author: BROCK, Justice.

text:
    NEWSPAPER PRINTING CORPORATION, Tennessean Newspapers, Inc. and the Nashville Banner Publishing Company, Petitioners, v. Charles GALBREATH, Respondent.
    Supreme Court of Tennessee.
    May 7, 1979.

      Alfred H. Knight, III, Nashville, for petitioners; Willis & Knight, Nashville, of counsel.
    Charles Galbreath, pro se.
   OPINION

BROCK, Justice.

The plaintiff, Charles Galbreath, sought to purchase from the defendant newspapers, Tennessean Newspapers, Inc., and The Nashville Banner Publishing Company, and their jointly controlled publishing company, defendant Newspaper Printing Corporation, advertising space for publication of the following advertisement:

“West End Area — Lge. apt. 4 rms. 1 b.r., Cent, heat and a/c Drps. Shag cpts. frost free ref. gar. dis. ds. washer. $145 — 352-4066.”

The defendant, Newspaper Printing Corporation, to whom the proposed advertisement was submitted, refused to accept it in the foregoing form and agreed to publish it only after it was modified to read as follows:

“West End Area — Large apartment. 4 rooms. 1 bedroom. Central heat and air conditioning. Drapes. Shag carpet, frost free refrigerator. Garbage disposal. Dishwasher. $145. 352-4066.”

The action of the defendants prompted the plaintiff, Galbreath, to file this class action in his own behalf and on behalf of all others similarly situated, seeking relief by way of a mandatory injunction requiring the defendant newspapers and their publishing company to “print all advertising, not violative of any law, as composed by the author of same upon the payment or offer of payment of the usual rate,” and requiring “that the defendant cease censoring and modifying advertising copy submitted to it for publication by the plaintiff, Charles Gal-breath, and all others similarly situated.” The complaint also prayed for damages for “the excessive costs incurred because of the arbitrary, invalid and unconstitutional acts of the defendants,” and for an award of reasonable attorneys fees and costs.

The plaintiff alleges that the defendants “. . . have a monopoly in the metropolitan area of Nashville, Tennessee, in that only through the latter defendant [Newspaper Printing Corporation] may advertisement in newspapers with large daily circulations be published. That because of this monopoly there is no competition and the plaintiff and others similarly situated have no recourse but to submit to the excessive charges resulting from the arbitrary refusal of the Newspaper Printing Corporation to accept advertising copy utilizing the universally recognized economical method of reducing advertising costs by using abbreviations recognized in the trade of the business involved.
“That the only reason the defendants refuse to permit liberal use of abbreviations in copy for advertisement is to unjustly enrich themselves at the expense of the advertiser consumer who, because of the monopoly enjoyed by the defendants, has no other source of advertisement in large daily newspapers in the area of the plaintiff’s business activities.”

The plaintiff further alleges that the refusal of the defendants to publish his tendered advertisement, as above quoted, was “wrongful and arbitrary” and “. forced the plaintiff against his will to allow the advertisement to be censored and changed so as to eliminate the economical use of abbreviations as customarily permitted in other advertising markets of the nation in the newspapers, and, forced him to choose between not advertising his property or incurring the substantial additional expense of having the advertisement published without abbreviations so as to require 33½ percent more space and resulting costs.”

In stating his legal theory, plaintiff alleges that the policy of the defendants in refusing to accept advertisements containing abbreviations is unreasonable, capricious and arbitrary . . and violative of the First Amendment to the Constitution of the United States and Art. I, § 19, of the Constitution of Tennessee, in that they restrict freedom of the press and because said policy and standards being direct outgrowths of a monopoly the resulting unfair competition is violative of Art. I, § 22, of the Constitution of Tennessee.”

The defendants filed a motion for summary judgment coupled with a motion to dismiss the complaint upon the ground that it failed to state a claim upon which relief could be granted. The Chancellor sustained the motion to dismiss, holding that the complaint failed to state a cause of action. Upon appeal, the Court of Appeals reversed the Chancellor’s order of dismissal and remanded the case for trial on the merits. We granted the petition for certiorari filed by the defendants.

I

The publication of a newspaper is strictly the private business of its publisher, and it has been aptly observed that a publisher “in publishing a paper, assumes no ‘office, trust, or station’ in a public sense, nor does he enter into any public or contractual relation with the community at large. The rights and liabilities of newspaper publishers arising out of contracts are therefore governed by the rules applicable to contracts generally.” 58 Am.Jur.2d Newspapers, Periodicals, Etc. § 20 (1971). Moreover, it is well settled in this country that a newspaper publisher is under no legal obligation to sell advertising to all who apply for it, and is not required to accept for publication any advertisement, although in proper form, even though the charge which the newspaper makes for publishing like advertisements is tendered. Burke v. Kingsport Publishing Corporation, 377 F.Supp. 221, aff’d 497 F.2d 923 (1974); In re Louis Wohl, Inc., 50 F.2d 254 (Mich.App.1931); J. J. Gordon, Inc. v. Worcester Telegram Publishing Co., 343 Mass. 142, 177 N.E.2d 586 (1961); Bloss v. Federated Publications, Inc., 5 Mich.App. 74, 145 N.W.2d 800 (1966), aff’d 380 Mich. 485, 157 N.W.2d 241 (1968); Camp-of-the-Pines, Inc. v. New York Times Co., 184 Misc. 389, 53 N.Y.S.2d 475 (1945); Approved Personnel, Inc. v. Tribune Company, 177 So.2d 704, 18 A.L.R.3d 1277 (Fla.App.1965); Shuck v. Carroll Daily Herald, 215 Iowa 1276, 247 N.W. 813, 83 A.L.R. 975 (1933); Friedenberg v. Times Pub. Co., 170 La. 3, 127 So. 345 (1930); Mid-West Elec. Coop. v. West Texas Chamber of Comm., 369 S.W.2d 842 (Tex.Civ.App.1963); Modla v. Tribune Publishing Company, 14 Ariz.App. 82, 480 P.2d 999 (1971).

Newspaper publishers may refuse to publish whatever advertisements they do not desire to publish and this is true even though the newspaper in question may enjoy a virtual monopoly in the area of its publication. Shuck v. Carroll Daily Herald, supra; J. J. Gordon, Inc. v. Worcester Telegram Publishing Co., supra; Mid-West Elec. Coop. v. West Texas Chamber of Comm., supra; 66 C.J.S. Newspapers § 21c (1950). Cf. Uhlman v. Sherman, 31 Ohio Dec. 54, 22 Ohio N.P.,N.S., 225, Herald Company v. Seawell, 472 F.2d 1081 (Colo.App.1972). The publisher of a newspaper has the right to condition its acceptance of advertising upon its being in a form satisfactory to the newspaper and its being placed in a classification which, in the judgment of the newspaper, will result in a truthful and convenient disclosure to its readers. In short, since it may refuse to publish at all, it may require that advertisements submitted to it for publication comply with such rules and regulations as the publishers deem proper.

II

The plaintiff asserts that the freedom of the press provisions of the First Amendment to the Constitution of the United States and of Art. I, § 19, of the Constitution of Tennessee impose a duty upon the defendants and create a correlative right in the plaintiff to publish his advertisements containing abbreviations, as hereinabove quoted. This assertion of the plaintiff is unsupported by either authority or reason. Indeed, the command of those constitutional provisions requires the opposite conclusion, i. e., freedom of the press means freedom not to publish, as well as freedom to publish, as the publisher sees fit. As noted by the Iowa court in Shuck v. Carroll Daily Herald, supra, if a newspaper may be required to accept an advertisement, it may also be compelled to publish a news item or an editorial.

III

The attempt by the plaintiff to rely upon the anti-monopoly provision of our Constitution is quite obscure; consequently, we are not certain what his theory is. He avers that the policy of the defendants in refusing to accept advertisements containing abbreviations is “unreasonable, capricious and arbitrary” and that

“. . . said policy and standards, being direct outgrowths of a monopoly, the resulting unfair competition is violative of Art. I, § 22 of the Constitution of Tennessee.”

He also alleges that the defendants

“. . . have a monopoly in the metropolitan area of Nashville, Tennessee, in that only through the latter defendant (Newspaper Printing Corporation) may advertisements in newspapers with large daily circulations be published. That because of this monopoly there is no competition and the plaintiff and others similarly situated have no recourse but to submit to the excessive charges resulting from the arbitrary refusal of the Newspaper Printing Corporation to accept advertising copy utilizing the universally recognized economical method of reducing advertising costs by using abbreviations recognized in the trade of the business involved.”

Both the Chancellor and the Court of Appeals have treated the complaint as alleging a violation of the Federal antitrust laws, a construction which we consider to be generous.

The trial court held that the practice of the defendants in jointly refusing to accept for publication advertisements containing abbreviations such as that tendered by the plaintiff was authorized by the Newspaper Preservation Act, 15 U.S.C., §§ 1801, et seq., thus furnishing no basis for an action by the plaintiff. Section 2 of that Act provides:

“Congressional declaration of policy
“In the public interest of maintaining a newspaper press editorially and reportorially independent and competitive in all parts of the United States, it is hereby declared to be the public policy of the United States to preserve the publication of newspapers in any city, community, or metropolitan area where a joint operating arrangement has been heretofore entered into because of economic distress or is hereafter effected in accordance with the provisions of this chapter [15 U.S.C.S., §§ 1801, et seq.].”

Also pertinent here is § 1802(2) which provides:

“As used in this chapter [15 U.S.C.S., §§ 1801, et seq.]—
******
“(2) The term ‘joint newspaper operating arrangement’ means any contract, agreement, joint venture (whether or not incorporated), or other arrangement entered into by two or more newspaper owners for the publication of two or more newspaper publications, pursuant to which joint or common production facilities are established or operated and joint or unified action is taken or agreed to be taken, with respect to any one or more of the following: printing; time, method, and field of publication; allocation of production facilities; distribution; advertising solicitation; circulation solicitation; business department; establishment of advertising rates; establishment of circulation rates and revenue distribution; Provided, That there is no merger, combination, or amalgamation of editorial or reportorial staffs, and that editorial policies be independently determined.”

The Court of Appeals, while agreeing that the Newspaper Preservation Act applies, was of the opinion that the complaint alleged predatory pricing or practice which was not authorized by that Act. It relied upon § 4(c) of the Act which provides: “Antitrust exemption[s]

******
“Nothing construed in the chapter [15 U.S.C.S., §§ 1801, et seq.] shall be construed to exempt from any antitrust law any predatory pricing, any predatory practice, or any other conduct in the otherwise lawful operations of a joint newspaper operating arrangement which would be unlawful under any antitrust law if engaged in by a single entity. Except as provided in this chapter, no joint newspaper operating arrangement or any party thereto shall be exempt from any antitrust law.”

The Court of Appeals further concluded that whether the joint advertising policy of the defendants constituted predatory pricing or practice presented a factual issue which required that the motion for summary judgment be denied. Accordingly, that court reversed the judgment of the trial court and remanded for a trial on the merits.

The refusal of a newspaper to accept tendered advertising because it fails to meet the standards required by the publisher, whether acting singly or jointly, does not amount to “predatory pricing or practice,” as those terms are used in the antitrust laws. As used in such laws, “predatory” refers to pricing or other action aimed at competitors rather than the “gouging” of consumers. See, International Air Ind., Inc. v. American Excelsior Co., 517 F.2d 714, 722 (5th Cir. 1975).

It has been held that the rejection by a newspaper, acting singly, of advertising because it does not meet the publisher’s requirements does not violate the antitrust laws. Staff Research Associates, Inc. v. Tribune Company, 346 F.2d 372 (7th Cir. 1965).

It follows, then, that the joint action of the defendants in refusing to accept such advertising does not come within the exception contained in § 4(c) of the Newspaper Preservation Act, above quoted, it being one which would not be unlawful if engaged in by a single entity.

We, therefore, conclude that the Court of Appeals erred in reversing the judgment of the Chancellor and in remanding this case for trial on the merits. The judgment of the Court of Appeals is reversed and that of the trial court is affirmed. Costs incurred in this Court will be taxed against the respondent.

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

      . As pertinent here, Art. I, § 19, of the Constitution of Tennessee provides:
      “That the printing presses shall be free to every person to examine the proceedings of the Legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.”
      Art. I, § 22, of the Constitution of Tennessee provides:
      “That perpetuities and monopolies are contrary to the genius of a free State, and shall not be allowed.”

      . Of course, freedom of the press, like other freedoms, is not absolute. Thus, the constitutional rights of others, such as the right to equal treatment under the equal protection clause of the Fourteenth Amendment, require the recognition of narrow exceptions to the otherwise complete freedom of the publisher to publish or refuse to publish as he pleases. See, Pittsburgh Press Co. v. Pittsburgh Com’n on Human Rel., 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973); United States v. Hunter, 459 F.2d 205 (4th Cir. 1972); Civil Rights Act of 1968, 42 U.S.C. § 3604(c). Nor does freedom of the press authorize the newspaper to “attempt to monopolize” in violation of the Sherman Antitrust Act. Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951).

      . Since both parties and both lower courts have treated the case as one alleging a violation of the Federal antitrust laws, we confine our discussion to that theory and do not determine whether the anti-monopoly provision of Art. I, § 22, of the Constitution of Tennessee is self executing and may furnish the basis for a civil action by one who claims that another has violated that provision. See, The Charles River Bridge v. The Warren River Bridge et al., 36 U.S. 420, 11 Pet. 420, 9 L.Ed. 773 (1837); Leeper v. State, 103 Tenn. 500, 53 S.W. 962 (1899); 58 C.J.S. Monopolies §§ 1, 27 (1948).


source: Caselaw Access Project

license: Public Domain

text:
    Henry Palmer ROGERS, Petitioner, v. Charles ANDERSON, Honorable Fate Thomas, Aetna Casualty and Surety Company, David H. Miller, Metropolitan Government of Nashville, Davidson County, Tennessee, and Ed Little, Respondents.
    Supreme Court of Tennessee.
    May 7, 1979.
    Seth W. Norman, Nashville, for petitioner.
    Frank Grace, Jr., Willis & Knight, Nader Baydoun, Nashville, for respondents.
   OPINION

BROCK, Justice.

Plaintiff, Henry Palmer Rogers, seeks a summary judgment under T.C.A., § 25-301, against Fate Thomas, Sheriff of Davidson County, for failure to return an execution within the time provided by law.

Plaintiff obtained a judgment by default against the original defendant, Charles Anderson, in the Circuit Court of Davidson County for the sum of $27,000.00. The circuit court clerk issued an execution for the judgment and caused the same to be delivered to the sheriff. The sheriff entrusted to a deputy, Ed Little, the responsibility of making a return on the execution by the return date, January 8, 1975. The deputy sheriff failed to do so and on December 18, 1975, Mr. Rogers filed a motion for summary judgment pursuant to T.C.A., § 25-301, which provides:

“25-301. Motion by plaintiff against executive officer. — Judgment by motion may be had against any sheriff, coroner, or constable, or other executive officer, to whom an execution is directed and by him received, for the amount due upon such execution, and twelve and one-half per cent (12½%) damages, in the following cases:
“(1) When he fails to make due and proper return of such execution.
“(2) When he makes a false or insufficient return.
"(3) When he fails to pay over money collected on such execution.”

The trial judge heard the motion and issued a memorandum opinion sustaining it and rendered judgment against Sheriff Thomas and surety in the aggregate amount of $30,937.50, $27,500.00 plus a penalty of 12V2%, in accordance with T.C.A., § 25-301.

The Court of Appeals, relying on T.C.A., §§ 8-831 and 8-832, reversed the judgment and dismissed the action. We granted cer-tiorari.

T.C.A., § 8-810, sets out duties imposed upon the sheriff. Subsection (5) provides:

“To execute all writs and other process to him legally issued and directed, within his county, and make due return thereof, either by himself or his lawful deputy.” (Emphasis added.)

In Ivy v. Osborne, 152 Tenn. 470, 279 S.W. 384 (1926), this Court held that the sheriff and the sureties on his bond are liable for losses and wrongs caused by a deputy sheriff acting by virtue of his office. The Court recognized that such liability was grounded in the common law. Since the Ivy decision, however, the legislature has enacted T.C.A., §§ 8-832 — 8-834, which provide as follows:

“8-832. Liability for wrongs of deputies —Limitation.—No sheriff, whether elected or appointed, nor any surety on his bonds, shall be liable for any wrongs, injuries, losses, damages or expenses incurred as a result of any act or failure to act on the part of any deputy appointed by said sheriff, whether said deputy is acting by virtue of office, under color of office or otherwise. (Emphasis added.) “8-833. Suits against counties for wrongs of deputies. — Anyone incurring any wrong, injury, loss, damage or expense resulting from any act or failure to act on the part of any deputy appointed by the sheriff may bring suit against the county in which the sheriff serves; provided that the deputy is, at the time of such occurrence, acting by virtue of, or under color of office.
“8-834. Waiver of governmental immunity — Limit.—The governmental immunity of the county in which the said sheriff serves is waived for purposes of § 8-833, but to an extent not in excess of the amount of the surety bond executed for that county’s sheriff pursuant to § 8-803.”

Clearly, T.C.A., § 8-832, completely absolves the sheriff and his surety of liability for damages caused by the sheriff’s deputies whether grounded upon their acts or failures to act. Of course, the sheriff would not be absolved of liability for damages caused by his own personal acts or failure to act with respect to duties which he assumes personally to perform. Since the enactment of T.C.A., § 8-832, the remedy provided by T.C.A., § 25-301, is no longer available against a sheriff for the act or failure to act of a deputy to whom the sheriff has entrusted the service and return of an execution directed to the sheriff. See O’Neal v. DeKalb County, Tenn., 531 S.W.2d 296 (1975); Grundy County v. Dyer, Tenn., 546 S.W.2d 577 (1977); Sandlin v. Pearsall, 427 F.Supp. 494 (E.D.Tenn.1976).

It was the deputy sheriff, Ed Little, not Sheriff Thomas, who undertook the service and return of the execution in this case; his failure to make return within the time required by statute was a “failure to act” for which the sheriff and his surety are absolved of liability by T.C.A., § 8-832.

The judgment of the Court of Appeals, reversing the judgment of the trial court and dismissing the claim against the sheriff and his surety, is affirmed. Costs are taxed against the petitioner.

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


author: FONES, Justice.

text:
    ARGONAUT INSURANCE COMPANY, Appellant, v. Juanita V. WILLIAMS, Appellee.
    Supreme Court of Tennessee.
    May 7, 1979.
    William A. Simms, Arnett, Draper & Ha-good, Knoxville, for appellant.
    Glen R. Claiborne, Daniel, Duncan & Claiborne, Thomas M. Cole, Daniel, Duncan & Claiborne, Knoxville, for appellee.
   OPINION

FONES, Justice.

In this workmen’s compensation case, defendant insurance carrier, Argonaut Insurance Company, has appealed from the trial court’s award of fifty percent permanent partial disability to the body as a whole to plaintiff, Juanita V. Williams, for injuries received while in the course of her employment as a nurse’s aid at Blount Memorial Hospital. Defendant insists no material evidence exists upon which to base the award and that the limitation of time provisions of T.C.A. § 50-1003 bar the cause of action. We hold that there is material evidence to support the conclusions of the trial court on both issues, and affirm its judgment.

Plaintiff, age fifty-six with five years experience at the hospital, averred that on or about December 10, 1974, she was injured while pulling a bed with a heavy traction unit out of an intensive care ward, at which time she felt a “little ache.” Although finishing her work shift that day, she was unable to get out of bed the following morning. She consulted her personal physician, Dr. Mandrell, on December 16, and he diagnosed a lumbar back strain, ordered lumbar spine x-rays, prescribed medication and told her to stay out of work for two weeks. At a December 31 followup visit, Dr. Mandrell evaluated the x-rays, which showed “mild osteoarthritis in the anterior margins of the mid- and lower lumbar vertebrae,” and he told plaintiff to resume light work.

Following the December injury, plaintiff experienced intermittent episodes of pain, and as a result of a May 1975 lifting incident, missed two weeks of work. After a May 16 examination, Dr. Mandrell changed his diagnosis to degenerative joint disease, and he referred plaintiff to Dr. Smalley, an orthopedic surgeon, who in a June 17 examination diagnosed lumbosacral sprain and mild osteoarthritis of the lumbar spine. On June 18, 1975, plaintiff saw Dr. Phelan, employed by the hospital in occupational medicine, who allowed plaintiff to return to work based primarily on Dr. Smalley’s recommendation. She again saw Dr. Phelan in June, July and August 1976, at which time Dr. Phelan prescribed physical therapy, recommended that she continue to see Dr. Smalley and advised that she not return to work. Plaintiff went to see Dr. Smalley on July 16, 1976, and Dr. Belknap on July 22, 1976, who conducted a limited orthopedic examination and made a prognosis of continued disability. Plaintiff has not worked at the hospital since July 1976, and continued to see Drs. Smalley, Belknap and Phe-lan after filing her lawsuit.

Plaintiff filed suit on September 6, 1976, against Aetna Insurance Company, the current insurance carrier, and then amended her complaint to include defendant, Argonaut Insurance Company, the carrier at the time of the December 1974 injury.

Defendant asserts that no material evidence exists to support a permanent partial disability award. It is familiar law in workmen’s compensation cases that it is not the province of this Court to determine if the evidence preponderates in favor of the award, but only to determine from the record whether there is any material evidence upon which the trial court could have made its findings. E. g., Trane Co. v. Morrison, 566 S.W.2d 849, 851 (Tenn.1978). As an exception to this general rule, however, we have recognized that the permanency or causation of a compensable injury must be established by competent expert medical testimony. E. g., Floyd v. Tennessee Dickel Distilling Co., 225 Tenn. 65, 68, 463 S.W.2d 684, 686 (1971).

The trial court made the following factual findings:

“I think the plaintiff, Juanita Williams, who was an employee admittedly of Blount Memorial Hospital, suffered an injury on or about December 11th, 1974, which arose out of and in the course of her employment, a lumbar strain or low back injury, which continued to haunt her from then until now; I think that is the only injury she suffered; I think she still suffers from that injury, arthritis not withstanding. . . . ”

This Court is bound by those findings if the record contains any material evidence to support them. Doctor Belknap deposed, “I believe that the disability actually began with the original injury of 1974.” Although a finding cannot be predicated on medical testimony based upon subjective complaints alone, such is not the case here. See Reynolds v. Liberty Mut. Ins. Co., 496 S.W.2d 890 (Tenn.1973). Doctor Belknap took into consideration not only the history related to him by plaintiff, but also past medical records, the course of symptoms and the tests he performed. The deposition of Dr. Phe-lan, who examined plaintiff over a two-year period, establishes without question the permanency of plaintiff’s injury, for he assessed a fifteen percent permanent partial disability. Once the causation and permanency of an injury has been established by expert medical testimony, the trial judge may consider “many pertinent factors, including job skills, education, training, duration of disability, and job opportunities for the disabled, in addition to the anatomical disability testified to by medical experts.” Employers Ins. Co. of Ala. v. Heath, 536 S.W.2d 341, 343 (Tenn.1976). Hence, there is material evidence to support the trial court’s findings, both of causation and permanency. These findings are no less material because they are based upon the depositions of separate physicians rather than a single physician.

Defendant insists that the action is time-barred under T.C.A. § 50-1003 because the compensation claim was not filed within one year after the accident occurred or after voluntary payments of compensation ceased.

Doctor Phelan was employed and paid by plaintiff’s employer, the Blount Memorial Hospital. The medical services provided by Dr. Phelan to plaintiff, in the circumstances of this case, constitute “voluntary payments of compensation” within the tolling provisions of T.C.A. § 50-1003. Norton Co. v. Coffin, 553 S.W.2d 751 (Tenn.1977); Universal Underwriters Ins. Co. v. A. J. King Lumber Co., 553 S.W.2d 749 (Tenn.1977); Reed v. Genesco, Inc., 512 S.W.2d 1 (Tenn.1974); Fields v. Lowe Furniture Corp., 220 Tenn. 212, 415 S.W.2d 340 (1967).

The trial court found that Dr. Phelan consulted with the plaintiff from December 11, 1974 through October 5, 1976. This finding is partly in error because he had been employed by the hospital only since June 1,1975, and first saw plaintiff on June 18,1975, after she had visited Drs. Mandrell and Smalley between her December 1974 injury and that date. Plaintiff did not see a doctor again until June 3, 1976, at which time she again consulted Dr. Phelan. Thus, it is necessary to determine whether the visits to Dr. Phelan tolled the one-year statute of limitations because they amounted to the voluntary payments of compensation under the savings proviso of T.C.A. § 50— 1003.

In Webb v. Rossville Home & Auto Supply Co., 483 S.W.2d 579, 581 (Tenn.1972), we held, “the payment of medical expenses by the employer for the physical examination of employee, made for the sole purpose of evaluating the alleged injuries, if any, the employee receiving no medical treatment or medicine, as a result therefor, does not operate to toll the statute of limitations. .” In the case at bar, the trial judge ruled that Dr. Phelan provided treatment to plaintiff, and we find material evidence to support his conclusion. Doctor Phelan was engaged in the practice of occupational medicine, which he described as “medicine supplied to people working.” During the 1976 visits, plaintiff testified, Dr. Phelan prescribed physical therapy and the use of a bed board. Doctor Phelan’s own deposition, furthermore, establishes that during an August 17, 1976, visit, he told plaintiff to see Dr. Smalley again for further evaluation of her injuries. Under these circumstances, the evidence furnishes support for the trial judge’s determination that the visits to Dr. Phelan were not mere back-to-work physical examinations and that in fact he had provided medical treatment. Since the Webb rule does not apply to the facts as found by the trial court, we must find that these visits were the equivalent of voluntary payments of compensation during the periods in question and plaintiff’s suit on September 6, 1976, was not barred by the statute of limitations.

The judgment of the trial court awarding fifty percent permanent partial disability is affirmed. Costs are adjudged against defendant.

COOPER, BROCK and HARBISON, JJ., and HUMPHREYS, Special Justice, concur.


author: HENRY, Chief Justice.

text:
    Ronnie L. BOWERS, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY and Frosty Morn Meats, Appellees.
    Supreme Court of Tennessee.
    May 7, 1979.

      Paul D. Welker, Clarksville, for appellant.
    George B. McGugin, Nashville, for appel-lees.
   OPINION

HENRY, Chief Justice.

In this workmen’s compensation case, plaintiff Bowers appeals from the Chancellor’s denial of benefits. We affirm.

I.

Appellant Ronnie Bowers was employed as a jack operator at appellee Frosty Morn’s plant. His duties involved strenuous lifting and bending in a cold (28°-32°), wet and grimy area. The employees wore heavy clothing and coats for warmth, but their clothing usually became saturated with water in the course of the day.

The medical proof establishes that because Bowers is a diabetic, he is more susceptible to infections. The disability for which he is claiming workmen’s compensation benefits arises from a staphylococcal infection that manifests itself in a boil on his knee. The infection had appeared in other parts of his body, causing him to miss several days of work in September and October. Although Bowers experienced some stiffness in his knee, it was functional after a weekend of rest.

On Monday, November 3, Bowers reported for work at 5:00 a. m. By mid-morning, however, the knee had swollen to the point that he had to split his pants leg to relieve the pressure. He then notified his supervisor that he was leaving work to see his physician, Dr. Ross, who wrapped the knee after applying a salve. When his knee had not improved the following day, he went to his wife’s physician, Dr. Smith. Dr. Smith treated him with antibiotics and told him to stay in bed. After three weeks, the knee ruptured, and Bowers was confined to bed for three months. Since that time, he has been unable to perform heavy work, to stand for long periods of time, or to find another job.

II.

Bowers claims that the cold, wet, and grimy conditions at Frosty Morn caused or aggravated the staphylococcal infection and produced the disability to his knee. The Chancellor ruled that:

the two bars to recovery to the petitioner are: (1) There is no certainty either in the mind of the petitioner or from the proof when the infection (to the knee of Ronnie Bowers) began. There is no question that it began while he was employed at Frosty Morn, but the question of whether it began or was contracted while on the job is a matter of speculation. (2) The doctor’s testimony tying in the infection to the scene of employment was only tentative.

The scope of review in workmen’s compensation cases is limited to determining whether there is any evidence to support the trial court’s judgment. Continental Insurance Co. v. Dowdy, 560 S.W.2d 619 (Tenn.1978). There is material evidence to support the Chancellor’s ruling that Bowers did not contract the infection at work.

At oral argument the parties disagreed whether the Chancellor had considered appellant’s claim that the environment at Frosty Morn had aggravated Bowers’ condition. The Chancellor’s Order states:

It is Complainant’s theory that as a result of working in the unsanitary conditions at his place of employment he contracted a staph infection on his knee. Because he is a diabetic this infection was so severe that it caused him to incur a permanent disability of the infected leg.

Although the Chancellor apparently did not consider whether the “unsanitary conditions” aggravated the infection, his failure to do so was proper. First, there was no medical evidence establishing that the working conditions aggravated the infection. All the testimony focused on whether the infection was contracted at work and as a result of the working environment. As noted above, there is material evidence to support the finding that Bowers did not contract the infection at work.

Our cases recognize that “[w]hen an employer employs a workman he takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not hurt or bother a perfectly normal, healthy person.” Swift and Co. v. Howard, 186 Tenn. 584, 591, 212 S.W.2d 388, 391 (1948). The Globe Co. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253 (1968); Blalock v. Williams, 483 S.W.2d 578 (Tenn.1972).

This theory, however, cannot be applied to allow recovery under the facts presented in the instant case. In cases allowing recovery on the basis of aggravation, the disability was incurred when the employee’s pre-existing condition was aggravated or accelerated by strenuous working conditions or some work-related trauma. See American Precision, Inc. v. Ottinger, 562 S.W.2d 818 (Tenn.1978); Laminite Plastics Mfg. v. Greene, 561 S.W.2d 458 (Tenn.1978); Globe Co., Inc. v. Hughes, supra. In the instant case, however, Bowers was unable to establish that the infection producing the disability was work-related.

Having employed Bowers with a pre-existing weakened condition (diabetes), which generally made Bowers more susceptible to infections, Frosty Morn assumed the risk that Bowers might contract an infection at work from conditions that would not affect a completely healthy employee. The company, however, cannot be held liable for aggravation of an infection that Bowers contracted from some source other than work and which has not been shown to be employment-related. Since there is material evidence to support the finding that the infection was contracted from some source other than work, possible aggravation of the infection by the cold, wet, and grimy working environment is not a compensable “injury by accident arising out of and in the course of employment” within the meaning of § 50-902, T.C.A.

Appellee Frosty Morn has requested the award of damages for a frivolous appeal pursuant to § 27 — 124, T.C.A. Having considered the issues raised in this appeal, the Court finds that the motion is not well taken.

Accordingly, the judgment of the trial court is affirmed and appellee’s request for damages is denied.

The costs are taxed against appellant.

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


author: DAUGHTREY, Judge.

text:
    Jesse James JOHNSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 3, 1978.
    Certiorari Granted by Supreme Court Dec. 29, 1978.
    Certiorari Dismissed by Supreme Court April 16, 1979.

      Robert S. Peters, Winchester, for appellant. .
    Brooks McLemore, Jr., Atty. Gen., Robert L. DeLaney, Asst. Atty. Gen., Nashville, J. William Pope, Jr., Dist. Atty. Gen., Pike-ville, Mike P. Lynch, Asst. Dist. Atty. Gen., Winchester, for appellee.
   OPINION

DAUGHTREY, Judge.

The defendant-appellant, Jesse James Johnson, was indicted and tried on a charge of first degree murder. The jury found him guilty of that offense, and, having been erroneously instructed by the trial judge that the minimum penalty for first degree murder was twenty years, the jury set Johnson’s sentence at twenty years in the state penitentiary.

On appeal the defendant raises multiple assignments of error challenging the sufficiency of the evidence to support the verdict, the validity of the juvenile court’s transfer order which precipitated the indictment in this case, and the trial court’s failure to suppress evidence of the defendant’s statements to police, as well as the imposition of a penalty below the minimum authorized by statute for the offense of first degree murder. We find no reversible error with regard to the first three assignments. However, because the verdict included an unauthorized punishment, it must be considered a nullity, and the judgment entered on that verdict must therefore be reversed and the case remanded for a new trial.

In his instructions to the jury the trial judge charged:

If you find the defendant guilty of murder in the first degree the law provides that he shall be imprisoned in the penitentiary for life or a term not less than twenty (20) years.

This charge is erroneous on its face, because the penalty applicable at the time of the offense was life or some period of time “over twenty (20) years.” Collins v. State, 550 S.W.2d 643, 646 (Tenn.1977), construing T.C.A. § 39-2405. In its brief the State acknowledges the existence of this error, but suggests that the Court should modify the judgment to reflect the defendant’s conviction of second degree murder and thus permit the twenty year sentence to stand. The State asserts that such a procedure is authorized by Wattingham v. State, 37 Tenn. 64 (1857).

In Wattingham the defendant had been indicted for grand larceny, and the jury found him guilty “in manner and form as charged in the indictment.” However, the penalty fixed by the jury was below the minimum authorized by statute for grand larceny. The Court recognized the error but said that it was “formal merely, and cannot be made available for the prisoner.” Although the Wattingham court was apparently prepared to reduce the judgment to petit larceny, they instead reversed and dismissed the case on totally unrelated grounds.

Some dozen years later, the Tennessee Supreme Court was again faced with a verdict fixing punishment at less than the minimum authorized by statute. In Murphy v. State, 47 Tenn. 516 (1870), the Court declined to follow the dictum in Wattingham, distinguishing that earlier case by noting that there were no grades of offense in Murphy, as there had been in Wattingham. The unauthorized penalty was a nullity, the Murphy court held, upon which no valid judgment could be pronounced.

Still later, in Mayfield v. State, 101 Tenn. 673, 49 S.W. 742 (1899), the Court reviewed a homicide conviction involving a penalty for voluntary manslaughter below that authorized by statute. The Mayfield Court, while noting the existence of the language in Wattingham (which might have been interpreted to allow a reduction of the conviction to involuntary manslaughter), apparently determined not to follow the Watting-ham dictum. Instead they held, as they had in Murphy, that the verdict was a nullity. See also State v. Ragsdale, 78 Tenn. 671 (1887).

Later cases are consistent with the holdings in Murphy, Mayfield, and Ragsdale. See, e. g., Daniels v. State, 176 Tenn. 181, 184, 140 S.W.2d 148, 149 (1940) (dictum) (fine below the minimum fixed by statute results in a void verdict); Jenkins v. State, 509 S.W.2d 240, 247 (Tenn.Crim.App.1974) (verdict fixing punishment below the statutory penalty is a nullity); Jones v. State, 526 S.W.2d 130, 133-34 (Tenn.Crim.App.1975) (twenty year punishment is below statutory minimum for first degree murder, and therefore trial court properly instructed jury to reconsider, because verdict as first reported would be void and no valid judgment could be pronounced thereon).

Thus it appears that in all the Tennessee cases after Wattingham which deal with this kind of error, the courts have consistently held the erroneous verdict to be void and have reversed the judgment, sending the case back for retrial. This is especially true in those cases where the unauthorized verdict is the result of an incorrect charge by the trial court. See, e. g., Bowmer v. State, 157 Tenn. 124, 130, 6 S.W.2d 326, 327 (1928) in which the Supreme Court held that where the “trial judge, by the instruction given, caused the jury to assess punishment not authorized by the statute, the judgment must be reversed and the cause remanded”; see also, Judkins v. State, 224 Tenn. 587, 458 S.W.2d 801 (1970).

Even in the absence of controlling authority, if we were to undertake reduction of the offense to second degree murder, the twenty year sentence could not be permitted to stand; rather, the case would have to be remanded for a penalty hearing, unless the State agreed to accept the minimum penalty authorized by statute for the lesser grade of the offense (here, ten years). See generally Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738 (1956). Furthermore, we think the case is much too serious in nature to warrant such a reduction in the absence of any direct authority permitting modification under these circumstances. The record makes out a clear case of first degree murder, and we have no doubt that this is the offense for which the jury intended to inflict punishment. Their unsuccessful attempt to fix the minimum penalty can probably best be explained by the defendant’s young age (he was 17 at the time of the offense). The facts show that he had threatened the victim, his uncle, just a week prior to this offense. The subsequent dispute that led to the victim’s murder arose over a bottle of gin which apparently belonged to the defendant. Johnson left the gin temporarily in the backseat of his uncle’s automobile, in which he had been a passenger. In the defendant’s absence, the victim removed the bottle from the backseat of the car and locked it in the trunk. When the defendant returned, there was an exchange of words about the gin which culminated in the victim’s slapping Johnson and ordering him out of the car.

Johnson immediately went to the nearby home of an acquaintance and borrowed a shotgun, ostensibly “to go hunting.” He also bought two shells from the owner of the gun. Johnson then went looking for his uncle, and when he found him said, “I want my shit.” Johnson fired directly at the victim (the hammer apparently had already been pulled), wounding him fatally. There was evidence to show that when he was hit, the victim was trying to get out of his car, perhaps to retrieve the bottle of gin from the trunk. The defendant then ejected the shell, reloaded and fired again, hitting the top of the victim’s automobile.

Before firing the second shot, Johnson said to his brother, at that time also a passenger in the victim’s car, “You’re next.” He ordered his brother to get the gin bottle out of the automobile trunk, and finally left the scene with the bottle and the shotgun, making no effort to aid the dying victim.

When the police arrived, the defendant returned to the scene and volunteered information that he had shot the victim. In the police patrol car on the way to the stationhouse, Johnson said his uncle was always harassing him but that he would not do so again. Johnson also made a statement to a police investigator, in his mother’s presence, in which he admitted shooting the victim in order to “get [his] $12.00 off the backseat” of the victim’s car. But at no time did he maintain that the shooting was accidental.

At trial Johnson testified that he had lent the victim $12.00 which he wanted back, and that he only meant to scare the victim into returning the money and the gin by use of the shotgun. He said that the gun discharged accidentally, but that he had not told the investigator this fact “because he didn’t ask.” Likewise, the defendant’s brother testified at trial that the defendant’s finger was never on the trigger, a fact which he said he neglected to mention at the prior hearing in juvenile court because he was not asked about it.

Although the defendant’s trial testimony was probably sufficient in itself to support a finding of second degree murder, there were other strong indications that he acted with the intent, deliberation and premeditation necessary to constitute first degree murder. The jury would have been fully justified in finding Johnson guilty of this offense, and they apparently did so. Were it not for the error in the punishment fixed in the verdict, caused by the erroneous jury instruction, we would have no difficulty in upholding the defendant’s conviction.

The judgment is reversed and remanded for a new trial on the charge of first degree murder, as contained in the indictment.

O’BRIEN and DUNCAN, JJ., concur.

      . The error in the charge was not brought to the trial court’s attention at the time the instruction was given to the jury, nor was it included in the original motion for a new trial. However, upon subsequent motion the order denying the motion for a new trial was amended by the trial judge nunc pro tunc to cover this assignment of error. The purported amendment came after the judgment became final, and for this reason we think it was of doubtful efficacy. Nevertheless, we are convinced that the error here is plain and that it inescapably affected the verdict and tainted the judgment entered thereon. We therefore conclude that it can be reviewed on appeal by this Court, under the rule laid down in Manning v. State, 500 S.W.2d 913 (Tenn.1973).

      . Wattingham was charged with the theft of property stolen from one Martha Criswell, described in the opinion as a married woman “laboring under the disabilities of coverture, and consequently, incapable of being prosecu-trix in the present case,” even though she had been deserted by her husband some twelve months before the prosecution commenced and his whereabouts were unknown. 37 Tenn. at 66. This fact, the Court says, “amounts to nothing,” because it “is a matter that concerns the public, as well as the person accused of a criminal offense, that there shall be a responsible person as prosecutor . . ” Ibid (emphasis added). Apparently, under the doctrine of coverture, the deserting spouse was considering “responsible,” and, in his absence, one could steal with impunity from Mistress Cris-well. This situation brings to mind Mr. Bumble’s oft-quoted response to the doctrine of coverture. When told that “the law supposes that your wife acts under your direction,” Mr. Bumble replied, "If the law supposes that . the law is a ass — a idiot.” C. Dickens, Oliver Twist, Ch. 51, p. 445 (Scribner’s, New York 1926).


author: BYERS, Judge.

text:
    STATE of Tennessee, Appellant, v. Larry Glenn RUSSELL and Linda Gayle Russell, Appellees.
    Court of Criminal Appeals of Tennessee.
    Dec. 19, 1978.
    Certiorari Denied by Supreme Court April 9, 1979.
    William M. Leech, Jr., Atty. Gen., Robert L. DeLaney, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., John W. Gill, Asst. Dist. Atty. Gen., Knoxville, for appellant.
    William L. Waters, Knoxville, for appel-lees.
   OPINION

BYERS, Judge.

This case is before us on Writs of Certio-rari and Supersedeas. The State contends the trial court below acted illegally in suppressing evidence obtained under a search warrant. The trial judge issued the suppression order after the State refused to either reveal the name of their informant or to produce the informant for an in camera inspection.

We vacate the suppression order and remand this action.

Whether to require the State to reveal the identity of an informant is within the discretion of the trial judge. Roberts v. State, 489 S.W.2d 263 (Tenn.Crim.App.1972). However, the refusal of the State to produce an informant is not sufficient grounds alone to suppress the search warrant. Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964).

Upon remand, the trial judge is instructed to hold an evidentiary hearing, without the informant being present, to determine the credibility and reliability of the informant and whether the police officers justifiably relied on the information given by the informant. This hearing will not necessarily require the revelation of the informant’s identity. It is possible the testimony of the affiant-officer will supply the proof necessary for such a determination. See Goines v. State, 572 S.W.2d 644 (Tenn.1978).

If the trial judge is dissatisfied with the proof presented at this hearing, he may, within his discretion, require the State to produce the informant for an examination by the trial judge in the presence of the District Attorney General, the official Court Reporter, and counsel for the defendants.

DAUGHTREY and CORNELIUS, JJ., concur.


author: O’BRIEN, Judge.

text:
    Chester Lee SUMERALL, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 21, 1978.
    Certiorari Denied by Supreme Court March 19, 1979.
    Brett B. Stein, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, Michael W. Hughes, Asst. Atty. Gen., Memphis, for appellee.
   OPINION

O’BRIEN, Judge.

Defendant was indicted for rape and convicted of assault with intent to commit rape. Punishment was set at not less than three (3) years nor more than four (4) years in the penitentiary.

On this appeal defendant charges the trial court’s instructions to the jury relative to the complaint made by the victim against her attacker amounted to an unwarranted comment on the evidence. The jury instruction in this regard was as follows:

“If complaint is made soon after the alleged act it tends to strengthen the testimony of the prosecutrix. If no complaint is made, or a long time elapses between the alleged act and her complaint, it tends to weaken her testimony.”

At the outset we note the State’s suggestion that the case is prematurely before us and not ripe for consideration. This case was tried and judgment entered on November 17,1976. A motion for new trial was properly filed and dismissed for lack of prosecution on December 15, 1976, at the State’s request. The case was appealed and after consideration in this court, remanded to the trial court for a ruling on the motion for new trial on its merits. On November 4, 1977, the motion for new trial was overruled, appeal was granted, and the case is now before us for consideration of the assignments of error. We consider the case in the proper posture for disposition.

The case cited by defendant to support his assignment, Phillips v. State, (Tenn.Cr.App. 4/24/78), was pending before the Supreme Court on petition for certiorari at the time the brief was filed. Certiorari was denied on May 1, 1978. In Phillips complaint was made of the exact same jury instruction. This court stated the law on the subject and, citing authority, went on to say the following in reference to the objected to jury instruction:

“It is the law of this State that evidence of complaint or lack thereof in a case of rape may be considered by the jury in weighing the truth or falsity of a victim’s testimony. Conboy v. State, 2 Tenn.Cr.App. 535, 455 S.W.2d 605, (1970).”

There is no authority for the instruction delivered by the trial judge not among the eases cited by the State, nor among the numerous cases we have examined in our own research. We think it would be better for the trial judge to instruct the jury that they may consider the complaint, or lack thereof, in weighing the credibility of a victim rather than specifically stating that it tends to strengthen or tends to weaken the testimony of the witness.

The court went on in the Phillips case to say they did not think the charge affected the verdict of the jury. So it is in this case. The evidence was overwhelming that defendant locked himself and his victim in the residence where the assault took place after evicting the owner. The victim testified she had been raped. The jury saw fit to find defendant guilty only of an assault. The testimony of the victim, her boyfriend, and the owner of the house where the incident took place each corroborated the other in one area or another, and in turn was corroborated by the testimony of police officers. We are of the opinion that the jury instruction did not affect the results of the trial. T.C.A. See. 27—117. Jury instructions such as those delivered in this case may be of some benefit to a defendant if the complaint comes some lengthy period of time after an alleged assault takes place. Under the circumstances of the case before us instructions of this nature work to the disadvantage of a defendant because it emphasizes the complaint made by a prosecutrix soon after the incident occurred. We strongly commend to trial judges in cases of this nature the options included in footnotes 14 and 15 to Tennessee Pattern Jury Instructions, Criminal, (1978), Number 25.01, Rape.

We overrule the assignment and affirm the judgment of the trial court.

DAUGHTREY and BYERS, JJ., concur.


text:
    James B. DONOVAN, III, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 27, 1978.

      Robert C. Watson, Nashville, for appellant.
    William M. Leech, Jr., Atty. Gen., Michael J. Passino, Asst. Atty. Gen., David L. Raybin, Asst. Dist. Atty. Gen., Nashville, for appellee.
   OPINION

DAUGHTREY, Judge.

In 1975 the petitioner, James B. Donovan, III, pleaded guilty to grand larceny and was sentenced to five to ten years in prison. Subsequently he pleaded guilty to the offense of attempt to commit a felony and received a concurrent one year sentence. In 1977 he filed a petition for writ of habe-as corpus, which was transferred to the trial court where it was treated as a petition for post-conviction relief under T.C.A. § 40-3808. The State filed a response to the petition, but supplied no related records or transcripts; the petitioner then filed an “Answer” to the State’s response. Thereafter the trial judge dismissed the petition without appointing counsel or holding an evidentiary hearing. The petitioner now appeals that action by the trial judge.

In his petition, Donovan attacks the validity of his conviction, alleging a breach of the agreement reached with the State upon which his guilty plea was based, incompetence on the part of his trial attorney, and his own incompetence to plead guilty because of insanity from drug addiction. All of these allegations relate to the circumstances surrounding the entry of Donovan’s guilty plea, which must be tested under the guidelines laid down in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Despite the mandate of T.C.A. § 40-3814 and the obvious need for a review of the transcript of the guilty plea hearing, the assistant district attorney failed to file a copy of the transcript in connection with his response. And there is nothing in the record to suggest that the trial judge reviewed the Boykin transcript prior to denying relief on the post-conviction petition. For this reason, the State now concedes that the judgment below must be reversed and the case remanded for an evaluation of all the relevant transcripts. We so order.

Upon remand, the State is directed to comply fully with T.C.A. § 40-3814, so that the trial judge may have an adequate basis for deciding whether to appoint counsel, and whether to schedule an evidentiary hearing. As the record now stands, it appears that the petitioner’s allegations, if proven to be true, would provide him with grounds for relief. Of course, in determining the need for a hearing, the petitioner’s allegations must be presumed to be true, in the absence of clear proof in the record to the contrary. Skinner v. State, 4 Tenn.Cr.App. 447, 472 S.W.2d 903 (1971).

Further, we caution against placing undue reliance on the unamended “Answer” filed by the petitioner in response to the State’s pleading. The trial court’s order dismissing the petition specifically mentions and apparently relies at least in part upon this document. Yet a reading of the document suggests that it was drafted by a jailhouse lawyer who may or may not have accurately reflected the petitioner’s desires and contentions in this matter. In such a situation as this, the need for skillful amendment by appointed counsel, as authorized by T.C.A. § 40-3807, becomes even more apparent. See also T.C.A. § 40-3815, Cureton v. Tollett, 477 S.W.2d 233 (Tenn.Crim.App.1971).

The judgment of the trial court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

WALKER, J., and SAMUEL L. LEWIS, Special Judge, concur.

       Although it apparently bears the petitioner’s signature, the “Answer” contains somewhat peculiar statements, e. g. “At the outset, this writer says that regardless of the consequences, the wrath he probably will have to endure when Petitioner reads this petition, he simply cannot conscientiously and falsely attempt to put on the prosecution and [the petitioner’s trial attorney] all the blame for what happened in the Petitioner’s situation, but rather must put some of that blame squarely on the shoulders of the Petitioner, an unfortunately confused individual, who, seemingly because of sympathy afforded him by the Court, the State and defense counsel, erroneously assumed that he would not become the subject of severe penalty . . . notwithstanding the fact that he was acutely aware that a sentence which was two years in excess of what he plead guilty in exchange for had been given him in the cause.” In view of the fact that T.C.A. § 40-3812 may have the effect of precluding subsequent attempts by this petitioner to ventilate constitutional claims arising from his conviction, it is especially necessary that care be taken to provide assistance to him if there is any indication that such assistance is merited. See T.C.A. § 40-3815, which directs the trial court to “require amendments needed to achieve substantial justice and a full and fair hearing of all available grounds for relief.”


text:
    William Calvin TURNER, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 5, 1979.

      Edwin Z. Kelly, Jr., Jasper, for appellant.
    William M. Leech, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Nashville, J. William Pope, Dist. Atty. Gen., Pikeville, William C. Killian, Asst. Dist. Atty. Gen., Jasper, for appellee.
   OPINION

DAUGHTREY, Judge.

The petitioner, William Calvin Turner, was convicted in 1975 of concealing stolen property, at which time he was represented by a retained attorney. (He later hired a different attorney who represented him, unsuccessfully, on direct appeal of that conviction.) . In 1977 he filed a petition for post-conviction relief, alleging that certain material witnesses were not subpoenaed by his original attorney, thereby depriving him of his Sixth Amendment right to a fair trial, and that because of his failure to subpoena these witnesses, the trial attorney had provided ineffective assistance of counsel. The trial judge appointed counsel and scheduled a post-conviction hearing, which was held in two parts.

The second part of the hearing was necessitated by the initial inability of court personnel to secure the presence of a witness named Terry Cardin, who had been subpoenaed by petitioner. When this witness was found and brought in to testify, the State was represented, and the petitioner’s counsel was present and thoroughly examined the witness. The petitioner was not present, however, and he now assigns as error the trial court’s decision to complete the post-conviction hearing in his absence.

In his second assignment of error the petitioner insists that the evidence preponderates against the trial court’s finding that the trial attorney was competent in his representation of the petitioner.

We find no merit to either one of the two assignments presented on appeal. From a close reading of the record, it appears that the post-conviction matters pursued below amounted to little more than an effort by the petitioner to relitigate his case, which, of course, is not the function of a post-conviction proceeding. The petitioner’s witnesses were obviously produced in an attempt to resuscitate his original alibi defense and, further, to show that he had been “framed” by various local law enforcement officials. It was the petitioner’s position that he had been driven to Chattanooga by Terry Cardin on the night he was supposed to have committed the offense for which he was convicted, and that he had been picked up in Chattanooga the next day, again by Cardin, and driven back to Marion County. Cardin was under subpoena at the original trial and was present in the courtroom throughout the trial, but he was never called to testify.

At the post-conviction hearing, the petitioner insisted that if Cardin had been called as a witness, he would have testified that he drove Turner to Chattanooga on the night in question and returned for him the next day, thus supplying Turner with an alibi. In fact, when Cardin finally did testify at the delayed post-conviction hearing, he said he had once gone to Chattanooga with Turner and gambled with him all night, but he was unable to recall the date, and he adamantly denied ever driving Turner to Chattanooga and returning for him the next day.

Most of the other witnesses called by the petitioner were of similarly little help to him. One, an inmate of the local jail, testified that Turner had recently given him $10.00 and a watch to commit perjury at the hearing. Others gave testimony which, put simply, was inconclusive on the factual issues raised by the petitioner.

The petitioner’s trial attorney testified to his preparation efforts in the case. He said that he had talked to all the witnesses proposed by Turner, and found many of them to be “not beneficial” to his client’s case. Some, he said, gave statements which were not consistent with Turner’s version of the facts; others provided merely cumulative testimony. Acknowledging his duty to preserve the confidences of his former client, the attorney also spoke candidly in terms of his ethical obligation not to utilize perjured testimony on his client’s behalf.

The hearing judge listened patiently to all the evidence produced by the petitioner and the State and made lengthy written findings of fact, which culminated in his conclusion that the petitioner’s trial attorney had not rendered ineffective assistance of counsel, under the standards implicit in Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975). We find that the record fully supports his determination.

Nor do we find reversible error in the trial court’s decision to conclude the hearing in Turner’s absence. The petitioner asks that we extend his Sixth Amendment right to be present at all stages of the trial to this post-conviction proceeding, citing Stone v. State, 521 S.W.2d 597 (Tenn.Crim.App.1974). This we decline to do. A post-conviction hearing is not a trial nor an extension of it, but is a wholly collateral lawsuit. Under T.C.A. § 40-3817, the hearing judge has the discretion to take proof by various means, as long as the petitioner’s right to test the evidence is preserved. Clearly that end was accomplished in this case, and the petitioner’s interests were scrupulously protected. Unfortunately for him, the sole witness who appeared at the second part of the hearing testified exactly contrary to the prediction made earlier by Turner. We do not think Turner’s presence would have made any difference whatsoever in the outcome of the hearing. T.C.A. § 27-117.

By our holding, we do not mean to encourage hearings in the petitioner’s absence, or the use of alternative means of proof as set out in T.C.A. § 40-3817. Under certain circumstances, such action could run afoul of a convict’s right to due process in the post-conviction setting. However, based on the circumstances in this particular case, we find no reversible error in the procedure utilized in the court below.

The assignments of error are overruled and the judgment of the trial court is affirmed.

WALKER and CORNELIUS, JJ., concur.


author: DUNCAN, Judge.

text:
    Ernest RUFFIN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 18, 1979.
    Certiorari Denied by Supreme Court April 9, 1979.

      Edward G. Thompson, Shelby County Public Defender, Charles E. Baucum, Asst. Public Defender, Memphis, for appellant.
    William M. Leech, Jr., Atty. Gen., Richard S. Maxwell, Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Don A. Driver, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

DUNCAN, Judge.

This is an appeal from a judgment of the Shelby County Criminal Court which approved a jury verdict finding the appellant, Ernest Ruffin, guilty of escape, and assessing as his punishment a penitentiary sentence of not less than one year nor more than five years.

In this appeal the appellant attacks the constitutionality of the escape statute and complains about the admission of an oral statement he made to police officers shortly after his recapture.

We affirm the appellant’s conviction.

Under his first assignment of error, the appellant argues that the escape statute, T.C.A. § 39-3807 (Supp.1978), is unconstitutional because, according to the appellant’s theory, it is ambiguous and does not give proper notice to an accused; thus, he reasons, it is violative of his rights to due process of law.

The provisions of T.C.A. § 39-3807 (Supp.1978) pertinent to this appeal read as follows:

If any person confined in a county workhouse or jail or city jail or municipal detention facility upon any charge of or conviction of a criminal offense constituting a felony shall escape or attempt to escape therefrom, he shall be guilty of a felony; . ... Any term of imprisonment imposed upon any person convicted under this section shall begin at the expiration of the aggregated term of imprisonment he was serving at the time of his escape or attempt to escape.

In particular, the appellant argues that the last sentence of the statute limits convictions to those persons who were serving a “term of imprisonment” when they escaped. Thus, the appellant reasons, since he was not serving time under a “term of imprisonment” at the time of his escape, he cannot legally be punished under the statute. We do not agree with this reasoning.

T.C.A. § 39-3807 (Supp.1978) applies to two classes of persons: one, those who are confined in a city or county jail on a felony charge; two, those who are confined in a city or county jail on a felony conviction. Clearly, the last sentence of the statute applies to the second class of persons, and is merely a directive by the legislature that any convicted felon who escapes while confined in a city or county jail shall have his conviction for the escape run consecutive to “the aggregated term of imprisonment he was serving at the time of his escape or attempt to escape.” At the time of his escape, the appellant was not serving a “term of imprisonment” within the meaning of that phrase as used in the last sentence, but he was clearly confined in the Shelby County Jail upon a charge of “a criminal offense constituting a felony,” which placed him within the purview of the first sentence of the statute.

The statute gives clear and detailed notice of the conduct it proscribes. There is no constitutional infirmity in T.C.A. § 39-3807 (Supp.1978).

The basis of appellant’s second assignment of error is an oral statement made by the appellant to a deputy sheriff, in which the appellant admitted escaping and sought to establish a motive for his actions. Appellant argues that he was “ambushed” at trial when the deputy sheriff unexpectedly testified about the statement. He further argues that, pursuant to T.C.A. § 40-2441, he previously had “filed requests for all statements” and discoverable material and the names and addresses of all persons present at the time any statements were made.

We have reviewed the technical record and are unable to find any discovery motion based on T.C.A. § 40-2441. Our attention to such a complaint as this is foreclosed in the absence of such a motion. Keith v. State, 542 S.W.2d 839 (Tenn.Crim.App.1976); Morelock v. State, 3 Tenn.Crim.App. 292, 460 S.W.2d 861 (1970). Moreover, this complaint was not incorporated in the appellant’s motion for a new trial; thus, because it would not rise to the stature of being a patent invalidating error, then the rule attaches that the trial judge will not be put in error on matters not brought to his attention in the motion for a new trial. Taylor v. State, 544 S.W.2d 897 (Tenn.Crim.App.1976); Keith v. State, supra.

Further, we point out that the testimony complained about was merely cumulative to other evidence which conclusively established the appellant’s guilt of escape. Thus, even if the complaint were in a posture for consideration and even if error were to be found, it would necessarily be harmless error. T.C.A. § 27 — 117.

We overrule the appellant’s assignments of error. The judgment of the trial court is affirmed.

CORNELIUS, J., and JERRY SCOTT, Special Judge, concur.


author: TATUM, Judge.

text:
    Christopher POST, Robert Jacobson, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 18, 1979.
    Certiorari Denied by Supreme Court April 2, 1979.

      Wilbur F. Cash, Covington, for Post.
    G. Michael Aeree, Covington, for Jacobson.
    William M. Leech, Jr., Atty. Gen., Jennifer Helton Small, Asst. Atty. Gen., Nashville, Michael Whitaker, Dist. Atty. Gen., Somerville, Preston Parks and Jon Kerry Blackwood, Asst. Dist. Attys. Gen., Somer-ville, for appellee.
   OPINION

TATUM, Judge.

The appellants, Robert Manley Jacobson and Christopher Edward Post, appeal from drug convictions. Both were presented by the Grand Jury for possessing LSD with intent to sell and possessing marijuana with intent to sell. The trial court directed a verdict of not guilty as to both defendants on the charge of possessing marijuana with intent to sell, but left standing the lesser included charge of simple possession of marijuana. The appellant, Jacobson, was convicted of possessing LSD with intent to sell and sentenced to not less than 10 years nor more than 15 years and fined $10,000 as punishment for this offense. He was also convicted for simple possession of marijuana and sentenced to serve 11 months and 29 days in the County Jail and fined $1,000. Post was convicted of simple possession of LSD and simple possession of marijuana and sentenced to serve 11 months and 29 days and fined $1,000 in each of these cases. A third defendant, Carla Suratt, was convicted of simple possession of LSD and marijuana, but she did not appeal. The sentences of confinement for both appellants were ordered to run concurrently and the fines were cumulative. The fines were later suspended, but the trial judge denied a request for suspension of the remainder of the sentences.

Both appellants assigned error attacking the composition of the Grand Jury that indicted them, testing the weight and preponderance of the evidence, and alleging a search and seizure to be unconstitutional. In addition, Jacobson alleges that the trial judge erred in allowing the State to question him about a prior arrest. All convictions are affirmed.

We first address the assignment alleging that the system employed to select the Grand Jury that indicted the appellants systematically excluded blacks from serving. Though the appellants are white, they have standing to raise this question. Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972).

The foreman of the Tipton County Grand Jury, as in all of the Tennessee counties, is appointed for a two-year term by the trial judge. T.C.A. § 40-1506. The present foreman is white and has been serving in that capacity for several years.

The appellants challenge the system for selecting the remaining 12 members of the jury. A new Grand Jury is chosen for each term of the court by the three Jury Commissioners appointed by the court. Beginning with the March term, 1978, when the appellants were indicted, the panels for the entire jury requirements of the court (Grand and Petit) were selected in the following manner. Tipton County was divided into three territories and each of the Jury Commissioners was assigned one territory by the Chairman. Each Commissioner would take the voter registration books for his assigned area and would select each tenth name from the voter registration list. One of the commissioners stated that he made a conscious effort to select blacks, but the remaining two members listed every tenth name, regardless of race. One commissioner testified that when they knew the tenth name to be a person who was physically infirm, then they would go to the eleventh name.

The names selected from the voter registration list would be placed in a large box on separate cards. The judge designated the total number of Grand and Petit jurors required for the March 1978 term of court. This number of names was then drawn from the box by a child under the age of 10 years. In some instances, when a name drawn was known to be that of an unusually busy farmer, his name would be replaced in the box and another name drawn since springtime is a busy season for farmers. Similarly, names were replaced in the box if the person was known to be temporarily ill; when names of persons who had become physically incapacitated were drawn, these names were permanently discarded.

On the first day of the term, the trial judge excused those jurors selected at random from the box by the 10-year old child who had good cause or excuse for not serving as jurors. The names of those remaining were placed in a hat and a random selection was made of twelve of them for Grand Jurors. Those remaining were used as Petit Jurors.

This random selection system produced three black persons and nine whites for the Grand Jury that indicted the appellants. There is no evidence of the racial make-up of Tipton County for the year 1978, but the 1970 census indicates that at that time, 67.5% of the population of the County was white, 32.4% was black and the remaining .1% was other minorities.

From 1974 to 1978, the jury commission used telephone directories instead of voter registration lists to select jurors. The telephone directories often resulted in the selection of a lesser percentage of blacks than the voter registration roles. We assume that this is because a lesser percentage of blacks subscribed to telephones than whites. In any event, the use of the voter registration roles are generally considered the most inclusive list of names for potential jurors. Jefferson v. State, 559 S.W.2d 649 (Tenn.Cr.App.1977).

The appellants insist that in deciding this case, we should consider that from 1968 to 1978, a total of 374 Grand Jurors were summoned of whom 315 were identified as white, 57 as black and 2 unidentified as to race. Since the Tipton County Criminal Court adopted a new system for selecting jurors in 1978 and the jurors who indicted appellants were selected under the new system, we hold that discrimination, if any, in the system employed prior to 1978 is immaterial in the determination of this case. In Brown v. Allen, 344 U.S. 443, 479, 73 S.Ct. 397, 418, 97 L.Ed. 469, 500 (1953), the United States Supreme Court said:

As this venire was the first drawing of jurors from the box after its purge in July 1949, following the new statute and Brunson v. State of North Carolina, 333 U.S. 851, 68 S.Ct. 634, 92 L.Ed. 1132, decided here, March 15, 1948, the long history of alleged discrimination against its Negro citizens by Vance County jury commissioners is not decisive of discrimination in the present case. Former errors cannot invalidate future trials. Our problem is whether this venire was drawn from a jury box, invalidly filled as to Speller because names were selected by discriminating against Negroes “solely on account of race and/or color.” It is this particular box that is decisive, cf. Cassel v. State of Texas, 339 U.S. 282, 290 and 295, 70 S.Ct. 629, 633, 635, 94 L.Ed. 839. Past practice is evidence of past attitude of mind. That attitude is shown to no longer control the action of officials by the present fact of colored citizens’ names in the jury box.

We hold that the ratio of blacks and whites comprising the Grand Jury that indicted the appellants was not disproportionate. We also hold that the State has shown a racially neutral criteria in procedure was employed in the selection of the Grand Jury that indicted the appellants. See Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Jefferson v. State, supra.

The appellants rely upon Mitchell v. Rose, 570 F.2d 129 (6th Cir. 1978) for the proposition that the composition of the Grand Jury was unconstitutional because of the systematic exclusion of Negroes as foremen of the Grand Jury. This is a decision of the United States Court of Appeals, 6th Circuit, holding that the selection of white Grand Jury foremen in Tipton County was discriminatory and invalidated indictments returned by the Grand Jury. The United States Supreme Court has granted certiora-ri in that case on application of the State. The decision was based largely on an affidavit of the Tipton County Criminal Judge, stating he “never really gave any thought” to appointing black persons as Grand Jury foreman. The trial judge never explained or elaborated on this statement in the affidavit, but he does so in the record before us. The trial judge said in making that statement he intended to say “The court had no feeling whatsoever that race should be injected into it (selection of the Grand Jury foreman).” He further explained that the office of Grand Jury Foreman is an administrative one that pays only $10 a day. He has had the present foreman for several years; as the foreman is competent and willing to serve, the Judge did not want to terminate him for racial reasons. We find that the selection of the Grand Jury foreman was not racially motivated. The fact that no Negro has been a jury commissioner in Tipton County at least since the 1950’s is not in itself unconstitutional discrimination. See Bailey v. Henslee, 287 F.2d 936 (8th Cir. 1961) and cases therein cited.

Both appellants have made several assignments of error attacking the weight and sufficiency of the evidence. We will summarize the evidence as accredited by the jury. On the evening of February 7, 1978, Officer Larry Godwin of the Memphis Police Department, working undercover, went to a mobile home in Tipton County for the purpose of arranging a drug transaction with the appellant, Jacobson. When he entered the mobile home, he found both appellants and a person named Gerald Dollwet there. Godwin arranged with Jacobson to buy 5,000 dosage units of LSD for $10,000. The transaction was to take place later in the week. Post was present during the conversation, but did not participate in it; Dollwet’s participation was limited. While discussing the drug transaction with Jacobson, Jacobson told the officer that he could sell 600 tablets of LSD “now.”

Godwin observed a fruitcake can on a coffee table about three feet from him. Next to the can, there was approximately 1 ounce of a plant substance which appeared to the officer to be marijuana. Inside the can, he observed what appeared to him to be LSD tablets and drug paraphernalia. He obtained a search warrant based on these observations and returned to the trailer on February 11,1978, with other officers. They found 206 dosage units of LSD in the fruitcake can, and a quantity of marijuana in the refrigerator, resulting in this prosecution.

The appellant, Post, testified that he was not aware of LSD being kept in the mobile home, but he knew that marijuana was kept there for consumption. Post paid one-half of the rent for the mobile home to Jacobson and Jacobson paid the landlord. Suratt was permitted to live there free of rent because she had no place else to stay. Post testified that he did not spend much time there, but spent nights there so that he could drive Suratt to school each morning.

Jacobson testified that he was only acting as an intermediary for Dollwet for the sale of the 5,000 units of LSD. He testified on direct examination that Dollwet was the supplier and “he’s who I got it (the 5,000 units) from.” Jacobson explained that Doll-wet did not want to meet Godwin and that he was to receive $1,000 for his participation as intermediary in that transaction.

He stated on the morning of February 11, as he and Dollwet were leaving to go to Raleigh Springs Mall, Dollwet gave him the 206 units of LSD which the officers later found during the search. Dollwet asked him to put it away until they returned from Raleigh Springs Mall, so he put it in the fruitcake can. Jacobson testified that his co-defendants were not aware of this. While further testifying on direct examination, he said that he did not return for the LSD in the fruitcake can because he “was arrested that afternoon in Shelby County.” He admitted keeping marijuana in the mobile home for his own use and testified that his co-defendants were aware of this; he gave marijuana to his co-defendants from time to time.

In considering the appellants’ assignments relating to the weight and sufficiency of the evidence, we must bear in mind certain firmly established rules. The jury verdict, approved by the trial judge, accredits the testimony of the State’s witnesses and resolves all conflicts in favor of the State’s theory. State v. Grace, 493 S.W.2d 474 (Tenn.1973); Hawkins v. State, 527 S.W.2d 157 (Tenn.Cr.App.1975). Such verdict displaces the presumption of the appellants’ innocence, raises a presumption of their guilt, and puts upon them the burden of showing that the evidence preponderates against the verdict and in favor of their innocence. State v. Sneed, 537 S.W.2d 699 (Tenn.1976); State v. Bullington, 532 S.W.2d 556 (Tenn.1976).

The 206 units of LSD were found in the fruitcake can on the coffee table in the living room and marijuana was found in the refrigerator; both appellants, as joint occupants, would be expected to use and control these areas. Post admitted knowing that marijuana was kept in the mobile home and Jacobson admitted knowing that the LSD and marijuana were there. We hold that a jury question was presented by the evidence adduced in this case. Armstrong v. State, 548 S.W.2d 334 (Tenn.Cr.App.1976); Berry v. State, 4 Tenn.Cr.App. 592, 474 S.W.2d 668 (1971). There was sufficient evidence to support the jury verdicts and the trial judge properly refused to direct verdicts of acquittal. State v. Cabbage, 571 S.W.2d 832 (Tenn.1978).

Post also complains that the trial judge directed a verdict in his favor reducing the charge of possessing marijuana with intent to sell to the lesser included charge of simple possession of marijuana. He argues that this action on the part of the trial judge indicated to the jury that the trial judge believed him guilty of simple possession of marijuana. We disagree with this argument. The reduction of the charge benefitted Post and no prejudicial effect is shown. This assignment is overruled.

Both appellants attack the search warrant on the ground that the affidavit upon which it was issued stated that the affiant, Officer Godwin, “observed_marijuana and LSD” while the affiant at trial testified that he was not positive that the substance he had seen was marijuana and LSD, but only that these substances appeared to him to be marijuana and LSD. Officer Godwin also testified, “The only way to know for sure is to send (the substances) to a toxicologist.”

9 In considering a related question, this court, speaking through Presiding Judge Walker, in Dishman v. State, 3 Tenn.Cr.App. 725, 729, 460 S.W.2d 855, 857 (1970), said:

The test for determining the validity of a search warrant is that pronounced in the leading case of Aguilar v. Texas [378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723] supra, and fully considered by our Supreme Court in Owens v. State, 217 Tenn. 544, 399 S.W.2d 507 (1965). Spinelli v. United States [393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637] supra, further explained the principles of Aguilar. In neither Aguilar nor Spinelli was the affidavit based on information from an eyewitness who saw the offense. The affidavit before us was based on the informer’s personal observation of the alleged offense. He saw marijuana being delivered into Dishman’s house. Personal observation is not a matter of conjecture but rather carries with it a sufficient element of probability which compels inquiry in this kind of case. See Commonwealth v. Somershoe, 215 Pa.Super. 246, 257 A.2d 341.
The magistrate in this type of a case must make an independent and detached appraisal of the affidavit in order to determine the presence of statements setting forth “underlying circumstances” as referred to in Aguilar; and in making the appraisal the affidavit must be read in a common sense and nontechnical manner. See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684.
In Commonwealth v. Somershoe, supra, the court said:
“* * * Affidavits of probable cause are tested by much less vigorous standards than those governing the admissibility of evidence at trial. McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); only the probability and not a prima facie showing of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); in judging probable cause issuing magistrates are not to be confined by niggardly limitation or by restrictions on the use of their common sense, United States v. Ventresca, supra, and that their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).”
See also State v. Pietraszewski, 172 N.W.2d 758 (Minn.1969).
To be positive that the material delivered to the defendant was marijuana, a chemical examination would be required. Many common plants look like it. Before he can obtain a search warrant, however, the agent is not required to have the information the search warrant would disclose. Proof of the probability and not of the crime is all that is required.
Probable cause does not import absolute certainty. It only imports reasonable grounds for belief, and the magistrate issuing the search warrant is the authority to be satisfied that probable cause exists. He performs a judicial act which is not subject to review unless there are no material facts upon which he bases his discretion. See Owens v. State, supra.

Applying our own common sense to this assignment, we are completely satisfied that the Magistrate did not assume from reading the affidavit that a chemical examination had been made of the material the affiant saw in the appellants’ mobile home. The affidavit stated “the affiant has been an officer of the Memphis, Tennessee Police Department, assigned to the Memphis Metro Narcotics Division for over four years and has seen marijuana and LSD on many occasions and has been trained in the recognition of such drugs.” Obviously, the magistrate was aware that the affidavit was based on the affiant’s identification by observation. We hold that the appellants have not demonstrated that the affidavit contained a false statement or was issued as a result of fraud or collusion. State v. Little, 560 S.W.2d 403 (Tenn.1978); Woods v. State, 552 S.W.2d 782 (Tenn.Cr.App.1977). On its face, it is sufficient to establish probable cause.

The appellants further attack the search warrant saying that the issuing magistrate did not comply with T.C.A. § 40-518 as he did not endorse on the warrant the hour issued. In issuing the warrant, the magistrate used a form with a place provided for noting the hour issued with “A.M.” and “P.M.” printed after the space for the hour of issuance. The magistrate neglected to strike either “A.M.” or “P.M.” This question was not raised at trial and was not assigned in the motion for new trials; it is being raised for the first time on appeal. For these reasons, the question cannot now be considered. Manning v. State, 500 S.W.2d 913 (Tenn.1973); Hawkins v. State, 543 S.W.2d 606 (Tenn.Cr.App.1976); Rule 14(4) and (5), Tennessee Supreme Court Rules, as adopted by this court, 2 Tenn.Cr.App. 746 (1967).

In another assignment, the appellants say that the trial judge should have declared a mistrial because of comments made by the Assistant District Attorney General in final argument. He said that, “Those two hundred and six hits of LSD are just as dangerous — to human beings as two hundred and six pistols.” The prosecuting attorney, referring to the LSD, also said, “That was a cancer to the society here in your good county.” The trial judge overruled an objection to these remarks. The appellants argue that these statements were not supported by the evidence and tended to “inflame passions” of the jury. Obviously, these statements were neither intended literally nor taken literally, but were illustrative of the danger of LSD. The danger of this substance is a matter of common knowledge; the subject was not dwelled upon, and we do not find that the argument was of such nature as to inflame passions of the jury. Under our adversary system, the District Attorney General is an advocate, as is counsel for defense, and proper oratorical emphasis is denied to neither. Henderson v. United States, 218 F.2d 14, 50 A.L.R.2d 754 (6th Cir. 1955) cert. den. 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253 (1955). Our courts give great latitude to counsel in expressing their views of the case to the jury. In support of this policy, trial judges have wide discretion in controlling the argument of counsel, and their action will not be reviewed absent abuse of that discretion. State v. Sutton, 562 S.W.2d 820 (Tenn.1978); Smith v. State, 527 S.W.2d 737 (Tenn.1975). We find no abuse of discretion in the trial judge’s overruling objection to the remarks above referred to. There was no contemporaneous objection to another statement made by the Assistant District Attorney General during argument. Without such contemporaneous objection, the error, if any, is waived. State v. Sutton, supra ; Anglin v. State, 553 S.W.2d 616 (Tenn.Cr.App.1977). This assignment is overruled.

Next, Jacobson complains of the trial judge’s permitting the State to question him as to a prior arrest in Shelby County, Tennessee, for possession of LSD. On cross-examination of Jacobson, he was asked:

Q. Let me ask you this, Mr. Jacobson: Are you lying when you tell this jury that you never had anything else to do with LSD?
A. I didn’t say I had anything else to do with LSD, sir. I said I had nothing else to do with sales of LSD.
Q. And you were not telling this jury a lie when you say that?
A. No, sir.

After the above questions had been asked, a bench conference was held in which the trial judge said he would permit the State to question Jacobson about the arrest for impeachment purposes, on the provision that the State not question him as to his status in regard to the Shelby County case and on the further provision that the State connect the questions with the case on trial. The following questions and answers were then given:

Q. (By General Blackwood) Were you not arrested February the 11th, in Shelby County, Tennessee?
A. Yes, I was.
Q. Raleigh Springs Mall?
A. Yes, sir.
Q. Were you not arrested and charged with selling LSD?
A. I’ll have to refuse to answer that on the grounds that it may tend to incriminate me, but I will state that they were one and the same thing.

We think that the trial judge erred in permitting the question eliciting the mere arrest of Jacobson. Questions pertaining to mere indictments, charges, and accusations are not generally admissible to impeach a witness. State v. Morgan, 541 S.W.2d 385 (Tenn.1976) and cases therein cited.

However, the error was harmless in context of the record in this case. The appellant had previously testified during questioning by his own attorney that he was arrested in Shelby County on February 11. The evidence already before the jury left no doubt that the arrest was for the planned sale of the 5,000 units of LSD when Officer Godwin visited the mobile home on February 7. Though error, this evidence communicated nothing to the jury that was not already known to it and thus, the error was harmless. T.C.A. § 27-117.

The appellant, Post, has withdrawn the remaining assignment relating to the constitutionality of the fines imposed.

All of the assignments of error are overruled and the judgments of the Criminal Court are affirmed.

DWYER and O’BRIEN, JJ., concur.