author: HENRY, Chief Justice. HENRY, Chief Justice.

text:
    Edward A. DEARBORNE, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Aug. 28, 1978.
    Rehearing Denied Oct. 9, 1978.

      Robert E. Burch, White, Regen & Burch, Dickson, for petitioner.
    Brooks McLemore, Jr., Atty. Gen., David L. Raybin, Robert L. DeLaney, Asst. Attys. Gen., Nashville, W. B. Lockert, Jr., Dist. Atty. Gen., Ashland City, J. Kenneth Atkins, Asst. Dist. Atty. Gen., Dickson, for respondent.
   OPINION

HENRY, Chief Justice.

In this criminal action, wherein we have granted certiorari to the Court of Criminal Appeals, we attempt to clarify the practice and procedure governing the availability of the common law writ of certiorari (1) to review the interlocutory action of the Court of Criminal Appeals in declining to entertain the common law writ to a trial court and (2) its availability in any appellate court to review the action of a trial court in an interlocutory holding.

I.

History of the Lawsuit

Petitioner made a pre-indictment application to the District Attorney General for pre-trial diversion pursuant to § 40-2105, et seq., T.C.A. Upon its denial, a petition for certiorari was filed pursuant to § 40-2108, T.C.A. When that petition was denied by the trial court, petitioner prayed for and was granted an appeal to the Court of Criminal Appeals.

The State moved to dismiss the appeal, contending that it was interlocutory and that such appeals do not lie in criminal cases. The Court of Criminal Appeals sustained the State’s motion; however, it entered an order “treat[ing] the pleadings as a petition for certiorari” and setting the case for hearing before another panel of that Court.

Thereafter, a second panel of the Court of Criminal Appeals held that “certiorari was improvidently granted [there being] no provision in the statutes of this state for an appellate review for an Interlocutory Order entered in a criminal case.”

The petitioner then presented his petition for the common law writ to this Court and assigned errors allegedly committed by the Court of Criminal Appeals. Thus, we have a petition for common law certiorari to the Court of Criminal Appeals to review the action of that Court in denying the common law writ.

II.

May the Supreme Court Entertain Petition for Common Law Writ to Review the Denial of the Common Law Writ

This precise question came before this Court in Cole v. State, 223 Tenn. 20, 442 S.W.2d 246 (1969). There the trial Court overruled a plea in abatement to the indictments and petitioner sought review by petition for certiorari filed in the Court of Criminal Appeals. That Court denied the writ; whereupon, petitioner filed his petition in this Court for the common law writ. Mr. Justice Humphreys wrote for a unanimous court:

While it is true as argued the writ of certiorari inheres in our common law system and has constitutional protection and sanction, Tennessee Constitution, Article 6, § 10; Conners v. City of Knoxville, 136 Tenn. 428, 189 S.W. 870; Clements v. Roberts, 144 Tenn. 129, 230 S.W. 30, it is also fundamental that the jurisdiction of this Court is what the legislature declares it to be. Tennessee Constitution, Article 6, § 2; Hundhausen v. U. S. Marine Fire Ins. Co., 52 Tenn. 702, 703; Chattanooga v. Keith, 115 Tenn. 588, 94 S.W. 62; Memphis Street R. Co. v. Byrne, 119 Tenn. 278, 104 S.W. 460. So that while the common law and constitutional power of certiorari inheres in this Court at the common law and resides here under the Constitution, it must be exercised in accordance with the legislative mandate as long as that mandate does not frustrate and render impotent the constitutional purpose and function of this Supreme Court.
With respect to this the legislature has by T.C.A. § 16-451, provided that judgments of the Court of Criminal Appeals are final judgments which may be reviewed by this Court only by certiorari. (T.C.A. § 16-451), and (T.C.A. § 16-452). No provision is made for this Court to review interlocutory orders of the Court of Appeals made with reference to interlocutory orders of a trial court. (Footnotes omitted.) 223 Tenn. at 22-23, 442 S.W.2d at 247.

Had there been no further pronouncements this would have settled the law. However, three years later the Court, without even alluding to Cole, reached a contrary conclusion in State v. Dougherty, 483 S.W.2d 90 (Tenn.1972). The procedural background was that the trial judge had granted the defendant’s motion for the discovery of certain evidence. The State sought review in the Court of Criminal Appeals by common law writ. When the Court of Criminal Appeals denied the writ, a petition was filed in this Court. The defendant moved to dismiss “on the ground this Court has no jurisdiction to review an interlocutory order of the Court of Criminal Appeals.” 483 S.W.2d at 91-92. Responding to this insistence, the Court said:

However, we are of the opinion the Court of Criminal Appeals acted arbitrarily and illegally in dismissing the petition.
Therefore, the writ of certiorari issuing herein is referable to T.C.A. Section 27-801 which authorizes that writ in cases where an inferior tribunal “has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy.” (Citations omitted.) 483 S.W.2d at 92.

The Court, accordingly, granted certiorari and remanded to the Court of Criminal Appeals.

If this case left any doubt that the Court had departed from Cole, it was removed by our recent opinion in Whitwell v. State, 520 S.W.2d 338 (Tenn.1975). There a defendant, who had undergone a criminal trial at the conclusion of which the trial court had declared a mistrial, filed a motion seeking a judgment of not guilty based upon his insistence as to the meaning and effect of the jury verdict.

The trial judge denied the motion. Whit-well filed his petition for the common law writ in the Court of Criminal Appeals, where a divided court held “that the writ of certiorari is not available to review said order of the trial judge; that the trial judge was not acting illegally, nor beyond his jurisdiction.” 520 S.W.2d at 341.

We granted certiorari, reversed the Court of Criminal Appeals and remanded to the trial court for the entry of a judgment dismissing all charges. Our holding that the trial court was guilty of a “fundamental illegality,” was based largely on McGee v. State, 207 Tenn. 431, 340 S.W.2d 904 (1960).

It is apparent from these two cases that Cole v. State should no longer be considered to be authoritative. Where the conditions of the statute (§ 27-801), as construed by our decisional law, are met, this Court has the discretion to entertain a petition for the common law writ to review the action of the Court of Criminal Appeals in granting or denying such a writ.

III.

Approved Practice

Notwithstanding the above conclusions, we think the proper practice is to petition the Court of Criminal Appeals for the writ and, upon its denial, to petition this Court for the writ, assigning as error the action of the trial court, and reciting fully the fact of the filing of the former petition and the action taken thereon by the Court of Criminal Appeals.

The procedure is governed by Rule 10 of this Court and we emphasize that all petitions for the common law writ must be “accompanied by an assignment of errors, and a brief [conforming to Rules 14 and 15] and a certified transcript of the record.”

The phrase “certified transcript of the record”, as used in this rule means (a) the technical record certified by the Clerk and (b) a transcript of the testimony certified by the court reporter or agreed upon by counsel. The solemnities surrounding a Bill of Exceptions have no application. In the event of a controversy between counsel as to the accuracy of the transcript so certified, the conflict will be resolved by the trial judge.

Certiorari is not a writ of right. To invoke the discretionary jurisdiction of this Court, there must be strict compliance with these rules.

IV.

Pre-trial Diversion

In our recent case of Pace v. State, 566 S.W.2d 861 (Tenn.1978), we upheld the constitutionality of our pre-trial diversion statutes, § 40-2105, T.C.A.

Implicit in that holding and self-evident from the statutes is the notion that they create a statewide statutory scheme for the diversion of certain classes of offenders from the normal criminal process.

The judgment entered in this case in the trial court recites in pertinent part:

That Attorney General’s office has no facilities within said office to enforce the provisions of T.C.A. § 40-2105.
That the provisions of T.C.A. § 40-2105 cannot be implemented in Dickson County through existing facilities.
That the defendant is qualified for the program and should be granted pre-trial diversion if the facilities were available.

The judgment shows on its face that petitioner is not being given the benefit of the “law of the land” provision of our state constitution, Article I, Sec. 8. This provision is synonymous with the “due process” clause of the Fifth and Fourteenth Amendments to the Constitution of the United States. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739 (1965).

This conclusion, however, assumes the applicability of our pre-trial diversion statutes, prior to indictment. This determination requires an analysis of the statute in the light of our historic concept of separation of powers and forces us to focus upon the nature of the office of District Attorney General. The concurring opinion in Pace discusses this matter in some detail and concludes that “the District Attorney General is an officer of the executive department.” 566 S.W.2d at 866. It further focuses on the nature of the prosecutorial discretion vested in the District Attorney General. In this regard the concurring opinion reads as follows:

He or she is answerable to no superior and has virtually unbridled discretion in determining whether to prosecute and for what offense. No court may interfere with his discretion to prosecute, and in the formulation of this decision he or she is answerable to no one. In a very real sense this is the most powerful office in Tennessee today. Its responsibilities are awesome; the potential for abuse is frightening. Indeed, as an incident of separation of powers, the courts may not interfere with the discretion of the District Attorney in their control over criminal prosecutions. See United States v. Cox, 342 F.2d 167, at 171 (5th Cir. 1965).
This prosecutorial discretion is deeply rooted in the common law and is a vital part of our common-law tradition. But this discretion has its outer limits. When the charging process — in this state the indictment — has been completed, the disposition of the charge becomes a judicial function.
Under Tennessee law prior to the adoption of the pre-trial diversion statutes, there were two basic methods for the termination of a criminal prosecution, viz:
a) by verdict or judgment
b) by the entry of a nolle prosequi.

Pre-trial diversion is a third method of termination; but it is obvious that it is not a termination pursuant to a finding of guilt or innocence. It does, however, partake of the nature of a nolle prosequi. Therefore, it is appropriate that we examine the nature of the District Attorney General’s involvement in cases wherein a criminal case is nolled.

As is pointed out in Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977):

The authorities are virtually unanimous that the historical power to “nol pros ” belonged at common law solely to the Attorney General and remains an exclusive prosecutorial power in the absence of a state constitutional or statutory provision to the contrary. 371 A.2d at 1349.

This firmly entrenched common-law rule has been abrogated in Tennessee. Sec. 40-2101, T.C.A., provides:

After indictment found, no criminal prosecution can be dismissed, discontinued or abandoned without leave of the court.

In State v. Costen, supra, [State v. Costen, 141 Tenn. 539, 213 S.W. 910] this Court, citing 12 Cyc. 374, defined a nolle prosequi as being

a formal entry of record by the attorney-general by which he declares that he will no longer prosecute the case. 141 Tenn. at 545, 213 S.W. at 911.

After so defining it the Court stated:

The judge has no participation in it, except to give his consent to such order, and permit its entry upon the record. We are not unmindful of the fact that this power has been exercised by the attorneys-general in this State for many years, but the right to so exercise it is not conferred by the Constitution. The legislature, therefore, has the power to take it away, and when it does so it is not an interference, in a constitutional sense, either with the judicial power of the State, or the ministerial duties of the attorneys-general. With the policy of the statute neither we nor the attorneys general have anything to do. It is a plain mandate of the legislature to which we must all bow. (Emphasis supplied). 141 Tenn. at 545, 213 S.W. at 911.
It is obvious under Sec. 40-2101, T.C.A., and Costen that when a criminal prosecution has gone beyond the charging stage, that is to say, after indictment is returned, the matter has left the domain of the prosecutor and has entered into the realm of the court. See also State ex rel. Hobbs v. Murrell, 170 Tenn. 152, 93 S.W.2d 628 (1936). This case is authority for the general proposition that a conditional nolle may be entered and does not become final until the condition is performed. See also 22A C.J.S. Criminal Law § 461 (1961). Again the similarity between a nolle and pre-trial diversion is evident.

We approve these conclusions as set forth in the concurring opinion in Pace.

We hold that pre-trial diversion is not a mere extension of the charging process. The statutory scheme may not be invoked until after indictment. The plan of diversion, or the denial thereof, follows indictment and comes after the prosecutor has fully discharged all discretionary functions and after the prosecutorial die has been cast. Once committed to the prosecution, the case is before the Court for disposition. Until that time the trial judge is without jurisdiction and the matter is exclusively within the domain and discretion of the District Attorney General.

The statutory scheme of pre-trial diversion does not make it entirely clear that this program does not come into play until after indictment, but this inheres in the very nature of the process. It is judicial in character in that it involves a procedural alternative to prosecution and a disposition by normal methods.

If the statute be construed so as to apply before indictment, the result would be an unwarranted invasion of the authority and power of the District Attorney General, an executive officer, whose prosecutorial discretion may not be abridged during the charging process, i. e. prior to indictment.

The result is that petitioner was not eligible for pre-trial diversion.

We affirm both the trial judge and the Court of Criminal Appeals but only as to results. This action is remanded to the Circuit Court at Charlotte. Should the petitioner be indicted, he is at liberty to seek to invoke the pre-trial diversion statute, and, at that time, the trial judge may want to reconsider whether Dickson County has the facilities to service this form of pre-trial probation of the petitioner, who “should be granted pre-trial diversion if the facilities were available.”

Affirmed and remanded.

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

OPINION ON PETITION TO REHEAR

HENRY, Chief Justice.

On petition to rehear the petitioner asserts that we overlooked the fact that he had already been indicted; however, he concedes that “[N]o indictment appears in the Technical Record.”

We decide cases and controversies on the basis of the record as presented to us for our consideration, and not as they might, or should, have been presented.

The petition is respectfully overruled.

If, in point of fact, petitioner has been indicted, the end result is that petitioner may invoke the pre-trial diversion statute, either by further action under the pending petition, or by new petition, and the matter will stand for consideration by the trial judge, guided by the views and holdings as set forth in our original opinion.

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

       The entry of a nolle, of course, does not bar further prosecution under a new indictment. State ex rel. Hobbs v. Murrell, 170 Tenn. 152, 93 S.W.2d 628 (1936).

       In Kindness, the Court quotes from a Texas case as follows: “How firmly the rule vesting the exclusive power in the prosecuting officer to dismiss a case was established at common law is forcibly and effectively illustrated in a conversation relating to the commitment for seditious language of certain persons belonging to a sect called ‘Prophets.’ Lacy, one of the friends of the prisoners committed, assumed to intercede for them, and upon his conference with Lord Holt the following colloquy is reported:
      “Lacy: T come to you, a prophet from the Lord God, who has sent me to thee, and would have thee grant a nolle prosequi for Mr. Atkins, His servant, whom thou hast cast into prison.’ Chief Justice Holt: ‘Thou art a false prophet, and a lying knave. If the Lord God had sent thee, it would have been to the Attorney General, for He knows that it belongeth not to the Chief Justice to grant a nolle prosequi, but as Chief Justice, I can grant a warrant to commit thee to bear him company.’ 2 Campbell’s Lives of the Chancellors, 173.”

      . Prior to indictment the District Attorney General may, in his sole and unreviewable discretion, sponsor an informal pre-trial program, but such a program would have no statutory sanction.


source: Caselaw Access Project

author: FONES, Justice.

license: Public Domain

text:
    H. I. SAYLORS et al., Appellants, v. The CITY OF JACKSON, Appellee.
    Supreme Court of Tennessee.
    Dec. 27, 1978.

      J. Daniel Breen, Waldrop, Hall, Tomlin & Farmer, Lewis L. Cobb, Jr., Waldrop, Hall, Tomlin & Farmer, Jackson, for appellants.
    Russell Rice, Rice & Rice, Jackson, for appellee.
   OPINION

FONES, Justice.

Plaintiffs, appellants here, brought suit in the nature of a quo warranto proceeding to contest the validity of an annexation ordinance of the City of Jackson pursuant to T.C.A. § 6-310. The Chancellor initially rendered a decree holding that the issue of the reasonableness of the annexation was “fairly debatable” and hence under the applicable law the ordinance was valid. Subsequently, this Court held in City of Kingsport v. State, ex rel. Crown Enterprises, 562 S.W.2d 808 (Tenn.1978), that the “fairly debatable” standard utilized in prior cases had been superseded by a legislative amendment to T.C.A. § 6-310, which placed the burden of proof in an annexation contest on the annexing municipality. In response to Kingsport, the Chancellor, on defendant’s motion, amended his decree to conform with the standard enunciated by this Court. The primary issue in this appeal is whether the Chancellor erred in amending his decree and finding that the annexation complied with the Kingsport guidelines.

The annexed area, hereinafter referred to as the Northside area, comprises 4.06 square miles with approximately 1143 dwelling units. It is a relatively new, upper-middle income residential area. Although the Northside area is served by the City of Jackson Utility Division for its electrical, natural gas, water and some sanitation services, an improved Plan of Services was developed for the area in conjunction with the annexation plans. On August 30, 1977, a public hearing was conducted on the Plan of Services, and the plan was adopted unanimously. The annexation ordinance was likewise considered at a Board of Commissioners meeting on October 7,1977, and also adopted unanimously. Aside from a minor question of parliamentary procedure, appellants do not contest the procedure by which the annexation ordinance was adopted.

In his original decree, the learned Chancellor concluded:

“After reviewing all of the evidence and hearing the testimony, the Court finds that the reasonableness of the annexation of the Northside area is a debatable question, and, therefore, under the guidelines that have been set forth by the Supreme Court, this Court must uphold the validity of the annexation ordinance as it was adopted.”

The finding of the Chancellor was in accord with the pronouncements of this Court as of the date of the decree. See, e. g., State ex rel. Spoone v. Mayor and Aldermen of Morristown, 222 Tenn. 21, 431 S.W.2d 827 (1968); State v. City of Columbia, 208 Tenn. 59, 343 S.W.2d 888 (1961); Morton v. Johnson City, 206 Tenn. 411, 333 S.W.2d 924 (1960); Witt v. McCanless, 200 Tenn. 360, 292 S.W.2d 392 (1956). In Kingsport v. State, supra, we held, however, that a 1974 legislative enactment, which provided that the municipality shall have the burden of proving that an annexation ordinance is reasonable for the overall well-being of the communities involved, “destroyed all presumptions of validity and demolished the ‘fairly debatable’ rule.” Id. at 812. See Chapter 753, Public Acts of 1974, amending T.C.A. § 6-310. Moreover, we provided the following criteria against which the reasonableness of an annexation ordinance must be tested:

“a. the necessity for, or use of, municipal services;
b. the present ability and intent of the municipality to render municipal services when and as needed;
c. whether the annexation is for the sole purpose of increasing municipal revenue without the ability and intent to benefit the annexed area by rendering municipal services.” 562 S.W.2d at 812.

Following the Kingsport decision, defendant filed a motion under Rule 59 T.R.C.P. which requested the Chancellor to make the additional finding of fact that the annexation ordinance was reasonable. Accordingly, the Chancellor issued an altered decree, which found:

“Based upon a consideration of all the evidence heretofore heard in this cause, including the arguments presented to this Court by both parties on May 22, 1978, the Court does make the following additional findings pursuant to Rule 59:
1. There is the necessity for, or use for, the municipal services proposed for the territory to be annexed in the defendant’s Plan of Services.
2. The defendant has the present ability and intent to render municipal services to the area to be annexed, when and as reasonably needed, and as provided in such Plan of Services.
3. The annexation proposed is not for the sole purpose of increasing municipal revenue, and the defendant does have the present ability and intent to benefit the annexed area by rendering municipal services, as outlined in the Plan of Services.
4. Finally, based upon the entire proof heard in this case and the entire record in this cause, the Court expressly finds that the defendant, the City of Jackson, has carried the burden of proving that the annexation ordinance is for the overall well being of the area to be annexed and the City of Jackson as a whole.”

Therefore, the Chancellor upheld the annexation ordinance, concluding that “the statutory procedural requirements have been met, that the annexation ordinance has been validly passed, and that the reasonableness of the ordinance has been clearly shown by a preponderance of the evidence.”

Appellants assign as error that the amended decree does not comport with T.R. C.P. 59, for the Chancellor had no authority to amend his decree to make further findings of fact. We see no merit to this assignment. T.R.C.P. 59.04 clearly authorizes a trial judge to alter or amend a judgment either on his own motion or that of one of the parties. A classic situation for the application of that rule was presented in this case. The trial judge reconsidered the evidence in the light of a change in the applicable law that occurred after the original decree, and made findings of fact in response to those changes. Had he failed or refused to do so, a remand would be necessary for that purpose.

An additional assignment of error relates to the procedure by which the Jackson Board of Commissioners adopted the ordinance. To wit, appellants urge that the ordinance was passed in contravention to the parliamentary procedure contained in Robert’s Rules of Order, which governs business before the Board of Commissioners as provided in Section 2-4 of the Jackson Municipal Code. The facts indicate that Mayor Conger, as presiding officer, moved for the adoption of the ordinance, but not having received a second to his motion as quickly as he thought, he declared the motion to have died for lack of a second. Commissioner Langford then told the MayT or that he had acted too quickly (about four seconds had elapsed) and that he intended to second the motion. The motion was restated by the Mayor, seconded by Commissioner Langford and unanimously approved by all members of the Board of Commissioners. Even if this irregularity violates Robert’s Rules of Order, that tome specifically provides that where action is unanimous, a violation of the rules is without consequence. Robert’s Rules of Order, § 48, at 202-03 (rev. ed. 1971) states, “By general, or unanimous, or silent, consent the assembly can do business with little regard for the rules of procedure, as they are made for the protection of the minority, and when there is no minority to protect, there is little use for the restraint of the rules, except such as protect the rights of absent members, or the right to a secret vote." That section clearly disposes of appellants’ contention.

We have reviewed the record and agree with the Chancellor that the evidence preponderates in favor of the reasonableness of the annexation. A civil engineer and the chief environmentalist of the Jackson-Madison County Health Department testified most homes in the annexed area are served by septic tanks and that a health hazard existed because of surface drainage problems. The annexation plans include installation of sewer service and curbs and gutters to protect the area from flooding. Testimony was developed at trial that the Northside area lacked a full-time fire service, that police service was inadequate for a developing community and that existing building, electric, fire, gas and plumbing codes were not being enforced. Mayor Conger testified that the annexed area would be provided regular police protection, a new fire station and street lights. His testimony was corroborated by that of a city planner, a fire chief, a city commissioner and an insurance agent, who testified that lower home insurance premiums in the Northside area would result from the annexation. There was additional testimony concerning the added benefits to the Northside area of improved recreational facilities, sanitation services and highway improvements.

In light of the above, we find that appel-lee has established that the annexation would further the health, safety and welfare of the property owners of both the municipality and the annexed area. The improved municipal services that will accrue to the citizens of the Northside area and the need for the citizens of Jackson to control a fringe area development point to the obvious reasonableness of the annexation ordinance. We recently upheld the annexation of the Bemis area to the City of Jackson and were persuaded by evidence similar to that offered by the City in this case. See Pirtle v. City of Jackson, 560 S.W.2d 400, 401 (Tenn.1977). As this Court indicated in Kingsport, furthermore, “The whole theory of annexation is that it is a device by which a municipal corporation may plan for its orderly growth and development.” 562 S.W.2d at 814. It follows that the ordinance does not have as its sole purpose the collection of additional revenues. See State ex rel. Spoone v. Mayor and Aldermen of Morristown, supra.

The decree of the Chancellor upholding the annexation ordinance is affirmed. Costs are adjudged against appellants.

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


author: COOPER, Justice. HENRY, Chief Justice,

text:
    Mr. and Mrs. Walter W. CECIL, Individually and as Mother and Father of Marcus H. Cecil, Deceased, Petitioners, v. David Brian HARDIN, Respondent.
    Supreme Court of Tennessee.
    Dec. 29, 1978.

      J. B. Cobb, Hayden Lait, Memphis, for petitioners.
    Robert M. Fargarson, Memphis, for respondent.
   OPINION

COOPER, Justice.

This is an action for the wrongful death of Marcus Cecil, who was killed when he was struck by a car in which the respondent, David Hardin, was a passenger. At the close of the proof, the trial judge directed a verdict for Hardin. The Court of Appeals upheld his ruling. We affirm.

For the most part, the evidence is not in dispute. Joe David Edwards, age 20, and Hardin, age 21, were friends of long standing. One Saturday evening, they met at the apartment of a mutual acquaintance in Memphis. While there, both had several beers, and it appears that Hardin smoked some marijuana. In addition, Edwards took two pills of a controlled substance, though this was not known to Hardin until later in the evening. Edwards and Hardin left the apartment together, in Edwards’ car, with plans to go to a party together later that night. The details of their further activities that night, in so far as they are material to the issues before this court, will be dealt with presently. At this point, it will suffice to say that the two spent the rest of the night driving about the city. During the course of their travels, they bought and consumed more beer, and Hardin took several pills of methaqualine. By late in the evening, by their own admission, both were under the influence of alcohol and drugs. At about 1:00 a. m., the car, with Edwards driving, struck Marcus Cecil as he rode his bicycle along the side of the road. Although both youths knew that they had collided with something, by their account neither realized that it was a person and they did not stop to render aid. They were arrested by police some time later, after two other accidents, these relatively minor.

Both Hardin and Edwards were sued for Cecil’s wrongful death, and the two were tried jointly. The jury returned a verdict against Edwards, which was not appealed. However, at the close of the proof, the trial judge directed a verdict for Hardin, holding that there was no proof either of any negligence on his part that was a proximate cause of Cecil’s death, or of any relationship between Hardin and Edwards such that the latter’s negligence might be imputed to Hardin. It is the propriety of that action that is before this court.

On review of the grant of a directed verdict on motion of a defendant, it is not the office of an appellate court to weigh the evidence. Rather, it must take the strongest legitimate view of the evidence in favor of the plaintiff, indulging in all reasonable inferences in his favor, and disregarding any evidence to the contrary. The trial judge’s action may be sustained only if there is no material evidence in the record that would support a verdict for the plaintiff, under any of the theories that he has advanced. Keller v. East Tennessee Production Credit, 501 S.W.2d 810 (Tenn.App.1973).

In the instant case, the petitioners insist that there is material evidence from which a jury could find both that Hardin was guilty of negligence, independent of the acts of Edwards, that was a proximate cause of Cecil’s death, and that Hardin was jointly liable with Edwards for damages caused by Edwards’ negligent operation of the automobile. The basis of this latter insistence is two-fold: First, the petitioners insist that Hardin and Edwards were engaged in a joint venture, and, secondly, they argue that Hardin aided and abetted Edwards in a series of unlawful acts that resulted in the accident.

With respect to the contention that the jury could have found that Hardin was guilty of independent acts of negligence, the petitioners have advanced several theories. First, they have argued that Hardin was negligent in permitting Edwards to drive, knowing him to be under the influence of either drugs or alcohol. We find no merit in this argument. A passenger has no duty to the public to control or to attempt to control the operation of a vehicle where he has no right to do so, either as a result of his relationship to it or to the driver. 6 Blashfield, Automobile Law & Practice, § 251.6 et seq. (3d ed. 1966). See, e. g., Coffman v. Kennedy, 74 Cal.App.3d 28, 141 Cal.Rptr. 267 (1977); Sloan v. Flack, 150 So.2d 646 (La.App.1963); Mims v. Coleman, 248 S.C. 235, 149 S.E.2d 623 (1966). Cf. Restatement (Second) of Torts, § 315. Here, there is no evidence from which the jury might have found that Hardin had a right to control the operation of the automobile, as opposed to the mere “right” to make suggestions, in which Edwards might or might not acquiesce. Compare Malbrough v. Davidson, 219 So.2d 313 (La.App.1969); Galvan v. Sisk, 526 S.W.2d 717 (Tex.Civ.App.1975).

The petitioners have also claimed that liability could have been imposed on Hardin as a result of his failure to stop and give assistance to Cecil, after the latter had been struck by the automobile. In this, the petitioners are also in error. A passenger is under no legal duty to stop and give assistance to a person injured by the car in which he is riding, unless the passenger’s conduct caused the accident or there is some special relationship either between the passenger and the driver that would make the passenger jointly responsible with the driver for the accident, or between the passenger and the injured party independently giving rise to such a duty to aid. See Restatement (Second) of Torts, § 322; Annot., 33 A.L. R.3d 301; 57 Am.Jur.2d Negligence § 41. The petitioners have made no allegation of any special relationship between Cecil and Hardin. Thus, in order to recover on this theory, the petitioners must show that Hardin was responsible for the accident itself, directly or as a result of his relationship with Edwards. As may be seen from the balance of this discussion, the petitioners have failed to do either.

Implicit in the petitioners’ argument is yet a third theory of liability, that Hardin was negligent in providing beer for Edwards, knowing both that he was under the influence of alcohol or drugs, and that he would be driving. However, even assuming that the petitioners are correct, and that the jury could have found that Hardin’s actions in this respect were negligent, we do not believe that it could have imposed liability on him based on that finding. At common law, an individual who furnished alcohol to another was not liable for any damages resulting from the other’s intoxication, even if those damages were foreseeable, in part because the other’s acceptance of the intoxicants was considered an independent intervening cause, cutting off any liability. Tarwater v. Atlantic Co., 176 Tenn. 510, 144 S.W.2d 746 (1940). See also Annot., 75 A.L.R.2d 821; 45 Am.Jur.2d Intoxicating Liquors § 554. Courts of this state have modified the common law rule in the past, holding, for instance, that liability might be imposed in certain circumstances on commercial purveyors of liquor who provided it to an intoxicated customer. See, e. g., Mitchell v. Ketner, 54 Tenn.App. 656, 393 S.W.2d 755 (1964). However, we have found no decision, and none has been cited to us, in which such liability has been imposed on those who provided intoxicating beverages in a social context, as Hardin did here, nor do we believe that we should set such a precedent. So great a departure from settled law, with its myriad implications for casual social intercourse, is better left to the legislature. See Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965); Meade v. Freeman, 93 Idaho 389, 462 P.2d 54 (1969); Miller v. Owens-Illinois Glass Co., 48 Ill.App.2d 412, 199 N.E.2d 300 (1964); Edgar v. Kajet, 84 Misc.2d 100, 375 N.Y.S.2d 548 (1975), aff’d 55 A.D.2d 597, 389 N.Y.S.2d 631 (1976); Garcia v. Hargrove, 46 Wis.2d 724, 176 N.W.2d 566 (1970).

As we mentioned previously, the petitioners have contended as well that there is evidence from which the jury could have found that Hardin was responsible for the various negligent and unlawful acts committed by Edwards, which, for the purposes of this discussion, may be assumed to have been proximate causes of Cecil’s death. To establish this joint responsibility and thus liability, the petitioners have argued first that there was evidence from which the jury could have found that Hardin and Edwards were engaged in a joint venture. We disagree. The elements that need to be shown to establish a joint venture among several parties are a common purpose, some manner of agreement among them, and an equal right on the part of each to control both the venture as a whole and any relevant instrumentality. Spencer Kellogg & Sons, Inc. v. Lobban, 204 Tenn. 79, 315 S.W.2d 514 (1958); Evans v. Allstate Insurance Co., 194 So.2d 762 (La.App.1967); Manley v. Horton, 414 S.W.2d 254 (Mo.1967). These elements have not been shown here. In particular, as we noted above, there was no evidence from which the jury might have found that Hardin had a right to control the operation of the vehicle. Furthermore, the evidence shows that the two youths were associating together casually, for social purposes only. Liability predicated on a joint venture theory of mutual responsibility is not imposed in instances in which the parties join together purely for pleasure, but is reserved, rather, for cases in which the parties associate for business, or expense sharing, or some comparable arrangement. See, e. g., Easter v. McNabb, 97 Idaho 180, 541 P.2d 604 (1975); Hall v. Blackham, 18 Utah 2d 164, 417 P.2d 664 (1966). Cf. Schwartz v. Johnson, 152 Tenn. 586, 280 S.W. 32 (1926).

Finally, the petitioners have argued that under the evidence presented at trial Hardin could be held liable for Edwards’ acts because he “aided and abetted” Edwards’ unlawful activities. Again, we must disagree. This theory of recovery is based on the civil liability imposed at common law of those who aid others in unlawful acts, and is distinct from that which imposes liability on the basis that the parties participated in a joint venture. Under it, an individual who participates in an unlawful activity in concert with others is liable for any damages resulting from acts committed by his compatriots in the course of that activity. Huckeby v. Spangler, 521 S.W.2d 568 (Tenn.1975). To impose such liability, the jury must find that the defendant knew that his companions’ conduct constituted a breach of duty, and that he gave substantial assistance or encouragement to them in their acts. Restatement of Torts, § 876(b). See, e. g., Cobb v. Indian Springs, Inc., 258 Ark. 9, 522 S.W.2d 383 (1975); American Family Mutual Insurance Co. v. Grim, 201 Kan. 340, 440 P.2d 621 (1968); Nelson v. Nason, 343 Mass. 220, 177 N.E.2d 887 (1961); Lemons v. Kelly, 239 Or. 354, 397 P.2d 784 (1964). We do not believe that the jury had before it evidence from which it could have found that Hardin gave such “substantial assistance and encouragement” to Edwards in the several unlawful acts committed by him over the course of the evening, which acts the jury undeniably could have found were material factors in causing Cecil’s death. Compare Haddock v. Stewart, 232 Md. 139, 192 A.2d 105 (1963). First, with respect to the drugs illegally taken by Edwards, there is no indication in the record that Hardin was involved in this crime in any way. The evidence is undisputed that Edwards took all the drugs that he consumed that evening prior to leaving with Hardin, and that Hardin did not even learn that Edwards had taken any drugs until some time after the fact. The second offense committed by Edwards in which Hardin arguably was involved was that of driving under the influence of alcohol or drugs, this involvement being based both on Hardin’s failure to prevent Edwards from driving, knowing him to be intoxicated, and the fact that he provided some of the beer that Edwards consumed. This, of itself, is an insufficient basis on which to impose liability. Hardin did no more than acquiesce in Edwards’ determination to drive his own car. As we have already noted, there is, at present, no legal duty on the part of a social guest to police a driver’s sobriety, and we do not think it practical for us to impose one. As for the argument that would hold Hardin liable under this theory because he provided beer for Edwards, we disagree for the same reasons that we refused to hold that Hardin was independently liable for the presumed negligence of the same acts, and explained more fully at that point. To impose liability on this basis would greatly expand the liability of those who provide alcohol to others in a social context, an expansion that we believe would be inappropriate. Finally, we do not feel that Hardin may be held liable, on the basis of the record before us, for Edwards’ failure to stop after the accident and give aid to Cecil. Cf. T.C.A. § 59-1003. Again, as we noted previously, there is no evidence in the record that Hardin had the right to direct the operation of the vehicle. Neither is there any indication that he made any attempt to keep Edwards from stopping. The record shows at most that Hardin acquiesced in Edwards’ determination not to stop. While this may be morally indefensible, it falls far short of the “substantial assistance and encouragement” of Edwards’ illegal acts that the petitioners must show to justify the imposition of liability on Hardin under this theory.

As there was no material evidence upon which the jury might have based a verdict against Hardin under any of the theories advanced by the petitioners, the trial judge was correct to direct a verdict as he did. The result reached in both the trial court and the Court of Appeals is affirmed. Costs will be taxed to the petitioners.

FONES and HARBISON, JJ., concur.

HENRY, C. J., and BROCK, J., dissent.

HENRY, Chief Justice,

dissenting.

I respectfully dissent.

In order to demonstrate the enormity of the tragedy directly resulting from the concerted criminal conduct and unlawful activities of Edwards and Hardin, I quote the graphic description contained in the opinion of the Court of Appeals:

The deceased was riding his bicycle on Walnut Grove Road, evidently near the curb, when he was struck by the Edwards vehicle, which according to a witness, was being driven in an erratic manner. The head of the deceased struck the right corner of the windshield, which collision drove the deceased’s head through the windshield, severed the great artery in the throat and sprayed blood and left flesh clinging to the interior of the vehicle and on the clothing of the defendants. The bicycle was dragged beneath the car for over 100 feet. Edwards drove on up to a stop light and stopped and then continued on for some miles just driving around the neighborhood, stopping at a girlfriend’s house, and then continuing on until he went over onto the wrong side of the road, crashed into a utility pole and was apprehended by the police. Both Hardin and Edwards testified they were not aware that they had hit someone, but in their stupor were only aware that the windshield had somehow broken and wondered how it was going to be paid for.

There can be no legitimate basis for reaching any conclusion but that these two defendants acted in concert and with a common and fixed intent to violate the criminal laws of the State. They combined and confederated on an expedition of drinking, drugging and driving, culminating in the wrongful death of an innocent eighteen year old boy. They were joint tortfeasors in every sense of the word and I am unable to separate their conduct, one from the other. The fortuitous fact that Edwards was driving is irrelevant, given the circumstances of this case.

Further, I view Schwartz v. Johnson, 152 Tenn. 586, 280 S.W. 32 (1925) as being irrelevant to this controversy. I have no quarrel with the Schwartz holding with respect to the general requirement that in order to make out a case of joint enterprise each of the parties “must have authority to control the means or agencies employed to execute the common purpose.” 152 Tenn. at 590, 280 S.W. at 33. I must confess, however, that I am more comfortable with this theory in a suit between two culprits (as in Schwartz) than in the instant suit between the representatives of the deceased victim and two characters engaged in a binge of drunken and drugged revelry.

Further, I find it incongruous to speak in terms of control in a situation where its very absence was the cause of the injury. How much control was exercised in a case where a boy on a bicycle was struck with such force that his head was driven through the windshield, the bicycle dragged more than a hundred feet with the driver and passenger so stupified that they were unaware that they had hit anyone or anything?

In my view this is not a joint enterprise situation and the criteria of such an activity are not applicable.

The rules relating to joint tortfeasors are discussed in detail in 74 Am.Jur.2d, Torts, § 61 et seq. In the opening section the general rule is set forth:

[T]he rule of joint and several liability of tortfeasors prevails where the tortfeasors act in concert or unity of action. The rule applies to tortfeasors who intentionally unite in the wrongful act, or who are present and assist or participate therein, actively and with common intent, so that the injury results from the joint wrongful act of the wrongdoers.

This treatise accurately reflects Tennessee decisional law. In Hale v. City of Knoxville, 189 Tenn. 491, 226 S.W.2d 265 (1950) this Court, speaking through Justice Gailor, said:

The Tennessee definition of joint tort-feasors, which has been frequently quoted and often applied is: “When a tort is committed by two or more persons jointly, by force directly applied, or in the pursuit of a common purpose or design, or by concert, or in the advancement of a common interest, or as the result and effect of joint concurrent negligence, there is no doubt but that all the tort-fea-sors are jointly and severally liable for all the damages done the injured party, and that these damages may be recovered in joint or several actions, although the wrongful conduct or negligence of some may have contributed less than that of others to the injury done.” Swain v. Tenn. Copper Co., 111 Tenn. 430, 438, 78 S.W. 93, 94. (Emphasis supplied) 189 Tenn. at 502 226 S.W.2d at 269-70.

In Blalock v. Temple, 38 Tenn.App. 463, 276 S.W.2d 493 (1955) the Court of Appeals correctly and succinctly stated the rule:

. that where two or more persons engage in an unlawful act and one of them commits a serious, civil injury upon a person not engaged therein, all are equally liable for damages to the injured party. 276 S.W.2d at 496.

In my view this case is controlled by our recent decision in Huckeby v. Spangler, 521 S.W.2d 568 (Tenn.1975), which the majority cites for the proposition that:

[A]n individual who participates in an unlawful activity in concert with others is liable for any damages resulting from acts committed by his compatriots in the course of that activity.

And then in one fell swoop attempts to devitalize the holding by saying that:

[t]o impose such liability, the jury must find that the defendant knew that his companions’ conduct constituted a breach of duty, and that he gave substantial assistance or encouragement to them in their acts.

Assuming arguendo that this language may be read into, or fairly inferred, from our holding in Huckeby, the result reached by the majority totally ignores the fact that at all times Hardin was a planner, a participant, and a principal with his cohort, Edwards, in a night featuring dangerous, deadly and unlawful conduct. He therefore “gave substantial assistance or encouragement” justifying the imposition of liability under this revised interpretation of Hucke-by-

In Huckeby we held simply and pointedly that:

There is no question but that when two or more persons engage in an unlawful act and one of them commits a serious civil injury upon a person not engaged therein, all are equally liable for damages to the injured party. 521 S.W.2d at 573.

It is the phrase not engaged therein that differentiates this factual situation from that of Schwartz v. Johnson and its progeny. In this case, had Hardin, a participant, sued Edwards, a coparticipant, he would have been barred at the threshold by Schwartz in view of his participation. But not so where the suing plaintiff was an innocent bystander.

The majority does not even allude to the celebrated case of Eager v. State, 205 Tenn. 156, 325 S.W.2d 815 (1959), wherein this Court sustained a conviction for involuntary manslaughter against a “guest passenger” who was riding while drunk. The facts are very similar to the instant case. There the Court held:

[WJhen one sits by the side of another and permits him without protest to operate the vehicle on a highway in a state of intoxication . . . the one sitting by is as guilty as the man at the wheel. 205 Tenn. at 169, 325 S.W.2d at 821.

Chief Justice Neil, in a concurring opinion, brought the whole problem into focus:

[Liability of one who occupies an automobile with a drunken driver is dependent upon the degree of cooperation between them. The criminal negligence of the drunken driver is imputable to drunken occupants of the car when the evidence shows some degree of concert of action. (Emphasis supplied) 205 Tenn. at 172, 325 S.W.2d at 822.

Under Eager, Hardin is liable to prosecution and subject to conviction for at least involuntary manslaughter. To hold that one guilty of criminal misconduct is free of culpable negligence is contrary to reason and is an obvious distortion.

I would reverse and remand for trial.

I am authorized to state that Mr. Justice BROCK joins in this dissent.

      . While its precise nature does not appear i the record before us, it appears to have been a barbiturate.

      . However, the evidence that might support a finding that any alcohol consumed by Edwards contributed to his inability to competently control the automobile is exceptionally weak. At the time of his arrest, Edwards had a blood alcohol level of .01 percent, far below that which would imply that the alcohol, of itself, had any effect on his ability to drive. Cf. T.C.A. § 59-1047. While there was lay testimony, from Edwards himself, that alcohol tended to increase the effect of the drug that he had taken, there is no evidence as to whether the nature and extent of that increase was such as to materially affect Edwards’ condition.

      . Numerous other jurisdictions have departed from the common law rule to various degrees, either by statute or by judicial decision. See, e. g., Lewis v. State, 256 N.W.2d 181 (Iowa 1977); Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618 (1973); Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959).

      . It is distinct, also, from the criminal responsibility imposed by statute. See T.C.A. §§ 59-1016; State v. Morris, 224 Tenn. 437, 456 S.W.2d 840 (1970); Williams v. State, 209 Tenn. 208, 352 S.W.2d 230 (1961).


author: HENRY, Chief Justice.

text:
    Russell SIKES, Appellant, v. COLONIAL RUBBER CO. and Fireman’s Fund Ins. Co., Appellees.
    Supreme Court of Tennessee.
    Dec. 29, 1978.
    T. Robert Hill, Hill & Sanders, Jackson, for appellant.
    Russell L. Moore, Jr., Ewell, Farmer & Moore, Dyersburg, for appellees.
   OPINION

HENRY, Chief Justice.

In this workmen’s compensation case, appellant Russell Sikes, a resident of Obion County, was injured while working for the Colonial Rubber Company in Dyer County. Sikes alleges that he is completely disabled as a result of a fall that injured his legs and aggravated a preexisting but dormant arthritic condition. The sole question on appeal is whether the Chancellor correctly dismissed the action for improper venue. We hold that venue was proper as to the defendant insurance company.

I.

Sikes originally filed suit in Dyer County against Colonial Rubber, a foreign corporation with a manufacturing plant in Dyers-burg, and its insurer, Fireman’s Fund Insurance Company. Fireman’s Fund is also a foreign corporation qualified to do business in Tennessee. Pursuant to T.C.A. § 56-203(3), it had appointed the Commissioner of Insurance and Banking as its agent for service of process.

The Dyer County action was voluntarily nonsuited and later renewed against both defendants in Obion County, where Sikes resides. Process was served upon Colonial Rubber in Dyer County and upon Fireman’s Fund through the Commissioner of Insurance. The defendants filed a motion to dismiss for improper venue under Rule 12 of the Tennessee Rules of Civil Procedure, contending that Dyer County was the proper venue. The Chancellor granted the motion dismissing the action and this appeal followed.

II.

Section 50-1018, T.C.A. provides in part:

The party filing the petition may, at his option, instead of filing the same before the county judge or chairman [of the county court in which the accident occurred], file the same as an original petition in either the circuit, criminal, or chancery court of the county in which petitioner resides or in which the alleged accident happens, in which event summons shall be issued by the clerk of the court in which the proceeding is instituted . .

In Chambers v. Sanford and Treadway, 154 Tenn. 134, 289 S.W. 533 (1926), the Court held that workmen’s compensation actions are transitory in nature and are subject to the rules generally regulating venue. The current venue provision governing transitory actions, § 20-401, provides:

In all civil actions of a transitory nature, unless venue is otherwise expressly provided for, the action may be brought in the county where the cause of action arose or in the county where the defendant resides or is found. (Emphasis supplied)

There has been considerable confusion in the cases addressing the proper venue for workmen’s compensation actions. See, e. g., Redman v. DuPont Rayon Co., 165 Tenn. 585, 56 S.W.2d 737 (1933); Brown v. Stone & Webster Engineering Corp., 181 Tenn. 293, 181 S.W.2d 148 (1944); Flowers v. Aetna Casualty & Surety Co., 186 Tenn. 603, 212 S.W.2d 595 (1948); T. H. Mastin & Co., v. Loveday, 202 Tenn. 589, 308 S.W.2d 385 (1957); General Accident Fire & Life Assurance Corp. Ltd., v. Kirkland, 207 Tenn. 72, 338 S.W.2d 549 (1960).

In Insurance Company of North America v. Lane, 215 Tenn. 376, 386 S.W.2d 513 (1965), the Court attempted to reconcile venue cases by holding that:

Workmen’s compensation cases must be brought (1) in the county of Petitioner’s residence, or (2) in the county in which the accident happened, if the defendant is subject to service of process in either of those counties, and if the insurance company alone is being sued, and service of process can be obtained on the Insurance Commissioner, venue is restricted to the county of Petitioner’s residence or where the accident occurred; or, (3) that the petition may be filed in any county of the State where the Defendant maintains an office or agent for service of process only if the Defendant is not servable in either of the counties referred to aforesaid in keeping with the Workmen’s Compensation Act, T.C.A. § 50-1018. 215 Tenn. at 391, 392, 386 S.W.2d at 520.

Construing this language a year later in Human v. Liberty Mutual Insurance Company, 219 Tenn. 335, 409 S.W.2d 536 (1966), a majority of the Court held that venue in the county of the plaintiff’s residence was not proper in an action against the insur-anee company alone if the insurer had an office or agent in another county of the State. In dissent, Justice Harbison (sitting specially) and Justice Creson maintained that this result was contrary to prior decisions and to the statutes regulating insurance companies.

The Human decision has been cited only once. In Burton v. Borden Foods Co., 494 S.W.2d 775 (Tenn.1972), Justice Humphreys wrote:

In Human the majority of this Court, bound by precedent, held that the right to bring a Workmen’s Compensation suit in a county where the petitioner resides or where the accident occurred, although indicated as a right by § 50-1018 T.C.A., is subject to the rules generally regulating venue, and thus is subject to the condition that the defendant be servable with process in the county where the suit was brought, as in other civil cases. 494 S.W.2d at 776.

Under the facts presented in Burton, the Court held that venue was proper although the defendant did not have an office or agent in the county when the action was filed. Citing Justice Harbison’s dissent in Human, the Court stated:

A primary object being justice, this result is also prompted by the strongly held opinion that § 50-1018 T.C.A. authorizes Workmen’s Compensation suits to be brought in the county in which the petitioner resides or in which the alleged accident happened. 494 S.W.2d at 777.

Thus, under § 50-1018, T.C.A. venue of a workmen’s compensation action lies in the county in which the petitioner resides, or in the county in which the accident or injury was incurred, but subject to the general rules relating to transitory actions, including the requirement that “the defendant be servable with process in the county where the suit was brought, as in other civil cases.” 494 S.W.2d at 776. Applying this rule to the instant case, Colonial Rubber Company was not subject to suit in Obion County.

III.

Shortly after the Human decision, the Legislature amended T.C.A. § 56-203, which outlines the requirements an insurance company must meet to be qualified to do business in Tennessee, by adding the following sentence to subsection 3:

Service of process from any county in this state upon the commissioner of insurance and banking or his chief deputy by the proper officer of the county in which the commissioner or his chief deputy may have his office shall establish proper venue in the county from which the process was issued, if the plaintiff resides in that county, whether the insurance company has an office or agency located in one or more other counties of this state or not. (Emphasis supplied)

Under the “unless venue is otherwise expressly provided for” clause in the general venue statute, T.C.A. § 20-401, this amendment establishes proper venue for an action against the insurance company in the county of the employee’s residence. Thus, service of process on the Commissioner of Insurance established proper venue against the defendant Fireman’s Fund Insurance Company in Obion County.

The Chancellor’s dismissal of the action against Colonial Rubber Company was proper and is affirmed. Dismissal of the action against Fireman’s Fund is reversed and the cause is remanded to the Chancery Court of Obion County for a hearing on the merits.

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


text:
    Bobby BANDY and Larry Bandy, Petitioners, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Jan. 2, 1979.
    Charles H. Beaty, Robert L. Swann, Phillip A. George, Gallatin, for petitioners.
    Brooks McLemore, Jr., Atty. Gen., William O. Kelly, Asst. Atty. Gen., Nashville, for respondent.
   OPINION

FONES, Justice.

Defendants were convicted of concealing stolen property valued at less than one hundred dollars and sentenced to serve not less than one nor more than five years. The Court of Criminal Appeals affirmed the convictions. Our grant of certiorari was limited to defendants’ first assignment of error asserting, in substance, that the property had lost its status as stolen property because it had been recaptured by the police before it came into defendants’ hands with the result that an essential element of the crime was missing.

The evidence adduced at trial showed that defendant Bobby Bandy requested Gary Rogers to steal E-9 herbicide, for him from the Sumner County Farmer’s Co-Op. On March 22, 1976, Rogers burglarized the Co-Op but could not obtain the requested herbicide and instead stole a socket wrench set. The following day, Rogers telephoned Bandy to inform him of the items that he had stolen. Bandy told him to bring the stolen goods to him.

Rogers subsequently went to the Gulf service station where he was employed, and was questioned by Detective Beasley concerning recent C.B. radio thefts in the area. As a result of his questioning, Beasley was allowed to search a car belonging to Leon McCoin, in which Rogers had stored the socket wrench set and jumper cables and cattle prods that he previously had stolen. Upon discovering the property and further questioning of Rogers, Beasley persuaded him to cooperate with police and set up an appointment with Bandy for 7:00 that evening at Bandy’s package store.

Pursuant to the police plan, Rogers drove to Bandy’s store with Detective Beasley hidden in the car’s trunk. Upon arrival Bandy directed Rogers to follow his pickup truck down the Old Saw Mill Road. At this time, Bandy’s uncle, Larry Bandy, arrived and followed in his pickup truck closely behind Roger’s automobile. Shortly thereafter, Bobby Bandy stopped his vehicle at a secluded area and told Rogers to give him the stolen goods. Bandy put the goods in his car’s trunk, at which point Detective Beasley appeared and with the aid of two other policemen who had been conducting surveillance of the transaction, arrested defendants.

This is a case of first impression in this State. In affirming the convictions, the Court of Criminal Appeals recognized that cases in other jurisdictions have established the rule that a conviction of receiving or concealing stolen property cannot be sustained where the evidence shows that the stolen goods have been recovered by the police and have lost their character as stolen property, nullifying an essential element of the crime. See, e. g., United States v. Cawley, 255 F.2d 338 (3d Cir. 1958); Felker v. State, 254 Ark. 185, 492 S.W.2d 442 (1973); People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906). Without citation of authority, the intermediate court held that a mere fortuitous event, unknown to defendants, should not allow them to escape the consequences of their criminal intent and criminal acts, in furtherance thereof. Our research reveals that while no jurisdiction supports that result, there is good authority to the effect that a defendant may be convicted of an attempt to receive or conceal stolen property notwithstanding the fact that, unknown to him, the stolen property has lost its character as such through recapture. People v. Rojas, 55 Cal.2d 252, 10 Cal.Rptr. 465, 358 P.2d 921 (1961), exemplifies that line of cases. There is a line of cases, however, that rejects conviction for an attempt to receive or conceal stolen property in the circumstances under consideration, following the 1906 landmark decision in People v. Jaffe, supra. We are persuaded that the reasoning and result of Rojas should be adopted in Tennessee.

Defendants rely on People v. Jaffe, supra, in which the court held, under facts identical to the case at bar, that an attempt to do an act which would not be criminal if completed could not itself be criminal regardless of the actor’s intent. Accord, United States v. Berrigan, 482 F.2d 171, 187-90 (3d Cir. 1973); People v. Jelke, 1 N.Y.2d 321, 329, 152 N.Y.S.2d 479, 135 N.E.2d 213, 218 (1956); Booth v. State, 398 P.2d 863 (Okl.Cr.1964). The reasoning of the Jaffe decision became the cornerstone of the doctrine of “legal impossibility”, and courts have recognized a defense to inchoate crimes based on this doctrine. In contrast, courts generally have recognized that a “factual impossibility” would not provide a defense to an attempt crime. Thus a pickpocket could be convicted of an attempt to steal even though his victim’s pocket was empty. E. g., State v. Wilson, 30 Conn. 500 (1862). Similarly, this Court has held that a defendant who had been observed to have opened a cash drawer could be convicted of attempt to commit larceny, despite the absence of evidence that there were money or other valuables in the drawer. Clark v. State, 86 Tenn. 511, 8 S.W. 145 (1888). See generally Annot., Impossibility of Consummation of Substantive Crime as Defense in Criminal Prosecution for Conspiracy or Attempt to Commit a Crime, 37 A.L.R.3d 375 (1971) and cases cited therein. These cases simply have recognized that the defendant was deserving of conviction just as much as if he had succeeded; the fortuitous circumstances that prevented the attemptor’s success should not exculpate him. As one commentator astutely observed, “No sane man ever really attempts to do what he knows is impossible.” R. Perkins, Criminal Law 489 (1957).

The “legal impossibility” doctrine in modern times uniformly has been discredited by commentators who point out the obvious problems in distinguishing between “factual” and “legal” impossibility and its distortion of the underlying policy of attempt law. In People v. Rojas, supra, the court struck a death knell for the legal impossibility defense and held that a defendant could be convicted of attempt to receive stolen goods even though police, prior to delivery, had recovered the goods. In Rojas, the court reasoned:

“In our opinion the consequence of intent and acts such as those of defendants here should be more serious than pleased amazement that because of the timeliness of the police the projected criminality was not merely detected but also wiped out. . . .”10 Cal.Rptr. at 468, 358 P.2d at 924.

The Rojas decision has been approved recently in other jurisdictions. See Darr v. People, 568 P.2d 32 (Colo.1977); Darnell v. State, 558 P.2d 624 (Nev.1976); State v. Niehuser, 533 P.2d 834 (Or.App.1975); State v. Carner, 25 Ariz.App. 156, 541 P.2d 947 (1975); State v. Tropiano, 154 N.J.Super. 452, 381 A.2d 828 (1977).

We note that Rojas and its progeny are consistent with the Model Penal Code § 5.01(1)(a). However, we do not adopt the Model Penal Code provision because its general application to attempt crimes would take us beyond the scope of the issues involved in this case.

The foregoing brings us to the result that the convictions of defendants for concealing stolen property cannot be sustained, but that the proof will support convictions for an attempt to conceal stolen property.

In State v. Staggs, 554 S.W.2d 620 (Tenn.1977), we held that T.C.A. § 39-603 is our general attempt statute and that an attempt is a lesser included offense within any felony or crime punishable by imprisonment in the State Penitentiary, unless the punishment is otherwise prescribed. That case also affirms earlier cases in prescribing three elements of an attempt crime: (1) an intent to commit a specific crime, (2) an overt act, and (3) failure to consummate the crime. Gervin v. State, 212 Tenn. 653, 371 S.W.2d 449 (1963); Hall v. State, 490 S.W.2d 495 (Tenn.1973); Bennett v. State, 530 S.W.2d 788 (Tenn.Cr.App.1975). The evidence here establishes that these requirements have been met; Bobby Bandy and Larry Bandy, as aider and abettor, did manifest an intent to commit the crime of concealing stolen goods. The acts of the defendants clearly went beyond mere preparation. Cf. Dupuy v. State, 204 Tenn. 624, 325 S.W.2d 238 (1959). Finally, there was a failure to consummate the substantive offense because of the fortuitous act of the police in taking protective custody of the goods and negating their stolen status, pri- or to delivery to defendants.

Pursuant to T.C.A. § 39-4218 the crime of receiving or concealing stolen property under the value of one hundred dollars is punishable by imprisonment in the State Penitentiary for not less than one nor more than five years, and it follows that our holding in Staggs brings an attempt to commit that crime within the general attempt statute, T.C.A. § 39-603.

In these circumstances appellate courts in Tennessee have authority to order a reduction in degree of the offense for which defendants were convicted when the evidence does not support the higher crime and does support the lesser included offense. Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900 (1944); Peters v. State, 521 S.W.2d 233, 236 (Tenn.Cr.App.1974). However, Corlew requires that this Court reduce the punishment to the minimum prescribed for the lesser offense committed by defendants to avoid violation of “any beneficial right . . . secured to him by the Constitution, or the statute.” 181 Tenn. at 224, 180 S.W.2d at 901. The punishment prescribed in T.C.A. § 39-603 is “imprisonment in the penitentiary not exceeding five (5) years, or, in the discretion of the jury, by imprisonment in the county workhouse or jail not more than one (1) year, and by fine not exceeding five hundred dollars ($500).” The imposition by this Court of the absolute minimum under that statute would be an absurdity. We must therefore resort to the procedure utilized in Huffman v. State, 200 Tenn. 487, 497-98, 292 S.W.2d 738, 742-43 (1956) by remanding this case to the trial court to allow the jury to fix the punishment under a charge that defendants are guilty of attempt to conceal stolen property and that their punishment is to be fixed under T.C.A. § 39-603. See Lay v. State, 501 S.W.2d 820 (Tenn.Cr.App.1973).

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

      . The legal impossibility defense has been raised and approved in a wide variety of cases. See, e. g., Wilson v. State, 85 Miss. 687, 38 So. 46 (1905) (alteration of immaterial portion of draft did not establish attempted forgery); State v. Taylor, 345 Mo. 325, 133 S.W.2d 336 (1939) (actor who bribed a person believed to be a juror, but who was not a juror, not guilty of attempt to corrupt a juror); State v. Guffey, 262 S.W.2d 152 (Mo.App.1953) (hunter who shot a stuffed deer believing it to be alive had not attempted to take a deer out of season); Foster v. Commonwealth, 96 Va. 306, 31 S.E. 503 (1898) (defendant under 14 conclusively presumed incapable of committing rape and cannot be convicted of attempted rape).

      . See generally LeFave & Scott, Criminal Law § 60 (1972); Hall, General Principles of Criminal Law 586-99 (2d ed. 1960); Elkind, Impossibility in Criminal Attempts: A Theorist’s Headache, 54 Va.L.Rev. 20 (1968); Hughes, One Further Footnote on Attempting the Impossible, 42 N.Y.U.L.Rev. 1005 (1967); Keedy, Criminal Attempts at Common Law, 102 U.Pa.L. Rev. 464, 476-89 (1955); Smith, Two Problems in Criminal Attempts, 70 Harv.L.Rev. 422, 435-48 (1957).

      . Section 5.01 of the Model Penal Code provides:
      Section 5.01 Criminal Attempt
      (1) Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
      (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
      (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result, without further conduct on his part; or
      (c) purposely does or omits to do anything which, under the circumstances as he believed them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime.
      For a discussion of the rationale of this section, see Wechsler, Jones and Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 61 Colum.L.Rev. 571, 573-92 (1961).


author: BROCK, Justice.

text:
    Robert S. HOWARD, Petitioner, v. Paul M. BOGART, Superintendent of Schools of Sevier County, Tennessee, Respondent.
    Supreme Court of Tennessee.
    Jan. 2, 1979.

      Charles Hampton White, Nashville, H. Dennis Jarvis, Jr., Sevierville, for petitioner.
    W. Henry Ogle, Sevierville, for respondent.
   OPINION

BROCK, Justice.

Petitioner, Howard, plaintiff in the trial court, brought this action for damages against the defendant, Bogart, Superintendent of Schools of Sevier County, Tennessee, alleging that the defendant had unlawfully interfered with the plaintiff’s rights as the “Title I Coordinator” of the Sevier County School System for the school year 1971-1972, in that, the defendant had padlocked the offices of the Title I Coordinator and denied access to the records located therein, thereby preventing and frustrating the plaintiff’s performance of his duties in said position.

The defense offered by the defendant Superintendent was that he, as Superintendent of Schools of Sevier County, had not recommended plaintiff’s employment as the Title I Coordinator and, therefore, that the plaintiff’s employment in that position by the Sevier County Board of Education, without the concomitant recommendation of the defendant Superintendent, was invalid under the provisions of Section 7(9), Chapter 439, Public Acts of 1971. That statutory provision is as follows:

“All professional personnel employed in the minimum foundation school program of an equalizing county, city, or special school district, or to be paid from any public funds, shall be recommended by the local superintendent of schools and elected by the local school board of education; and all nonprofessional personnel initially employed under the said program shall be so recommended and elected.”

The case was tried before the circuit judge without a jury and that court found the issues in favor of the plaintiff and awarded damages of $5,000. The defendant Superintendent appealed to the Court of Appeals which reversed the judgment of the trial court and dismissed the complaint, holding that the above quoted statutory provision required the recommendation or concurrence of the Superintendent of Schools in order for the Sevier County Board of Education to enter into a valid .contract of employment with the plaintiff. The court, therefore, concluded that the petitioner’s contract of employment with the Sevier County Board of Education as Title I Coordinator was invalid and could not furnish the basis for this action for damages. We granted certiorari to review the conclusion of the Court of Appeals that the County Board of Education was without authority to make a binding contract of employment with a Title I Coordinator without the recommendation of the Superintendent of Schools.

It has now been more than 50 years since the General Education Act was first enacted in 1925 and, from that date to this, it has been consistently held that the County Board of Education is the supreme authority in school matters within the county, that the Superintendent of Schools is subservient to the Board, and that in hiring and discharging school personnel the Board is supreme and may take such action alone, over the objection of the Superintendent. T.C.A., §§ 49-214(1), 49-224, 49-1313; Benson v. Hardin County, 173 Tenn. 246, 116 S.W.2d 1025 (1938); State v. Yoakum, 201 Tenn. 180, 297 S.W.2d 635 (1956); State v. County of Moore, 207 Tenn. 622, 341 S.W.2d 746 (1960); Gibson v. Butler, Tenn., 484 S.W.2d 356 (1972); Sanders v. Vinson, Tenn., 558 S.W.2d 838 (1977).

Of course, this allocation of power was made by the Legislature and is subject to change by that body.

Did the Legislature intend, by enacting § 7(9), Chapter 439 of the Public Acts of 1971, to override the authority of the Board of Education to employ personnel under the authorities above cited, and require that such election of personnel by the Board could be made only with the approval and recommendation of the Superintendent of Schools? The caption of the public act here under consideration discloses that it was an appropriation act funding the various educational programs in the State of Tennessee during the year 1971. As pointed out in the brief of the petitioner, paragraph 9 of that act, quoted above, appears in a strange context if it is to be given the effect ascribed to it by the Court of Appeals; It appears between a provision dealing with the rate of tax for a special school district to receive equalizing funds and another provision that city, county and special school district boards of education may contract with appropriate local or state officials in adjoining states for the education of children in grades 1 through 12. We cannot lightly ascribe to the general assembly an intent to repeal or modify the existing rights of school personnel and the relative authority of the board of education and superintendent of schools by such an obscure provision as Section 7(9) of Chapter 439 of the Public Acts of 1971. Moreover, if the recommendation or approval of the superintendent of schools is essential in order for the board of education to employ a teacher, the operation of our schools in many places would come to a standstill. The frequent bitter and political disputes between county superintendents and boards of education are all to evident in the school litigation coming to this Court. It is simply imperative that someone, be it superintendent or board of education, must be in charge and have the last word. The very case now before us is a good example of the kind of impasse which would result if the law were otherwise.

In our view the correct interpretation to be placed upon Section 7(9) of Chapter 439 of the Public Acts of 1971 is indicated by our decisions in Sanders v. Vinson, supra, and Sanders v. Carmichael, Tenn., 527 S.W.2d 92 (1975). The principal question at issue in those cases was whether a teacher had been validly elected and had acquired tenure. She had been elected by the Board of Education but had not been recommended by the Superintendent of Schools. One of the insistences made was that T.C.A., § 49-602, A(7), which is the successor provision to that which we construe in the case at bar, rendered ineffective the teacher’s election by the Board of Education, without the recommendation of the Superintendent. Subsection A(7) provided:

“In order for any professional position, together with the salary therefor . to be included in the minimum foundation school program, or to be paid from any public funds, the person filling such professional position shall be recommended by the local superintendent of schools and elected by the board of education. However, such failure of recommendation shall not affect any employed teacher’s rights as otherwise set forth in this title.”

Concerning this quoted provision, we said:

“The rights of tenurial teachers are ‘otherwise set forth in this title.’ Further compliance with this section is a condition precedent to the funding of a teaching position but not to the acquisition of tenure. As we phrased it in Sanders v. Carmichael, supra:
‘The fact that funds may or may not be withheld from a school system by the commissioner of education is not determinative of, or in any way material to, the rights or duties of the plaintiff or the Dyer County School Board under the employment contract which is at issue in this case, or under the Teacher’s Tenure Law. (Citation omitted.)’ [Emphasis added.]
“The source of the funds necessary to pay the salary of a teacher is wholly separate from the acquisition of tenure. Local school authorities must know that the conference of tenure results in salary payments, either from minimum foundation funds supplied by the State, or from county funds, and that State funds are not available absent the recommendation of the superintendent.” 558 S.W.2d at 843-44.

We held in Sanders that under the statutory scheme of our general educational laws the school board is the dominating entity and that the recommendation of the superintendent is not essential to the employment, reemployment or retention of a public school teacher. We adhere to those views.

Applying the rationale of the Sanders cases to the case at bar, we conclude that, although Section 7(9) of Chapter 439 of the Public Acts of 1971, may require that a teacher be recommended by the Superintendent as well as elected by the Board in order for the position to be funded under the State’s minimum foundation program, it does not deprive the Board of Education of the authority to enter into a valid contract of employment without the recommendation of the Superintendent, for one to serve as a Title I Coordinator or in some other teaching position. The Court of Appeals erred in holding to the contrary. The judgment of the Court of Appeals is reversed and that of the trial court affirmed, with interest. Costs will be paid by the respondent Bogart, in his official capacity as Superintendent of Schools for Sevier County, Tennessee.

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

      . But see Sec. 1, Ch. 202, Public Acts of 1957, for an exception to this principle.


author: BROCK, Justice. FONES, Justice,

text:
    STATE of Tennessee ex rel. Randy ANGLIN et al., Petitioners, v. Sammi MITCHELL, Superintendent of the Tennessee Reception and Guidance Center and C. Murray Henderson, Commissioner of the Tennessee Department of Corrections, Respondents. STATE of Tennessee ex rel. Timothy ANGLIN et al., Petitioners, v. Howard G. COOK, Superintendent of the Spencer Youth Center, and C. Murray Henderson, Commissioner of the Tennessee Department of Corrections, Respondents.
    Supreme Court of Tennessee.
    Jan. 2, 1979.

      Jerry Black, Knoxville, for petitioners.
    Robert A. Grunow, Asst. Atty. Gen., Nashville, for respondents; Brooks McLe-more, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

BROCK, Justice.

I

This is a habeas corpus proceeding in which the relators, two juveniles, seek to set aside judgments of the juvenile court for Hickman County, Tennessee, adjudging them to be delinquent and committing them to the custody of the State Department of Corrections. The grounds of their attack are (1) that they were denied their constitutional right to the assistance of counsel, (2) that their guilty pleas were not voluntarily and knowingly entered and (3) that their trial before the juvenile court violated their due process rights under the Fourteenth Amendment to the Constitution of the United States and Article I, Section 8, of the Constitution of Tennessee in that the judge of that court was not a lawyer.

After their commitment pursuant to the judgments and while they were temporarily detained in Davidson County, the relators filed petitions for habeas corpus in the Chancery Court for Davidson County. The Chancellor conducted an evidentiary hearing and concluded that the relators had voluntarily and knowingly waived their right to counsel before the juvenile court and had voluntarily and knowingly entered pleas of guilty at the hearing before that court. With respect to the claim of a denial of due process because the juvenile court judge was not a lawyer,, the Chancellor held that although the trial of relators by a non-lawyer judge did not violate their rights under the Fourteenth Amendment, it did constitute a violation of their rights under the law of the land clause of Article I, Section 8, of the Constitution of Tennessee. Accordingly, he ordered that the writs of habeas corpus be granted. Both the relators and the respondents excepted to the decree of the Chancellor and perfected appeals to the Court of Appeals.

The Court of Appeals held that the Chancery Court had subject matter jurisdiction of the issues raised but that habeas corpus was not a permissible remedy for determining whether relators had been denied their right to counsel at the hearing before the juvenile court or had entered guilty pleas involuntarily. Those errors, reasoned the Court, were:

“ . . . errors of law and fact to be reviewed by appeal to the circuit court. T.C.A. § 37-258. It is established law that the writ of habeas corpus is not an instrument to be used in lieu of appeal. (Citations omitted.)”

With respect to the issue concerning the competency of the non-lawyer juvenile court judge, the Court of Appeals concluded that (1) this issue had been waived by failure of the relators to object to the competency of the judge at the hearing in the juvenile court and that, in any event, (2) even if Article I, Section 8, of the Constitution of Tennessee requires that a juvenile court judge be a lawyer, a trial and entry of judgment by a judge who is not a lawyer would not be absolutely void for that reason and, therefore, that the writ of habeas corpus is not a proper remedy for presenting that issue.

This Court granted certiorari review to determine whether the juvenile relators may employ the remedy of habeas corpus to attack the judgment of the juvenile court upon the grounds asserted.

II

A person who is restrained of his liberty by reason of a judgment may attack that judgment upon grounds that it is void and seek his release from custody by means of the writ of habeas corpus. Giles v. State ex rel. Giles, 191 Tenn. 538, 235 S.W.2d 24 (1950).

Since only a void judgment may be attacked by the remedy of habeas corpus, the question presented is always one of jurisdiction, that is, whether the order, judgment or process under attack comes within the lawful authority of the court or judge rendering or issuing it. Henry v. Henkel, 235 U.S. 219, 35 S.Ct. 54, 59 L.Ed. 203 (1914); State ex rel. Holbrook v. Bomar, 211 Tenn. 243, 364 S.W.2d 887 (1963); Giles v. State ex rel. Giles, supra. As held by the Court of Appeals in this case, the writ does not lie to correct mere errors and irregularities committed by a court that is acting within its jurisdiction, that is, errors which fall short of depriving the court of jurisdiction. State ex rel. Holbrook v. Bomar, supra. Only those defects which are recognized as rendering absolutely void the proceedings whereby the petitioner is imprisoned may be reached by habeas corpus. State ex rel. Reed v. Heer, 218 Tenn. 338, 403 S.W.2d 310 (1966); State ex rel. Newson v. Henderson, 221 Tenn. 24, 424 S.W.2d 186 (1968). The writ reaches jurisdictional error only; it is not available to serve the purpose of an appeal or writ of error.

“A habeas corpus proceeding is not one where the record is brought up or where one has a trial on the merits but in a habeas corpus proceeding one is entitled only to a hearing on such matters affecting his constitutional rights as alleged in his petition.” State ex rel. Newson v. Henderson, 424 S.W.2d at 188.

See also Jackson v. Maxwell, 174 Ohio St. 32, 186 N.E.2d 725 (1962); Annot., 76 A.L.R. 469 (1932).

“Jurisdiction” in the sense here used, is not limited to jurisdiction of the person or of the subject matter but also includes lawful authority of the court to render the particular order or judgment whereby the petitioner has been imprisoned. Although the court had jurisdiction of the subject matter and of the person of the petitioner, its judgment may, nevertheless, be void and, therefore, subject to attack by habeas corpus because certain fundamental constitutional rights of the prisoner were violated during the course of the proceedings leading to his conviction. Moreover, failure of the defendant to appeal does not foreclose his right to raise such fundamental errors by the remedy of habeas corpus. Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). See also 39 C.J.S. Habeas Corpus § 37 (1976) and cases there cited.

A court’s jurisdiction at the beginning of a trial may be lost in the course of the proceedings due to its failure to afford the defendant due process of law. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Lynch v. State ex rel. Killebrew, 179 Tenn. 399, 166 S.W.2d 397 (1942).

“ . . .a petition alleging sufficient facts to establish that petitioner’s conviction was void because of alleged denial of constitutional rights, Federal or State, necessitates a trial of those facts under the aforesaid Act. The attack on a criminal judgment on the grounds that it is void because of lack of constitutional due process deserves particular scrutiny. .
As was stated, ... in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963):
‘It is of the historical essence of habeas corpus that it lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void.’ ” State ex rel. Red v. Heer, 403 S.W.2d at 312.

It must be noted, however, that not every violation of a constitutional provision or denial of a fundamental right during the course of a judicial proceeding constitutes grounds for habeas corpus; the error must be such as to render the whole proceeding void. Thus, if the right to due process of law is left unimpaired or the error alleged is not jurisdictional or is not prejudicial to the prisoner, there is no ground for habeas corpus although constitutional provisions may have been violated. See 39 C.J.S. Habeas Corpus § 37 (1976).

Ill

The right to counsel in any judicial proceeding which may result in the loss of liberty of the defendant is so fundamental that it is an essential prerequisite of jurisdiction. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Therefore, the denial of this right operates to render a judgment against a defendant absolutely void and he may, if imprisoned under such a judgment, obtain his release by habeas corpus. Gideon v. Wainwright, supra. State ex rel. Richmond v. Henderson, 222 Tenn. 597, 439 S.W.2d 263 (1969); State ex rel. Barnes v. Henderson, 220 Tenn. 719, 423 S.W.2d 497 (1968); State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964).

The same is true of a plea of guilty which is not voluntarily and knowingly entered.

“It is of course well settled that a guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void and a conviction based upon such a plea is open to collateral attack. [Citation omitted.] If either of the guilty pleas here for consideration by the Court was involuntarily coerced, unfairly obtained, or given through ignorance, fear, or inadvertence, then such plea was not voluntarily and understanding^ given and its acceptance by the State Court would have been a violation of the defendant’s right of due process of law under the Fourteenth Amendment of the United States Constitution. [Citation omitted.] An involuntary or mistaken plea of guilty entered in a state criminal proceeding would entitle a prisoner committed thereunder to federal ha-beas corpus relief.” Rigby v. Russell, 287 F.Supp. 325, 331 (E.D.Tenn.1968).

Accord, Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Henderson v. State ex rel. Lance, 220 Tenn. 520, 419 S.W.2d 176 (1967); State ex rel. Barnes v. Henderson, 220 Tenn. 719, 423 S.W.2d 497 (1968). A judgment based upon a plea of guilty which was not voluntarily and knowingly entered is void and may be attacked by the remedy of habeas corpus.

A trial judge may be disqualified to hear a particular case for any one of many reasons and most of these grounds for disqualification are not of the fundamental type hereinabove described as sufficient to deprive the court of jurisdiction and, hence, must be raised on appeal and may not be the subject of a habeas corpus proceeding. See Wood v. Clarke, 188 Ga. 697, 4 S.E.2d 659, 124 A.L.R. 1077 (1939); United States ex rel. Doss v. Lindsley, 148 F.2d 22 (7th Cir. 1945); Commonwealth ex rel. Miller v. Ashe, 336 Pa. 228, 8 A.2d 540 (1938); State ex rel. Cohen v. Milburn, 118 Fla. 376, 159 So. 529 (1935); Daniels v. Towers, 79 Ga. 785, 7 S.E. 120 (1887); 39 C.J.S. Habeas Corpus § 44 (1976); 39 Am.Jur.2d Habeas Corpus § 50 (1968). See Annot., 124 A.L.R. 1080 (1940).

It is otherwise, however, with respect to those grounds for disqualification which amount to a denial to the defendant of due process of law, such as, trial by judge who has a pecuniary interest in the outcome of the trial, trial by a judge who is an outright usurper of the office, or trial by a judge who is biased. In Re Canfield, 26 Ohio N.P., N.S., 465; Stroup v. Pruden, 104 Ga. 721, 30 S.E. 948 (1898); Bransted v. Schmidt, 324 F.Supp. 1232 (W.D.Wis.1971). In the case before us, it is alleged that trial in the juvenile court by a judge who was not a lawyer has deprived the juvenile rela-tors of their rights under the “law of the land” clause of Article I, Section 8, of the Constitution of Tennessee. Without intimating any opinion one way or the other upon the merits of this claim, but assuming, arguendo, that the claim is a valid one, we conclude that the issue is one of a fundamental nature which may properly be raised by the remedy of habeas corpus. Moreover, we do not agree with the conclusion of the Court of Appeals that the rela-tors have waived their right to raise this issue by their failure to object at the hearing in the juvenile court. As was said in State ex rel. Barnes v. Henderson, Tenn., 423 S.W.2d 497, 502 (1968):

“[W]e indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in the loss of fundamental rights . . . .”

That is especially true when it is asserted that juveniles without the assistance of counsel have waived their right to “judgment of [their] peers or the law of the land.” Article I, Section 8, Constitution of Tennessee.

We conclude that the Court of Appeals erred in the respects hereinabove discussed. Accordingly, the judgment of the Court of Appeals is reversed and this cause is remanded to that court for consideration of the assignments of error upon their merits.

HENRY, C. J., and COOPER and HAR-BISON, JJ., concur.

FONES, J., filing separate concurring opinion.

FONES, Justice,

concurring.

I do not agree with some of the statements in the majority opinion addressing the issue of a non-lawyer juvenile court judge.

First, I have grave reservations that the bare allegation that the juvenile court proceeding was presided over by a non-lawyer judge deprived the juvenile defendants of rights under the “law of the land” clause of Article I, Section 8 of the Constitution of Tennessee is a sufficient predicate to invoke the writ of habeas corpus.

Second, on the question of the effect of failure to raise the issue of the judge’s status when the case was before the juvenile court, I would hold that waiver did not result solely because the juveniles did not have assistance of counsel at that time.

Otherwise, I concur in the majority opinion.

      . Initially, the Court of Appeals held that it had no jurisdiction to hear the appeals and transferred the cases to the Court of Criminal Appeals. This Court reviewed that order by petition for common law certiorari and supersedeas, concluded that the Court of Appeals, not the Court of Criminal Appeals, had jurisdiction of the appeals in these cases and, accordingly, remanded the cases to the Court of Appeals for disposition on their merits, including a decision whether the Chancery Court had subject matter jurisdiction of habeas corpus under the facts of this case.