the defendant (wherein the issue was properly confined to credibility alone), but by the defendant on direct examination of the psychiatrist. He was asked by defense counsel whether the fact that the defendant had given a detailed statement at the jail shortly after the event would alter his opinion as to the defendant’s competency. Thus the issue of what use could properly be made of this evidence was arguable foreclosed by the defendant’s “opening up” of the question. We think that, beyond a reasonable doubt, the overall record fails to demonstrate prejudice to the defendant arising from this assigned error.

In a final attack on the admissibility of the statement to the investigator, the defendant alleges a violation of T.C.A. § 40-2441 because the prosecutor failed upon timely demand to supply the defendant with a copy of the statement attributed to him at trial. The State argues that the confession became admissible upon rebuttal regardless of the dictates of § 40-2441. We do not necessarily read such an exception into the statute, but we do think that any error in admitting the statement was at most harmless, because of its thoroughly cumulative nature. See, e. g. Berry v. State, 523 S.W.2d 371 (Tenn.Cr.App.1974); O’Dear v. State, 516 S.W.2d 622 (Tenn.Cr.App.1974).

It then becomes pertinent to inquire whether the existence of two harmless errors in this record has the necessary effect of creating overall prejudice to the defendant. We conclude that it does not. The prosecution recognized the Miranda-tainted nature of the statement and knew the statement was inadmissible on direct. Probably in an effort to keep his cards close to his chest, a time-honored litigation tactic, the prosecutor decided not to supply the defendant with a copy of what he considered to be an inadmissible statement. We think this violates the spirit if not the letter of the statute, and that such a niggardly practice flies in the face of the announced trend toward more liberal discovery in this state. See, State v. Gaddis, 530 S.W.2d 64 (Tenn.1975); Proposed Rules of Tennessee Procedure, promulgated by the Supreme Court’s Commission on Rules of Practice and Procedure in Criminal Cases, R. 16. It also produces unnecessary litigation, especially where as here there was no new or inconsistent information in the statement. The prosecution had nothing to lose in supplying the statement, but correspondingly the defendant had nothing to gain. We think there was essentially one error here, which had both constitutional and statutory ramifications. We are satisfied that it did not effect the outcome of the trial.

Ill

The final issue raised on appeal involves an allegedly improper question put to the defendant by the prosecutor on cross-examination. Asked if he had ever served a penitentiary sentence in Michigan, the defendant replied in the negative. He now alleges prejudicial inference by the jury drawn from an implicit, unsubstantiated insinuation by the State. But because no objection was entered to the question, the record fails to disclose whether the inference could be substantiated by the prosecutor or not, and under the circumstances the State was bound by the defendant’s answer. In the absence of timely objection at trial, the defendant will not be heard to complain on appeal.

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

WALKER, P. J., and RUSSELL, J., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).