source: Caselaw Access Project

author: BROCK, Justice. FONES, Justice.

license: Public Domain

text:
    Elijah WAUGH, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    April 18, 1978.
    Charles J. Cassell, Memphis, for petitioner.

      Jack E. Seaman, Asst. Atty. Gen., Nashville, for respondent; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

BROCK, Justice.

In this criminal case, which is before the Court in two separate appeals, we deal with recurring problems of interpretation and application of our preliminary hearing statutes.

After the defendant Waugh’s arrest on March 13, 1975, he was formally charged in a warrant with the offense of robbery with a deadly weapon and on March 14, 1975, was brought before the city court of Memphis for a preliminary hearing. Upon the defendant’s request to confront and examine all of the State’s witnesses against him, specifically the victim and arresting officers, the hearing was reset for March 21. On that date, defendant’s request was denied, and the only witness to testify at the hearing was the investigating police officer, Sgt. Pitts, who based his testimony on police reports only, since he had no personal knowledge of the facts. He testified that the defendant and a companion had been arrested within two to three minutes after the robbery of a “Seven-Eleven” store in Memphis at a location less than one mile from the store which had been robbed. He further stated that the police had based their stopping of the defendant’s car upon a radio dispatch description given by the robbery victim. Approximately $46.00 was taken from the store, $11.00 to $12.00 in quarters. When Waugh was stopped and searched, approximately $10.00 in quarters was found on his person. He further stated that the victim had made a positive identification of Waugh at a line-up.

It was solely upon this hearsay testimony of the investigating officer that the city court judge determined that probable cause was shown. Defendant Waugh was bound over for action of the grand jury on a plea of not guilty.

On April 2, 1975 counsel for defendant filed a motion in the criminal court of Shelby County to dismiss the bind-over order upon the ground that the defendant had not been afforded a preliminary hearing in accordance with T.C.A., § 40-1131, in that he had not been afforded confrontation with and examination of all witnesses in connection with the charge of robbery with a deadly weapon. The trial judge sustained the defendant’s motion, concluding that the defendant had not been afforded the kind of preliminary hearing to which he was lawfully entitled, and, on April 4 an order was entered dismissing the bind-over order.

Thereafter, on April 8, 1975, the grand jury of Shelby County issued an indictment against defendant Waugh charging him with robbery by means of a deadly weapon and with carrying a pistol. Pursuant to T.C.A., § 40-1131, a plea in abatement to these indictments was filed by defense counsel on April 10, which was within thirty days of his arrest, and on April 18, 1975, thirty-one days after his arrest, this plea in abatement was sustained by the same trial judge who had granted the defendant’s previous motion to dismiss the bind-over order.

The State appealed the court’s judgments in both proceedings, and insisted that the defendant could lawfully be bound over to the grand jury upon a preliminary hearing at which only hearsay testimony was introduced. Additionally, the State asserted that the criminal court was without jurisdiction to grant the defendant’s plea in abatement after more than thirty days had elapsed following his arrest, although the plea had been filed within thirty days of the arrest. The Court of Criminal Appeals reversed the dismissals of the bind-over order and the indictments, reinstated the indictments and remanded the case for further proceedings. We granted the defendant’s petition for certiorari.

The proper determination of the rights of the parties depends upon our construction of certain statutes, especially T.C.A., § 40-1131, which provides:

“In all criminal cases, prior to presentment and indictment, whether the charge be a misdemeanor or a felony, the accused shall be entitled to a preliminary hearing upon his request therefor, whether the grand jury of the county be in session or not.
“If the accused is indicted during the period of time in which his preliminary hearing is being continued, or at any time before accused has been afforded a preliminary hearing on a warrant, whether at his own request or that of the prosecutor, he may abate the indictment upon motion to the court. Provided, however, that no such motion for abatement shall be granted after the expiration of thirty (30) days from the date of the accused's arrest.”

Because “those who would trim trees in the garden of law must also undertake to dig around the roots,” 30 Va.L.Rev. at 193, a glance backward in history may assist us in reaching a proper construction of these statutes. T.C.A, § 40-1131, is a comparatively recent enactment, the first paragraph having been passed in 1971 and later amended by the addition of the second paragraph in 1974. The origin of an accused’s right to a preliminary hearing, however, reaches back to two statutes of sixteenth-century England which created an inquisitorial proceeding intended to prevent the indiscriminate release of apprehended criminals. T. Plucknett, A Concise History of the Common Law, 407-08 (4th ed. 1948).

In 1554 Parliament required that before a person accused of manslaughter or any felony could be released on bail, a magistrate must

“take the Examination of the said Prisoner, and information of them that bring him, of the fact and circumstances thereof, and the same, or as much thereof as shall be material to prove the Felony, shall be put in Writing. . . . ” — 1 & 2 P. & M., ch. 13, sec. IV (1554).

When a person was indicted for murder or manslaughter at a coroner’s inquest, however, the coroner was simply required to “put in Writing the effect of the evidence given to the [coroner’s] Jury before him, being material.” Id, sec. V. Professor Holdsworth was of the opinion that the remarkable difference between the character of the examination conducted by the magistrate and that held by the coroner was due to the fact that in the magistrate’s examination,

“there was an accusation definitely formulated against some specific person, which must be presented by the grand jury before the prisoner was arraigned; whereas [at the coroner’s inquest] there was simply an inquiry at large into the facts, resulting in a presentment, on which the accused could be at once arraigned, without the need for any further presentment before the grand jury.” — IV W. Holdsworth, A History of English Law 529 (1924).

See also I Stephen, A History of the Criminal Law of England 218-19 (1883). Thus, Holdsworth concluded, “[t]he nature of the inquiry and the character of the subsequent proceedings naturally affected the character of the preliminary examination.” Holdsworth, supra, at 529.

The provisions of the 1554 statute relating to the preliminary examination before the magistrate applied only when the prisoner was bailed because the primary object of the statute was to settle the procedure in cases where bail was applied for. Because it became clear that some preliminary examination was as useful when the prisoner was committed as when he was bailed, a statute was enacted in 1555, 2 and 3 P. and M., ch. 10, requiring an examination by a magistrate in these cases as well. Holdsworth, supra, at 529.

Under these English statutes the magistrate acted more as a public prosecutor than as a judicial officer. The criminally accused was closely interrogated in secret, not informed of the evidence against him, nor entitled to legal counsel at the examination. The preliminary examination thus served a vital discovery function for the prosecution. Weinberg and Weinberg, The Congressional Invitation to Avoid the Preliminary Hearing, 67 Mich.L.Rev. 1361, 1365 (1969).

The basic English preliminary examination statutes were in effect in this country both before and after the Revolution. Kau-per, Judicial Examination of the Accused, 30 Mich.L.Rev. 1224, 1235-36 (1932). As stated by an early commentator on Tennessee law, “Our statute in relation to the commitment of criminals, passed 1715, appears to be the same in substance as 1 and 2 sections, P. and M. chap. 13, passed 1554.” J. Quarles, Criminal Code and Digest, 366 (1874). The practice of inquisition, however, did not accompany the preliminary hearing to America because of early constitutional guarantees against self-incrimination. A.L.I. Code of Criminal Procedure 271-73 (1930). See generally Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va.L.Rev. 763 (1965).

The accused’s statutory right to a preliminary hearing in Tennessee antedates our statehood. When the Southwest Territory was organized there was, under North Carolina law, a provision that

“. . .no person within this province, shall be committed to prison for any criminal matter until examination thereof be first had before some magistrate which magistrate shall admit the party to bail, if bailable, and shall record the examination of the party and also, the full matter given in evidence, both against him and for him, with all concurring circumstances, and shall take recognizance, with good and sufficient securities, to our sovereign lord the king, for the informer to appear and prosecute as the laws of the kingdom of Great Britain and this province do direct; and likewise, for all evidences for the king to appear and give evidence against the criminal, at the next court, where the matter is cognizable, ensuing such examination; which examination and recognizances so taken, shall be returned to the office of the court wherein the matter is to be tried. . .” Laws of North Carolina, 1715, ch. 16.

In 1789 North Carolina passed a Cession Act offering the area of what is now Tennessee to the federal government. N.C. Pub. Acts of 1789, ch. 3. Ten conditions were placed on North Carolina’s offer, the eighth providing that

“. . . the laws in force and use in the state of North Carolina at the time of passing this act, shall be and continue in full force within the territory hereby ceded until the same shall be repealed, or otherwise altered by the Legislative authority of the said territory.”

The land offered by North Carolina became the Southwest Territory in 1790 upon congressional approval of the Cession Acceptance Act, Stat. 106, ch. 6; thus the laws of North Carolina were officially adopted at that time.

Finally, the first constitution of this state, adopted in 1796, incorporated into the law of Tennessee the North Carolina statute which was itself derived from the sixteenth-century English statutes requiring examination by a magistrate:

“All laws and ordinances now in force and use in this Territory, not inconsistent with this constitution shall continue to be in force and use in this State, until they shall expire, be altered, or repealed by the legislature.” Tennessee Constitution of 1796, Art. X, Sec. 2.

Thus, the provisions of early English law relating to the preliminary examination of those accused of a crime were transplanted into our law. See T.C.A., § 40-604.

The 1796 Constitution also included our Bill of Rights, however, which the delegates stipulated “shall never be violated on any pretence whatever”, Tenn.Const. of 1796, Art. X, Sec. 4, and has remained virtually unchanged to this day. The delegates were especially mindful of the rights of those accused of crime, adding important rights not found in the North Carolina constitution which the delegates apparently used as a model. Laska, A Legal and Constitutional History of Tennessee, 6 Mem.St.L.Rev. 563, 595 (1976). Thus, Art. XI, Sec. 9 of our 1796 Constitution provided:

“That in all criminal prosecutions the accused hath a right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face; to have compulsory process for obtaining witnesses in his favor; and in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the county or district in which the crime shall have been committed; and shall not be compelled to give evidence against himself.” (Emphasis added.)

These words of our first Constitution altered the nature and function of the preliminary examination from the inquisitorial proceeding of the English statutes to an impartial judicial inquiry. Thus, the preliminary hearing evolved full circle into a safeguard for the defendant, protecting him from unfounded charges.

As Justice Rutledge has pointed out: “Historically it was the preliminary inquisition which gave rise to the privilege [against self-incrimination]. It was won through centuries of struggle against abuses of magisterial as well as more formal judicial inquisition. The modern hearing is the lineal descendant of the ancient preliminary examination. But its character has changed with the evolution of the privilege and other constitutional guaranties.” Wood v. United States, 75 U.S.App.D.C. 274, 280, 128 F.2d 265, 271 (1942).

The constitutional guarantees further established the distinctly adversarial nature of the preliminary hearing; the accused was guaranteed the right to counsel, to confront witnesses against him and to produce witnesses in his defense. Tennessee Constitution of 1796, Art. XI, Sec. 9. See 1858 Code, §§ 5048, 5056, 5057. Section 5063 of the 1858 Code provided:

“Upon the whole evidence, if it appears to the magistrate that no offense has been committed, or that there is no probable cause for charging the defendant therewith, he shall be discharged.” (Emphasis added.)

An 1899 enactment, repealed by the Legislature in 1971, limited the right to a preliminary examination to those arrested without a warrant and those arrested under a warrant when the grand jury was not in session. The 1971 act, codified as T.C.A., § 40-1131, provided, however, that:

“[i]n all criminal cases, prior to presentment and indictment, whether the charge be a misdemeanor or a felony, the accused shall be entitled to a preliminary hearing upon his request therefor, whether the grand jury of the county be in session or not.” Tenn.Pub. Acts of 1971, ch. 245, § 2 (Emphasis added.)

In addition to the history hereinabove related, we are also aided in our construction of the statute by the opinion of the United States Supreme Court in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) and of this Court in McKeldin v. State, Tenn., 516 S.W.2d 82 (1974).

In Coleman, supra, the Supreme Court recognized the importance of the preliminary hearing’s screening function, holding that Alabama’s preliminary hearing was a “critical stage” of the state’s criminal process at which the accused is entitled to the aid of counsel. “Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution.” Id. 399 U.S. at 9, 90 S.Ct. at 2003.

We held in McKeldin, supra, that the Tennessee preliminary hearing is a critical stage of the criminal prosecution at which certain significant rights may be sacrificed and, therefore, that an indigent defendant has a right to competent counsel at that proceeding. We also recognized in McKel-din that the importance of the preliminary hearing as a discovery tool for the defense could not be ignored.

The primary responsibility of the magistrate at a preliminary hearing is to determine whether the accused should be bound over to the grand jury. “This examination of one accused of crime is considered as a privilege in his favor. It is offered by the law to enable him, if innocent, to clear himself of suspicion.” Alfred and Anthony v. State, 32 Tenn. (2 Swan) 581, 589 (1853). If, “upon the whole evidence," the examining magistrate finds (1) “that no offense has been committed” or (2) “that there is no probable cause for charging the defendant therewith,” he must discharge the defendant. T.C.A, § 40-1116. But, “[i]f it appear that an offense has been committed, and there is probable cause to believe the defendant guilty thereof . . .” the accused must be committed to jail or admitted to bail to await the action of the grand jury. T.C.A., § 40-1117.

In Myers v. Commonwealth, 363 Mass. 843, 298 N.E.2d 819 (1973), the Massachusetts court has pointed out that

“[tjhese two requirements are designed to establish an effective bindover standard which distinguishes between groundless or unsupported charges and meritorious prosecutions. Thus, the preliminary hearing’s primary function is to screen out at this early but critical stage of the criminal process those cases that should not go to trial thereby sparing individuals from being held for trial, and from being unjustifiably prosecuted.” Id. 298 N.E.2d at 822-23.

The preliminary hearing is not a “judicial rubber stamp for prosecutorial discretion.” See Graham and Letwin, The Preliminary Hearing in Los Angeles, 18 U.C.L.A.L.Rev. 636 (1971). The function of the preliminary hearing as the critical stage of the criminal process is realized only

“. . . when it is utilized as a check on the power of the prosecution. That check assumes significance where, as in the instant case, the prosecution attempts to establish probable cause on the basis of second-hand hearsay testimony.” Maestas v. District Court In & For the City and County of Denver, Colo., 541 P.2d 889 (1975).

We, accordingly, reaffirm that the purpose of the preliminary hearing is to determine whether there is evidence sufficient to justify the continued detention of the defendant and subjecting him to the expense, embarrassment, humiliation, and inconvenience of a trial. See Alfred and Anthony v. State, supra. In light of this purpose and the significance of the preliminary hearing under our law, we conclude that, except for documentary proof of ownership and written reports of expert witnesses, probable cause to bind over the defendant to the grand jury must be based upon legally competent evidence which would be admissible at trial. See Proposed Rules of Criminal Procedure of Tennessee, Rule 5.1(a). Admission of incompetent evidence, however, will not invalidate a bind-over order if the magistrate also had before him competent evidence sufficient in itself to establish probable cause. Cf. Gammon v. State, Tenn.Cr.App., 506 S.W.2d 188 (1973). But if only evidence which would be inadmissible at trial is introduced at the preliminary hearing, the hearing will fail in its function of screening out unfounded charges, Maestas v. District Court, supra, and will violate the defendant’s right to a preliminary hearing.

Our exclusion of hearsay as an adequate basis for determining probable cause at a preliminary hearing does not mean that we fail to recognize that a lesser quantum of proof, “probable cause,” is required to hold an accused person for trial than is required to support a conviction, “proof beyond a reasonable doubt.” Our holding looks to the purpose to be served by the preliminary hearing and restricts the type of proof to that which adequately effectuates that purpose.

We hold that the purported preliminary hearing in this case was invalid and that the trial court was correct in granting the defendant’s motion to dismiss the bind-over order under which he was being held in custody at the time.

Moreover, we disagree with the conclusion of the Court of Criminal Appeals that the criminal court of Shelby County was without jurisdiction to entertain the defendant’s motion to dismiss the order under which he was being held. Although we are not aware of any statutory provision specifically dealing with the matter, the whole tenor and implication of our criminal code is to the effect that once a defendant, who has been arrested prior to indictment, has been committed to jail or admitted to bail by the magistrate following a preliminary hearing, as provided in T.C.A., § 40-1117, the criminal court for the county succeeds to the jurisdiction of the case and of the person of the defendant. See, e. g., T.C.A., §§ 40-1117, 40-1118, 40-1119, 40-1122, 40-1123, 40-1128, 40-1129 and 40-1707. Therefore, we hold that the circuit or criminal court thus acquiring jurisdiction of the case and the person of the defendant pursuant to the magistrate’s commitment has jurisdiction to consider and determine a motion to dismiss the commitment order, as was done in this case. Cf. Hale v. State, Tenn., 548 S.W.2d 878 (1977).

II

Following the entry of the order dismissing the bind-over order and freeing the defendant, the grand jury of Shelby County issued an indictment, charging the defendant with armed robbery and carrying a pistol, the same offenses which were the subject of the original proceeding. The defendant filed a plea in abatement to the indictment, grounded upon the fact that he had not been afforded a preliminary hearing as guaranteed by T.C.A., § 40-1131. Again, the trial court held for the defendant and abated the indictment. The State appealed and the Court of Criminal Appeals reversed, holding that the preliminary hearing at which only hearsay evidence was introduced was adequate. We granted cer-tiorari.

The dismissal of the bind-over order and release of the defendant from custody on April 4 terminated the criminal proceeding which began with the arrest of the defendant. The indictment issued by the grand jury on April 8 was the beginning of a new proceeding. Was the defendant entitled to a preliminary hearing following the filing of the indictment? We hold that he was not.

It is our opinion that the statute, T.C.A., § 40-1131, entitles the defendant to a preliminary hearing only in proceedings which begin with the arrest, with or without a warrant, of the defendant; when proceedings begin with a presentment or an indictment without the accused being in custody or upon bail for the offense charged, the defendant is not entitled to a “preliminary” hearing. Harris v. State, Tenn.Cr.App., 534 S.W.2d 868 (1975); McCracken v. State, Tenn.Cr.App., 529 S.W.2d 724 (1975). Nothing in the historical development of the preliminary hearing suggests a right to a post-presentment or post-indictment determination of probable cause by a magistrate, a determination already made by the grand jury. Our Constitution has lodged that ultimate authority with the grand jury. See Tennessee Constitution, Article I, Section 14. A re-determination of probable cause by a magistrate is not required. If the legislature intends that a “preliminary” hearing shall be afforded to the defendant when proceedings begin with a presentment or an indictment without the defendant being in custody or on bail for the offense charged, it will have to say so in clear and unmistakable terms. We hold that it has not said so in T.C.A., § 40-1131, as it is now written. Nor is there any constitutional mandate for such a hearing. Coleman v. Alabama, supra; McKeldin v. State, supra; Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

Having concluded that the defendant was not entitled to a preliminary hearing in the proceeding begun by the indictment, we need not consider the effect of the curious time limitation contained in the last sentence of T.C.A., § 40-1131.

We conclude that the Court of Criminal Appeals reached the correct result, albeit for the wrong reason, in reversing the action of the trial court abating the indictment.

This cause is remanded to the criminal court of Shelby County for further proceedings consistent with this opinion.

COOPER and HARBISON, JJ., concur.

FONES, J., dissenting.

HENRY, C. J., not participating.

OPINION

FONES, Justice.

I respectfully dissent.

I concur in Section II of the Opinion and in the result mandated by that Section.

I do not agree that the history of preliminary hearings in England and America, the Tennessee statutes, McKeldin, Hale, or the combination thereof, require or justify this Court in mandating for the first time in our judicial history that a magistrate can only bind a defendant to the action of the grand jury upon evidence that would be legally competent and admissible at the trial of the case.

I do not agree with the action of the Court in conferring appellate jurisdiction upon the criminal courts of this State to provide defendant with a review of the scope of a preliminary hearing, the admissibility of evidence therein and the weight of the evidence adduced on the issue of probable cause. Regardless of its outcome, the grand jury determines who must face trial on the merit of charges, not the magistrate. A magistrate’s decision that there is probable cause does not assure further prosecution; a decision that there is no probable cause does not preclude further prosecution. State v. D’Anna, 506 S.W.2d 200 (Tenn.Crim.App.1973). The magistrate’s judgment will not forestall the prosecution of a single defendant indicted by Tennessee grand juries. In Tennessee, a defendant cannot be brought to trial except upon an indictment by the grand jury. Tenn.Const. Art. I, § 14; Tenn.Code Ann. § 40-301.

Waugh’s “Motion To Dismiss Warrant,” the vehicle used to appeal the magistrate’s ruling to the Criminal Court of Shelby County, asserts that he was denied the right of “confrontation and examination of witnesses,” citing McKeldin v. State, supra, as authority. I do not read McKeldin as guaranteeing to defendant the right of confrontation of witnesses. The United States Supreme Court in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), expressly said, with respect to confrontation and cross-examination,

“[tjhese adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment.” 420 U.S. at 120, 95 S.Ct. at 866.

The significance of history and the current state of the law in America to me is that good hearsay has always been, and continues to be sufficient to support a finding of probable cause by a magistrate at a preliminary hearing in the federal system and virtually every state in the union that has a preliminary hearing.

I.

No direct authority has been cited by the majority to justify its departure from stare decisis and require legally admissible evidence at a preliminary hearing. They do not assert that the phrase “upon the whole evidence,” that has been in our statutory law since 1858, now requires the elimination of hearsay evidence as a basis for finding probable cause. Yet that statutory phrase, blended with Myers v. Commonwealth, supra, Maestas v. District Court, supra, McKeldin v. State, supra, and Hale v. State, supra, has produced what is to me an unwarranted result, futile and meaningless to its intended beneficiaries, disruptive of the prosecutorial process and potentially oppressive to the victims of crime.

Seemingly persuasive and relevant quotes from Myers v. Commonwealth, supra, have been urged upon us in the briefs on behalf of Waugh and his common cause amicus curiae, the Shelby County Public Defender’s Office.

The factual situation in Myers was different than in the instant case. The defendant was charged with rape, assault with a dangerous weapon, and breaking and entering. At the probable cause hearing, the only witness presented by the prosecution was the victim. After the direct examination was completed, defense counsel began his cross-examination by asking the victim about her belief in witchcraft, whereupon the magistrate announced that he had heard enough to find probable cause. Defendant insisted upon completing his cross-examination, and informed the court that he was prepared to present evidence of a psychiatric examination revealing a neurosis that affected the veracity of the victim’s statements, hospital tests performed the morning after the alleged rape, and other evidence supporting his defense of a consent sual sexual relationship. The magistrate denied his request and terminated the hearing. Thus the question presented was, as expressed by the Massachusetts court, “whether the judge’s finding of probable cause before the petitioner had an opportunity to complete cross-examination of the complaining witness and to present relevant testimony and witnesses in his own behalf violated the petitioner’s ‘substantive rights.’ ” 298 N.E.2d at 821-22.

Neither the admissibility of hearsay evidence nor the necessity for legally admissible evidence to support a probable cause finding was in issue in Myers. I agree that it would be erroneous and unthinkable that a Tennessee magistrate would refuse to allow a defendant to present affirmative defenses at a preliminary hearing or to cross-examine such witnesses as the prosecution elects to present. It would unnecessarily prolong this opinion to analyze in detail the differences between the Massachusetts statutes and ours with respect to preliminary hearings and grand jury proceedings. Suffice it to say there are significant differences.

After examining the Massachusetts statutes, the Myers court concluded that the “preliminary hearing’s primary function is to screen out at this early but critical stage of the criminal process those cases that should not go to trial . . . .” (Emphasis added.) 298 N.E.2d at 822. That is not the primary function of the preliminary hearing in Tennessee. The only purpose of a Tennessee preliminary hearing is to determine Whether there is probable cause to believe the accused committed the offense charged and to fix the amount of bail in bailable offenses. State v. D’Anna, supra; State v. Hudson, 487 S.W.2d 672 (Tenn.Crim.App.1972). As previously stated, it is the grand jury, not the magistrate, that makes the final determination of who is to be held for trial.

Historically, Tennessee has relied upon the grand jury as the impartial body to stand between the prosecutor and the citizen, protecting him or her from being put to trial on groundless charges. Whether or not every grand jury performs that function in every case is not an issue before this Court. One of the amicus curiae briefs has attempted to put before us facts about the action of Shelby County grand juries in general, and specifically actions of the Shelby County grand jury on a particular day in September, 1977, when it is surmised that “assembly-line justice” was dispensed. Such facts could only be presented to us in a bill of exceptions and it is a gross impropriety that they should be urged upon us in an amicus curiae brief. Those facts, if true to the extent that magistrates should be given the power to make the final decision on probable cause to go to trial on the merits of charges, are policy matters that address themselves to constitutional and legislative reform. They are beyond the power of this Court to adjudicate in the present state of the Tennessee Constitution, statutory law and judicial decisions.

I acknowledge the accuracy of the majority’s statement that the Tennessee preliminary hearing also serves to determine whether there is evidence sufficient to justify the continued detention of the defendant pending the action of the grand jury. I agree that defendant is entitled to cross-examine and to present witnesses to establish that charges are unfounded. It seems significant to observe here that, in those cases where the charges may be unfounded, the prosecution’s decision to limit the number of witnesses and scope of its proof would increase the defendant’s chances of being at least temporarily released on a finding of no probable cause and perhaps the defendant might demonstrate to the district attorney that further prosecution was not warranted. A demand for confrontation of all witnesses as was made in this case is both legally and practically untenable. As a practical matter, the expectation of overcoming the prosecution’s evidence by cross-examination alone, and thereby gaining release and convincing the district attorney that the charges are unfounded, is little short of a flight of fantasy. The true reason for the hard push to require the prosecution to produce all of its witnesses is for the purpose of discovery. It is noteworthy that this defendant’s first action at the preliminary hearing was a demand that the State be compelled to produce all of the witnesses. Since this Court handed down the decision in McKeldin, it seems that “every lawyer worth his salt” has attempted that tactic.

As precedent, in my view, McKeldin stands for the principle that the Tennessee preliminary hearing is a “pretrial type of arraignment where certain rights may be sacrificed or lost.” (Emphasis added.) 516 S.W.2d at 85. Factually, a constructive fraud had been practiced on McKeldin by providing him with an impostor posing as a lawyer. We held that the Sixth Amendment to the United States Constitution requires that an indigent defendant have the guiding hand of counsel at a preliminary hearing. We did not have before us any semblance of an issue involving the scope of a preliminary hearing, its function as a discovery device, the admissibility of hearsay evidence, or the quality or quantity of evidence upon which to base a finding of probable cause. In my opinion, our “critical stage” holding in McKeldin was based more upon what might happen at a preliminary hearing than what must happen there. Parenthetically, we have the unique situation in Tennessee that the complete denial of a preliminary hearing does not violate a defendant’s constitutional rights, but the failure to provide an indigent defendant with counsel at a preliminary hearing does violate his constitutional rights. See McKeldin v. State, supra.

A defendant without the guiding hand of counsel might waive important constitutional rights under the Fourth, Fifth and Sixth Amendments, and might not be effective in cross-examination of prosecution witnesses or in the presentation of a defense. Perhaps the most critical of all decisions for a defendant at a preliminary hearing is whether or not to present any affirmative evidence of innocence lest the hearing be turned into a discovery device for the prosecution.

With respect to discovery, McKeldin’s observations must be classified as dicta. While it may have been relevant to note that a defendant should have a lawyer who would exploit such opportunities as may be available at a preliminary hearing, the additional comment that failure to “learn the precise details of the prosecution’s case” or failure to engage in a “fishing expedition” were unfortunate, and have erroneously, in my view, led defense counsel to perceive those strategic objectives as vested rights at a preliminary hearing. My brethren have expanded McKeldin in that direction today. I regard that expansion as an unwarranted interpretation of the case and, for my part, totally reject it.

The majority relies upon Hale v. State, supra. I do not regard Hale as having any precedential value whatever. The first sentence of the Hale order dismisses the case for mootness. All that is said thereafter is obiter dictum and is not binding on the Court under the doctrine of stare decisis. Only the points in judgment arising in a particular case before the Court are precedents for future decisions. Shousha v. Matthews Drivurself Service, Inc., 210 Tenn. 384, 358 S.W.2d 471 (1962); State, ex rel. Pitts v. Nashville Baseball Club, 127 Tenn. 292, 154 S.W. 1151 (1912). The statement in Hale that “the usual rules of evidence are applicable to preliminary hearings” is ipsi dixit. 548 S.W.2d at 878.

There is not a word in the preliminary hearing statutes that can be relied upon to support that statement. The only appellate court opinion that has directly considered the question of whether hearsay evidence may support a probable cause finding at a preliminary hearing is Gammon v. State, 506 S.W.2d 188 (Tenn.Crim.App.1973). While it is not clear from the opinion whether the magistrate’s finding of probable cause was based wholly on hearsay or only partly, it is clear that the decision sanctions the use of hearsay to establish probable cause. The Court of Criminal Appeals pointed out that, regardless of the outcome of the preliminary hearing, the grand jury could indict defendant upon hearsay evidence, citing Parton v. State, 2 Tenn.Crim.App. 626, 455 S.W.2d 645 (1970).

The majority also places reliance upon the Colorado case of Maestas v. District Court, supra. First, the Colorado court reiterated the prevailing rule in that state that the preliminary hearing is not a mini-trial and the rules of evidence may be tempered in accordance with the sound discretion of the magistrate, and that “[hjearsay evidence, and other evidence, which would be incompetent if offered at the time of trial, may well be the bulk of the evidence at the preliminary hearing,” citing Kuypers v. District Court of Colorado, 188 Colo. 332, 534 P.2d 1204 (1975), and People v. Quinn, 183 Colo. 245, 516 P.2d 420 (1973). 541 P.2d at 891.

However, the Court said that where, as in the instant case, the prosecution uses secondhand hearsay as the sole basis for probable cause,

“the historical function of the preliminary hearing is vitiated — that being to place before the judge evidence which establishes that probable cause exists to prove that the defendant did commit the crime charged. Cf. United States v. Umans, 368 F.2d 725 (2d Cir. 1966), cert. granted, 386 U.S. 940, 87 S.Ct. 975, 17 L.Ed.2d 872 (1967), but dismissed as improvidently granted, 389 U.S. 80, 88 S.Ct. 253, 19 L.Ed.2d 255 (1967). By our holding here, we seek fair play and substantial justice at the preliminary hearing.” 541 P.2d at 892.

Immediately following the above quote, the Colorado court reaffirmed its prior holding in People v. Quinn, supra, that hearsay evidence is admissible at a preliminary hearing,

“but we admonish the courts to beware of the excessive use of hearsay in the presentation of government cases. The inordinate use of hearsay, as in the present case, foils the protective defense against unwarranted prosecutions that preliminary hearings are designed to afford to the innocent. Cf. United States v. Umans, 368 F.2d 725 (2d Cir. 1966).” 541 P.2d at 892.

Parenthetically, it is significant to note that Umans and three other cases from the Second Circuit Court of Appeals relied upon by the Colorado Court factually involved approved grand jury proceedings, not disapproved preliminary hearing proceedings.

Although Quinn was reaffirmed, it was also modified by the following admonition.

“We do not require that the prosecution produce all, or even the best, witnesses at a preliminary hearing. But the evidence presented at the preliminary hearing must have some semblance of a factual foundation and must show probable cause, (citation omitted.) The process is best served when at least one witness is called whose direct perception of the criminal episode is subject to evaluation by the judge at the preliminary hearing. Establishing probable cause on the basis of hearsay alone should only be resorted to when the testimony of a perceiving witness is unavailable or when ‘it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge.’ (citations omitted.)” 541 P.2d at 892.

In Parton v. State, supra, our Court of Criminal Appeals, speaking through presiding Judge Walker, expressed a somewhat similar admonition in deploring the grand jury indictment of Parton by the sole testimony of an assistant district attorney testifying from notes taken of the testimony of witnesses who appeared before a prior grand jury that returned a no true bill.

“Although we think that the grand jury should require the production of the most satisfactory and convincing evidence which the case permits, we hold that an indictment may not be abated because it is founded on hearsay evidence. The legality and sufficiency of evidence heard by the grand jury is not subject to review by this court.
“A wide range must necessarily be given to investigations by a grand jury and it is not limited to the consideration of that which would be admissible on the trial of the cause. We do not encourage prosecutors and grand juries, however, to rely on hearsay testimony when direct testimony is available or when it is not demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge. The grand jury may, in respect to all offenses, send for witnesses and make investigation when they, or any one of them, suspect a law violation. Excessive use of hearsay in the presentation of cases to grand juries tends to destroy the historical function of grand juries in the protection of the innocent from unwarranted prosecution.” 455 S.W.2d at 648.

The Court of Criminal Appeals relied upon Burton v. State, 214 Tenn. 9, 377 S.W.2d 900 (1964), for its holding that an indictment may not be abated although founded on hearsay evidence. In Burton, this Court relied on Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), which continues to be the controlling law with regard to indictments based upon hearsay evidence.

In Costello, Mr. Justice Black had this to say with respect to grand jury indictments based on hearsay:

“If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment.” 76 S.Ct. at 408-409.

Those same observations may validly be made with respect to the preliminary hearing challenge presented in this case.

It is worthy of mention that in the federal criminal justice system, where substantially all of the new precedents expanding defendant’s rights and remedies have originated, a finding of probable cause at the preliminary examination before a magistrate “may be based upon hearsay evidence in whole or in part.” Fed.R.Crim.P. 5.1(a). Relevant excerpts from the Committee Notes to Rule 5.1 follow:

“A grand jury indictment may properly be based upon hearsay evidence. (Citing Costello v. United States, supra.) This being so, there is practical advantage in making the evidentiary requirements for the preliminary examination as flexible as they are for the grand jury.
“It has been urged that the rules of evidence at the preliminary examination should be those applicable at the trial because the purpose of the preliminary examination should be, not to review the propriety of the arrest or prior detention, but rather to determine whether there is evidence sufficient to justify subjecting the defendant to the expense and inconvenience of trial, (citations omitted.) The rule rejects this view for reasons largely of administrative necessity and the efficient administration of justice. The Congress has decided that a preliminary examination shall not be required when there is a grand jury indictment (18 U.S.C. § 3060). Increasing the procedural and evidentiary requirements applicable to the preliminary examination will therefore add to the administrative pressure to avoid the preliminary examination.” 8 Moore’s Federal Practice ¶ 5.1.-01[2], at 5.1-3 — 5.1-4 (2d ed. 1977).

Thus the federal system has rejected the legally admissible evidence standard at preliminary hearings and authorized hearsay in whole or part because of the practical advantage of having the same rules of evidence applicable to the preliminary hearing that are applicable to the later grand jury proceedings, and for reasons of “administrative necessity.”

Increasing evidentiary requirements at a preliminary hearing and providing an avenue of appeal therefrom will undoubtedly impose substantial additional burdens upon our overloaded criminal justice system. Federal magistrates are in a better position to absorb the impact of turning a preliminary hearing into a mini-trial than are the magistrates in Tennessee.

In my view, neither the statutes nor the case law requires a different rule in Tennessee. It is clearly meaningless (except for discovery objectives, not a legally sanctioned purpose of a preliminary hearing) to a defendant to impose stringent evidentiary rules at a preliminary hearing when probable cause may be established wholly on hearsay at a subsequent grand jury proceeding.

On January 26, 1976, I concurred in recommending the Proposed Rules of Criminal Procedure to the Legislature. Rule 5.1 of the proposed rules provides that probable cause, “shall be based upon evidence which may not be inadmissible hearsay except documentary proof of ownership and written reports of expert witnesses.” Based upon my intervening research and observations in this case, Hale, and a number of other cases presented to me and other members of this Court and the Court of Criminal Appeals, I now entertain grave doubts with respect to the wisdom of the above-quoted portion of the rule. However, I see a substantial difference between this Court’s departing by judicial .decision from longstanding precedent and imposing a new standard of proof for the preliminary hearing, a creature of statute, and joint action by this Court and the Legislature in adopting Rule 5.1 as a part of comprehensive rules that include mutual discovery rights of defendants and the State outside of a preliminary hearing, plus restraining committee comment with respect to preliminary hearings.

The Law Revision Commission’s recommendation may well be the better rule. It is as follows:

“The finding that an offense has been committed and that there is probable cause to believe that the defendant committed it shall be based upon evidence, which may be hearsay in whole or in part, if there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.” Tenn.L.Rev’n.Comm’n., Tenn.Code Crim. Proc. § 40-906(b) (Prop. Final Draft, Nov. 1973).

I am also persuaded that the Colorado rule, allowing hearsay plus one perceiving witness, if available, would be preferable to the present proposed Rule 5.1.

II.

The majority implicitly admits there is no authority or precedent for a review of the magistrate’s action by criminal court judges upon mere motion of the defendant. The majority opinion says that the “whole tenor and implication of our criminal code” places a defendant and his case under the jurisdiction of the State Criminal Courts, apparently from the moment of arrest. The statutes cited are addressed to the magistrate and all save one are codified in Chapter 11, and deal with the commitment of the defendant (§ 40-1117), the form of the commitment (§ 40-1118), bail (§ 40-1119), binding material witnesses (§ 40-1122), and the form of the bond of witnesses (§ 40-1123). The last two statutes cited in Chapter 11 instruct the magistrate to return all the documents in the case to the State court where the defendant and the witnesses are bound to appear, and provides a penalty for failure to do so. Tenn.Code Ann. §§ 40-1128, 40-1129. Tennessee Code Annotated § 40-1707 instructs the grand jury what to endorse on an indictment in which they do not concur.

I do not agree that any of those statutes, or their “whole tenor or implication” supports the holding that “the circuit or criminal court thus acquiring jurisdiction of the case and the person of the defendant pursuant to the magistrate’s commitment has jurisdiction to consider and determine a motion to dismiss the commitment order, as was done in this case.”

The simple fact is that neither our Constitution nor our statutes provide any appellate review of any kind or character of the non-final action of a magistrate at a preliminary hearing, and this Court is totally lacking in authority to confer appellate jurisdiction on ourselves or any other court. McKeldin came through the appellate process in the usual way; after conviction in the trial court, defendant appealed asserting as one of several errors the denial of a constitutional right that allegedly was prejudicial.

The tragedy of the majority’s unprecedented action, to me, is the practical futility of it as clearly demonstrated by the result in the case at bar. Waugh must now face a trial on the merits, because it was impracticable for him to obtain action on his plea in abatement within the thirty-day limitation of Tennessee Code Annotated § 40-1131, although his plea was promptly filed. That is a fate that will befall many defendants who seek to avail themselves of this Court’s new largess. Those who beat the time limitation of Tennessee Code Annotated § 40-1131 and obtain a favorable review of adverse treatment by a magistrate must still await the action of a grand jury for the final determination of probable cause to go to trial.

I would affirm the judgment of the Court of Criminal Appeals for the reasons stated herein.

      . Tenn.Pub. Acts of 1971, ch. 245, § 2.

      . Tenn.Pub. Acts of 1974, ch. 701, § 1. T.C.A., § 40-1131, was further amended in 1976, dispensing with the requirement that the accused request a preliminary hearing. Pub. Acts of 1976, ch. 760, § 1.

      . Tenn.Pub. Acts of 1899, ch. 16; codified as T.C.A., § 40 — 402 (1955), repealed by Tenn.Pub. Acts of 1971, ch. 245, § 1.

      . Tenn.Pub. Acts of 1971, ch. 245, § 1.

      . Following preparation of this Opinion but pri- or to its release the Tennessee Rules of Criminal Procedure proposed by this Court were approved by the General Assembly and the Governor. Rule 5.1(a), in pertinent part provides:
      “The finding that an offense has been committed and that there is probable cause to believe that the defendant committed it shall be based upon evidence which may not be inadmissible hearsay except documentary proof of ownership and written reports of expert witnesses.”
      Of course, this right of the defendant may be waived by failure to interpose proper and seasonable objection to the hearsay; if admitted without objection, hearsay could constitute sufficient evidence.

      . Hearsay that meets the standard recommended by the Tennessee Law Revision Commission, § 40-906(b), proposed final draft November, 1973, quoted hereinafter.


author: DROWOTA, Judge.

text:
    Robert Lee SCALES, Plaintiff-Appellee, v. Preston SCALES et al., Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Aug. 26, 1977.
    Certiorari Denied by Supreme Court Jan. 16, 1978.

      Stanley L. Holtman, Berry & Berry, Franklin, Joseph S. Daniel, Murfreesboro, for defendants-appellants.
    D. Dewees Berry, IV, McWilliams, Berry & Oglesby, Franklin, for plaintiff-appellee.
   DROWOTA, Judge.

OPINION

This suit to remove a cloud from the title to real property raises questions concerning the interest taken by an illegitimate child, legitimated by judicial proceedings, under a devise by his grandfather to his father for life, remainder to his father’s “children.”

Plaintiff Robert Lee Scales was born out of wedlock to William James Scales on September 9, 1922. He was the only child of William Scales, who filed a petition resulting in an order declaring plaintiff “the legitimate child of the Petitioner” on November 30, 1962. The version of T.C.A. § 36-306 under which plaintiff was legitimated read as follows:

The effect of the legitimation is to create the relation of parent and child between the petitioner and person legitimated, as if the latter had been born to the former in lawful wedlock.

This differs from the present statute, which was enacted in 1965 and provides in part:

When . . . the relationship of parent and child is established between the petitioner and the child named in the petition and an order of legitimation has been entered, the child shall be a legitimate child of the petitioner for the purpose of inheriting from him as if born to him in lawful wedlock.

In 1946 Abb Scales, father of William James Scales and grandfather of plaintiff, executed a will in which he directed his trustees to convey to each of his six children, including “Willie James,” one-sixth of his real property “for and during their lives with remainder to their children.” Abb Scales died in 1950, and in 1951 the executors and trustees of his estate duly executed to William James Scales a deed to certain realty “for life with the remainder to his children.” William James Scales died in 1972, and plaintiff claims title to the property pursuant to the remainder interest created under Abb Scales’s will. Plaintiff brought the instant suit in Williamson County Chancery Court to remove what he alleges is a cloud upon his title caused by the various defendants who as lineal descendants of Abb Scales would take any property as to which he died intestate and who claim to be the owners of the property in question here as tenants in common.

Defendants’ claims are twofold. First, they contend that plaintiff, as illegitimate son of William Scales, cannot take the remainder to William’s “children” under the will of Abb Scales, even though he was made legitimate by court decree after Abb Scales’s death. Since plaintiff cannot take, and since William Scales had no other children who could take, defendants argue, Abb Scales died intestate with respect to the remainder interest in this piece of property and defendants now own it as tenants in common because they are the heirs of Abb Scales. Further, defendants contend that the issue of plaintiff’s interest in this property has already been decided in an earlier suit and is res judicata.

The earlier case referred to by defendants, Scales v. Dye, was a suit filed by William James Scales, at that time the life tenant of the property in issue here, in which he set forth his inability to develop the land for the uses to which it was most suited and asked that the court decree that it be sold and the proceeds reinvested to continue the life interest and remainder in some other property. The complaint alleged that William Scales had no children, and asked appointment of a guardian ad litem to represent unborn remaindermen. It appears, however, that plaintiff Robert Scales was added to that suit by supplemental bill as a defendant, and that that bill was later dismissed and plaintiff removed as a defendant. Evidently plaintiff was then added as a complaintant in the suit by another supplemental bill. It was during these proceedings, in November of 1962, that plaintiff was legitimated.

At this point, there is a gap in the history of the earlier lawsuit as presented in the record before us. Defendants in their pleadings quote briefly from an opinion they attribute to Chancellor Smith in Williamson County dated January 5,1963. The quotes contain language to the effect that the word “children” in Abb Scales’s will does not include those children who, like plaintiff, were born illegitimate and later legitimated. Reference is also made by some of the defendants to an order entered pursuant to this opinion. Neither the opinion nor the order appears in the record, nor is it possible to divine in what context either was made. It is also unclear what the status of the suit was for the next seven years. In September of 1970, a decree was finally entered by Special Chancellor Short, who ordered that the property be sold and the proceeds reinvested. An appeal was taken to this Court, where the decree was affirmed. In our opinion, written by Judge Todd, we specifically refrained from deciding whether or not plaintiff Robert Scales had an interest in the property, and emphasized that resolution of that question was immaterial to the issue presented because plaintiff had not opposed the sale nor had he appealed. From this Court the case was taken to the Supreme Court, which issued a per curiam order remanding the case to Chancery Court so that the will of Abb Scales and a decree of the court construing that will might be made a part of the record. While the case was still in Chancery Court for this purpose, William James Scales died, and the parties agreed to a dismissal of the case, which was ordered on March 29, 1973.

In the instant case, after the various defendants had filed their answers, plaintiff moved for summary judgment. In support of his motion plaintiff argued briefly that he was entitled to the remainder as a child of William James Scales and that res judi-cata was not a good defense, and he submitted copies of his father’s complaint in Scales v. Dye, of the opinion of this Court on appeal of that case, of the Supreme Court’s per curiam order, and of the Chancery Court’s order of dismissal. Defendants submitted nothing further in opposition to the motion. The Chancellor’s order, filed August 13, 1976, granted plaintiff’s motion for summary judgment. The Chancellor declared that plaintiff was not barred by res judicata or collateral estoppel from litigating the issue of his right to the remainder under the will of Abb Scales, and further held that plaintiff did have that right and that title to the property is vested in him. From this order defendants have appealed.

The arguments on appeal here follow the same lines as those below. Defendants first contend that plaintiff’s suit is barred by the principles of res judicata or collateral estoppel. The distinction between these two theories is that

res judicata bars a second suit between the same parties and their privies on the same cause of action as to all issues which were or could have been litigated in the former suit, while collateral estoppel operates to bar a second suit between the same parties and their privies on a different cause of action only as to issues which were actually litigated and determined in the former suit.

Harrison v. Bloomfield Building Industries, Inc., 435 F.2d 1192 (6th Cir. 1970) (applying Tennessee law). To support a plea of res judicata, it must be shown that the judgment in the prior case was “final” and concluded the rights of the party against whom it is asserted. Thompson v. Thompson, 54 S.W. 145 (Tenn.Ch.App.1899); see Staggs v. Vaughn, 205 Tenn. 9, 325 S.W.2d 277 (1959). It is also necessary to show that both cases involve the same cause of action. A. L. Kornman Co. v. Metropolitan Government of Nashville, 216 Tenn. 205, 391 S.W.2d 633 (1965); New York Life Insurance Co. v. Nashville Trust Co., 200 Tenn. 513, 292 S.W.2d 749 (1956). To sustain a plea of collateral estoppel it must be shown, inter alia, that the issue sought to be concluded not only was litigated in the prior suit but was necessary to the judgment in that suit. Shelley v. Gipson, 218 Tenn. 1, 400 S.W.2d 709 (1966).

On the record before us, we are unable to conclude that any of the above conditions have been satisfied. We do not have before us copies of either the opinion or the order alleged to conclude plaintiff’s rights, nor do we know anything of the context in which they were issued. Thus, we cannot hold any decision in either of these documents “final,” even wholly accepting their existence as described in the pleadings. Scales v. Dye itself was ultimately dismissed without a final determination ever having been reached. Moreover, from what we know of Scales v. Dye, it did not involve the same cause of action as the instant case. In Scales v. Dye, the life tenant sought a decree ordering the sale of the property, and joined as defendants those who might have a claim to the remainder interest. In this case plaintiff, claiming the remainder interest, sues other defendants with claims to it to determine who has title to that interest. The two cases thus present totally different issues, were brought for different purposes, and align the parties differently. As for collateral estoppel, it is made clear in this Court’s opinion in Scales v. Dye on appeal, if it was not obvious in any case, that the question of plaintiff’s interest in the property was not an issue necessary to the decision in Scales v. Dye. Plaintiff never objected to the sale of the property proposed by his father in Scales v. Dye and, since the Chancery Court and this Court found that any unborn re-maindermen who might claim an interest were adequately represented even if plaintiff had no interest in the property, the question of his interest did not have to be answered to resolve that litigation. While there may be still other reasons for refusing to apply res judicata or collateral estoppel in this case, for example, plaintiff’s argument that his right to the property is purely a legal question and not subject to the latter doctrine, we consider the reasons outlined above sufficient to show the inapplicability of both theories. On the record before us, we cannot hold that the Chancellor erred in refusing to uphold defendants’ pleas of res judicata or collateral estoppel, and this assignment of error must be overruled.

The second and final argument of defendants contests the trial court’s conclusion that plaintiff, originally illegitimate but later legitimated by his father in a judicial proceeding, was entitled to property devised by his grandfather to his father for life, with remainder to his father’s “children.” It is clear that in construing the meaning of words in a will, the testator’s intent is the controlling fact to be ascertained. Harris v. Bittikofer, 541 S.W.2d 372 (Tenn.1976); Martin v. Taylor, 521 S.W.2d 581 (Tenn.1975). The issue in this case, however, arises on a motion for summary judgment and as a matter of law, with the words used in the will as the only evidence of intent. The general rule, with exceptions not relevant here, is that, absent clear evidence of contrary intention, words such as “children” in a will will be construed to mean legitimate children and not to include illegitimate ones. Annot., 34 A.L.R.2d 4, § 5 (1954), and cases there cited. Tennessee has adhered to this rule in at least two cases. Jennings v. Jennings, 165 Tenn. 295, 54 S.W.2d 961 (1932); Ferguson v. Mason, 34 Tenn. 618 (1855). Although this rule might be questioned as a matter of policy today, it is still followed by a majority of jurisdictions, and we accept it and apply it in this case. Accordingly, Abb Scales must be held to have meant only legitimate children when he devised the remainder interest in the property in question to the “children” of his son, William James Scales.

The next question, obviously, is whether or not plaintiff’s legitimation by his father in a judicial proceeding subsequent to the death of Abb Scales rendered him “legitimate” within the meaning of that word under the legal construction which declares that the word “children” in the will means “legitimate children.” A few jurisdictions have held in similar situations that the child is legitimate for this purpose and entitled to take under the will. Dunlavy v. Lowrie, 372 Ill. 622, 25 N.E.2d 67 (1939); Clinton County National Bank & Trust Co. v. Todhunter, 43 Ohio App. 289, 183 N.E. 88 (1931); Annot., 34 A.L.R.2d 4, § 12, at 70-75 (1954), and cases cited therein. These cases generally involve legitimation by subsequent marriage of the parents, but we do not find this a material distinction from the instant case because both situations involve the legitimation of an otherwise illegitimate child pursuant to statutory authority. In one case involving legitimation by judicial proceeding, it was held that the legitimated child could not take as a “child” under his great-grandfather’s will. Hicks v. Smith, 94 Ga. 809, 22 S.E. 153 (1895). The legitimation statute in Hicks, like the current version of T.C.A. § 36-306, limited the effects of the procedure to allowing the child to inherit from his father, and the court intimated that had a broader definition of “legitimate” been in effect the child might have been brought within the legal meaning of the terms of the will. The version of T.C.A. § 36r-306 in effect when plaintiff Robert Scales was legitimated in 1962, quoted above, does not limit the effect of the legitimation in any such way. Although granting the child the ability to inherit from the father is probably the primary aim of any legitimation proceeding, it is certainly not the only conceivable one, and we do not find in any of the few cases applying the pre-1965 versions of T.C.A. § 36-306 a requirement that it be so limited. See Baker v. Miller, 137 Tenn. 55, 191 S.W. 527 (1917); Scott v. Wilson, 110 Tenn. 175, 75 S.W. 1091 (1903); Murphy v. Portrum, 95 Tenn. 605, 32 S.W. 633 (1895); McKamie v. Baskerville, 86 Tenn. 459, 7 S.W. 194 (1888). The concern of the statute is the legal relationship of father and son, which is also our concern in this case. Of course, it could also be argued that even the “limited” version of legitimation now in effect under § 36-306 is enough to make a child legitimate for purposes of the rule construing “children” in a will to mean legitimate ones, but we need not go so far. We hold that plaintiff’s legitimation as the child of William James Scales under the 1962 version of T.C.A. § 36-306 rendered him legitimate and so within the definition of William Scales’s “children,” to whom the remainder interest in the property in question was granted under Abb Scales’s will. Title to the property is in plaintiff, and the trial court was correct in so holding.

For clarity’s sake, we will summarize our reasoning on this issue. The controlling factor of testator’s intent in the use of the word “children” is governed, in the absence of contrary evidence, by the rule construing this as meaning legitimate children only. At testator’s death, plaintiff was illegitimate and William James Scales had no other children, so that no one as yet had an interest in the remainder to children of William. Under familiar class gift rules, the remainder would vest in any legitimate child of William’s who came into existence before William’s death, subject to open and let in other members of the class coming into existence before his death, at which time the rule of convenience would close the class and finally determine its membership. See L. Simes, Future Interests §§ 11, 102 (2d ed. 1966). Our determination that plaintiff’s legitimation made him a legitimate child as implied in the word “children” in the will means that he came into existence in 1962 as a legitimate child of William James Scales just as though he had been then lawfully born to him. Since this occurred during the life of William, the life tenant, the remainder vested in plaintiff subject to open, and since William died without having had any other children, the class closed at that point in 1972 with plaintiff as its only member. Plaintiff thus has exclusive title to the property under the will of Abb Scales.

Several other factors, while not controlling, strengthen the result reached here. Plaintiff Robert Scales was the only child William Scales ever had, and plaintiff had been born when Abb Scales wrote his will. Further, the broader version of T.C.A. § 36-306 under which plaintiff was legitimated was also in effect in 1946 when Abb Scales wrote his will, so that he must be presumed to have had knowledge of the possibility of legitimation. These facts, and the fact that in spite of them Abb Scales wrote “children” instead of, for example, “children born in lawful wedlock,” afford some indication that he did not intend to exclude plaintiff. We do not think that plaintiff’s having been legitimated after Abb Scales’s death rather than before it is inconsistent with our reasoning and result, for the important point is that plaintiff was “legitimate” and within the testator’s intent in using the word “children” at a time when the remainder could still vest in the children of William Scales. Other cases, such as Dunlavy v. Lowrie, supra, have applied reasoning similar to that which we employ here when the legitimation took place after the death of the testator.

Finally, defendants rely on Union Planters National Bank v. Corbitt, 63 Tenn.App. 430, 474 S.W.2d 139 (1971). That case also involved a testamentary gift of a life estate with remainder in the life tenant’s “issue.” But there, the life tenant had adopted children after testator’s death, and the court held that in the absence of contrary intent the adopted children were not included. This rule of construction excluding adopted children is separate and distinct from the one excluding illegitimate children, and the court in Union Planters stated that the basis of the former is the assumption that words like “issue” and “children” are intended to refer to blood relationships. Of course, in the case of illegitimate children, a blood relationship does exist. Further, our decision here rests on plaintiff’s being legitimate and not violating the construction against including illegitimates within the definition of “children.” Thus Union Planters in no way contradicts or affects the result in this case.

Affirmed.

SHRIYER, P. J., and TODD, J., concur.


author: SANDERS, Judge.

text:
    ESTATE of Linzy TRIVETTE et al. v. Lem TRIVETTE et al.
    Court of Appeals of Tennessee, Eastern Section.
    Dec. 6, 1977.
    Certiorari Denied by Supreme Court April 10, 1978.

      Dan M. Laws, Jr., and John W. Walton, Elizabethton, Kent Herrin, Johnson City, Max E. Wilson, Mountain City, Paul W. Sorrick, Jr., Chattanooga, for appellants.
    Charles Crockett, Robert E. Banks, Lodge Evans, Elizabethton, for appellees.
   OPINION

SANDERS, Judge.

The controlling question for determination on this appeal is whether or not a chancery court can divest title of real estate in the State of North Carolina out of a Tennessee resident-owner and vest it in a third party.

Linzy Trivette died testate in Carter County, Tennessee, in 1973 owning real estate in Carter County, Tennessee, and Avery County, North Carolina. In his will the testator appointed two of his sons, Lem Trivette and Ray Trivette, as trustees. The will provides, “The Trustees shall have the power to sell the entire estate, or any portion thereof, at any time they desire and at any time which they deem to be in the best interest of my beneficiaries.”

In March, 1974, the trustees conveyed the property in Avery County, North Carolina, to the Defendants-Appellants, Joe F. Kelley and wife, Cynthia R. Kelley. The consideration for the property was $5,000 cash. The deed from the trustees to the Kelleys was recorded in Avery County April 16, 1974. Soon after this conveyance some of the beneficiaries of the will filed suit in the Chancery Court of Carter County. As pertinent to this appeal the complaint sought to have the deed from the trustees to the Kelleys set aside. The complaint alleges the property was sold for only a fraction of its real value. It alleges fraud, overreaching and conspiracy between the trustees and the Kelleys.

The Kelleys are residents of Hamilton County and were served with process. They answered the complaint denying any fraud or collusion. They said they negotiated the purchase in good faith and paid the fair value of the property.

The Chancellor entered an order of reference referring the matter to the clerk and master. Among other things, the order of reference directed the master, “The clerk will recommend to the Court the most feasible solution or solutions representing the property in the State of North Carolina.” The master filed his report in which he said, “The Trustees named in the Will, to-wit: Lem Trivette and Ray Trivette, conveyed unto Joe F. Kelly and wife the property of the deceased, Linzy Trivette, located in the State of North Carolina as reflected by deed of record. Upon consideration of all of the evidence introduced, the Clerk and Master finds that there was no fraud, overreaching, conspiracy, or any other taint which would require this transaction to be set aside and the Clerk and Master recommends that the same be confirmed.”

Exceptions were filed to this portion of the master’s report. Prior to the exceptions’ being ruled on by the Court two of the beneficiaries of the will offered to tender into court $5,500 for the purpose of reopening the sale of the property. Pursuant to this offer the Court entered the following order: “THEREUPON, the Court refused to allow this plaintiff to re-open the bidding for said consideration offered, or to set aside the sale made by the executors of the estate of Linzy Trivette to Joe Frank Kelley and wife, Cynthia Kelley, for the reason that the consideration offered was inadequate and insufficient; however, the Court found that said plaintiff or other party may tender a minimum offer of TEN THOUSAND $10,000.00) DOLLARS; and that said amount shall actually be paid into the office of the Clerk and Master on or before January 1, 1977, and should said amount not be received or paid into the Clerk and Master on or before January 1, 1977, the Clerk and Master’s report shall become final as to the North Carolina property, and thereafter, no complaint shall be heard regarding same.” Subsequent to this order $10,000 was tendered into court by Irvan E. Grondin and wife, Rose Mary Grondin, and Eric E. Johnson and wife, Susan E. Johnson, for the property. Based upon this offer, on February 24, 1977, the Court entered a decree divesting title out of the Kelleys and into Mr. and Mrs. Grondin and Mr. and Mrs. Johnson. The decree provides, in part: “It is further ORDERED, ADJUDGED AND DECREED, upon Motion, that Lloyd Perry, Clerk and Master of this Court, is hereby appointed Substitute Trustee with the Will annexed of the late Linzy Trivett, deceased, and in that capacity, and as Clerk and Master and Special Commissioner of the Court, he is empowered and authorized to execute, acknowledge and deliver a proper deed thereof to the purchasers upon their payment of the legal fees therefor for the subject real property with all improvements, less the exceptions, same to be received and recorded in the Office of the Register of Deeds for Avery County, North Carolina, and a certified copy of the Will of the late Linzy Trivett will likewise be recorded with the Register of Deeds by the purchasers, as further evidence of the chain of title. A certified copy of this decree may likewise be duly authenticated under the Acts of Congress and filed for record with the Register of Deeds for Avery County, North Carolina, as muniment of title.”

The Kelleys have appealed and assigned the action of the Court as error.

Before passing upon the assignments of error, we must first consider a motion by the Appellees to dismiss the appeal. In their motion the Appellees say: (1) The appeal is premature. There are other matters in the pending litigation yet to be determined; (2) No bill of exceptions has been filed; and (3) The assignments of error were not timely filed.

We shall consider the grounds for the motion in order. It is true there are other matters involved in the overall litigation which have not been finally determined by the Court. However, the decree entered by the Court on February 24,1977, is a final determination of all matters relevant to this appeal. The decree states, “This decree is in all respects final in respect to the adjudication of the rights, title and interest in and to the North Carolina property.” The Chancellor heard no proof in the case. Therefore, there was no bill of exceptions to be preserved, nor is a bill of exceptions necessary for a determination of the questions on this appeal. The record was filed in this court on April 13, 1977. Under the rules Appellants were allowed 25 days within which to file assignments of error and briefs, which would have expired on May 8. On May 2 an order was entered allowing a 15-day extension, which made them due on May 23. They were filed May 19. The motion is, accordingly, overruled.

It is the insistence of the Appellants the Court was without jurisdiction to divest title to the property in North Carolina out of them and vest title thereto in third persons.

We must agree. The courts of this state may require a person within its jurisdiction to execute a deed to property lying outside of the state. Also, our courts may require specific performance of a contract relating to property beyond its jurisdiction. But our courts are without jurisdiction to pass title to lands lying solely within another state. See Cory v. Olmstead, 154 Tenn. 513, 290 S.W. 31 (1926); Clouse v. Clouse, 185 Tenn. 666, 207 S.W.2d 576 (1948); Boals v. Boals, (Tenn.App.) 519 S.W.2d 594 (1974).

The Cory case, supra, was a suit filed in Tennessee to foreclose a mortgage on property located in the State of Kentucky. 154 Tenn. at pages 516 and 517, 290 S.W. at page 32, the court said:

“In the first place, it is well established that a court of one state is without jurisdiction to pass title to lands lying wholly in another state. The local court cannot by its decree bind the land, and a decree of foreclosure, pursuant to pleadings in this cause, . . . . It is a well established principle of international law, ‘that a foreign court cannot, by its (sic) judgment or decree, pass the title to land situate in another country.’ Story’s Conflict of Laws, sec. 543. It is certainly true, that a court of equity may entertain a bill for the specific performance of a contract respecting land situate in a foreign country, if the parties are resident within the territorial jurisdiction of the court. In such case, although the court cannot bind the land itself by the decree, it can bind the conscience of the party in regard to the land, and enforce him, by process against his person, to perform his agreement. But the decree is merely in personam, and not in rem. Still, the want of power to act upon the land, or to enforce the decree in rem, is no objection to the jurisdiction to act upon the person, and in that mode compel an execution of the contract according to equity and good conscience.”

The Clouse case, supra, involved a decree from the State of Michigan. A court in Michigan, in a, divorce case, had entered a decree divesting title out of the defendant to properties in Tennessee. Our Supreme Court, speaking through Chief Justice Neil, said, “We think it is hardly a debatable question that courts of a foreign State are without jurisdiction to vest and divest title to lands in this State.” He also quoted with approval from Cory, supra, “[A] court of one state is without jurisdiction to pass title to lands lying wholly in another state.” He further said:

“In a recent work on Conflict of Laws by Joseph H. Beale, Volume One, page 424, it is said:
“ ‘A refusal of the defendant to make a conveyance in obedience to a decree therefore deprives the decree of any effect. An appointment by the court of a master or committee to give a deed of the land after the defendant’s refusal to do so, or in the absence of an order to him to do so, will not cure this defect. (Italics ours.)
“ ‘Since a court cannot affect the title to foreign land it will not construe a conveyance of such land.’
“The foregoing text is supported by the following cases: Carpenter v. Strange, 141 U.S. 87, 11 S.Ct. 960, 35 L.Ed. 640; Taylor v. Taylor, 192 Cal. 71, 218 P. 756, 51 A.L.R. 1074; Carter v. Carter, 283 Ill. 324, 119 N.E. 269, and other leading cases from Iowa, Missouri, Nebraska, South Carolina, Virginia, and our own case of Cory v. Olmstead, supra. See also Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65, 23 L.R.A.,N.S., 924, 17 Ann.Cas. 853.”

The Boals case, supra, involved a decree of a Tennessee court in a divorce case. The decree recited the title to certain Florida property was divested out of the defendant and vested in the complainant. In holding the decree was unenforceable, our court of appeals said:

“In Cory v. Olmstead, 154 Tenn. 513, 290 S.W. 31, it was said that want of jurisdiction of the subject matter can neither be waived, nor conferred by consent, estoppel, appearance or pleadings, and that a Court of one State is without jurisdiction to pass title to land lying wholly within another State, citing Wicks v. Caruthers, 81 Tenn. 353, and other authorities.”

The assignments of error are sustained. The decree of the Trial Court is reversed and the complaint as to Appellants Kelleys is dismissed. The cost of this appeal is taxed to the Appellees.

GODDARD, J., and W. I. DAVIS, Special Judge, concur.


author: GODDARD, Judge.

text:
    Leon M. TORBETT et ux., Plaintiffs-Appellees, v. Gordon ANDERSON et ux., Defendants-Appellants.
    Court of Appeals of Tennessee, Eastern Section.
    Feb. 14, 1978.
    Certiorari Denied by Supreme Court April 24, 1978.
    Edwin C. Harris, Sweetwater, for defendants-appellants.
    Gene Worthington, Madisonville, for plaintiffs-appellees.
   OPINION

GODDARD, Judge.

A single determinative question is presented by this appeal. Do Leon M. Tor-bett and wife Ella G. Torbett, Plaintiffs-Appellees, have standing to enjoin Gordon Anderson and wife Sarah P. Anderson, Defendants-Appellants, from violating the zoning ordinances of the City of Madison-ville? Or, to put the question more specifically, must it be said as a matter of law that the Plaintiffs, whose commercially zoned property is utilized as their residence, are not specially damaged by Defendants’ commercial use of their residentially zoned property?

The facts, which we suspect have not been fully preserved because presented by a narrative bill of exceptions, are for the most part not in dispute. The Plaintiffs own property lying between U.S. Highway 411 and Old Niles Ferry Road. They occupy a dwelling fronting on Old Niles Ferry, and in the same block but to the rear of their residence Mr. Torbett operates an automobile garage fronting on U.S. Highway 411.

The Defendants’ property is located approximately 100 yards diagonally across Old Niles Ferry Road from Plaintiffs’ property. Plaintiffs’ property is zoned commercial, although its use as a residence is permitted and, as a matter of fact, property fronting on Old Niles Ferry is principally residential. Defendants’ property is zoned residential and commercial use is prohibited. Approximately six months before these proceedings were filed Mr. Anderson began operating an automobile body repair shop on his property which, under the undisputed proof, depreciated the value of Plaintiffs’ residence. After Plaintiffs were unsuccessful in persuading the city officials of Madisonville to enforce the zoning ordinance, they themselves filed the present suit.

Both the state statute and the ordinance of the City of Madisonville provide remedies for violation of the zoning regulations, as well as define those parties entitled to seek redress. The provisions of T.C.A. 13-708, as it relates to an individual’s right to maintain an action, hereinafter set out, is, with one exception, identical to that of the ordinance:

13-708. Enforcement of ordinances— Remedies. — The chief legislative body may provide for the enforcement of any ordinance enacted under this chapter. A violation of any such ordinance is hereby declared to be a misdemeanor. In case any building or structure is or is proposed to be erected, constructed, reconstructed, altered, converted or maintained, or any building, structure or land is or is proposed to be used in violation of any ordinance enacted under this chapter, the building commissioner, municipal counsel or other appropriate authority of the municipality, or any adjacent or neighboring property owner who would be specially damaged by such violation, may, in addition to other remedies, institute injunction, mandamus or other appropriate action or proceeding to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance or use, or to correct or abate such violation, or to prevent the occupancy of said building, structure or land.

The one exception is that the ordinance uses the words, in referring to neighboring property owner, “specifically damaged,” rather than “specially damaged.” This difference, however, is of no significance, because in our view the words mean the same and may be used interchangeably.

From the foregoing it is clear that (1) the Plaintiffs are neighboring landowners, and (2) their property has been depreciated in value by reason of the activities of the Defendants. Although we find no case law in this jurisdiction, a number of other states have found depreciation in value to be a special damage. Irland v. Barron, 230 So.2d 880 (La.App.1970); Aughtry v. Farrell, 237 S.C. 604, 118 S.E.2d 569 (1961); Hull v. Hunt, 53 Wash.2d 125, 331 P.2d 856 (1958).

Notwithstanding the fact that the Plaintiffs have met the literal requirements of the statute and ordinance, counsel for the Defendants still contends that they should not prevail. He insists that this Court should find that Plaintiffs have not been specially damaged as a matter of law, and that to allow them to enjoin Defendants under the circumstances of this case would be unjust because a repair shop similar to the Defendants’ could be lawfully operated on either side of Plaintiffs’ property.

Counsel’s argument is not without logical appeal. However, if such a further limitation is to be made — that a neighboring landowner is not entitled to complain of an offending activity Qwhich is permissible on his own property — it should be made by legislative bodies and not by the courts. Further, it would seem to us that under the facts of this case the Plaintiffs are entitled to enjoy their residential property on a residential street, though subject perhaps in the future to commercial use on either side, without also having its value further depreciated by an unlawful commercial use across the street.

We accordingly conclude that Plaintiffs have standing to sue, overrule the assignments of error, and remand the case to the Chancery Court for Monroe County for enforcement of its orders. The costs are adjudged against the Defendants and their surety.

PARROTT, P. J. (E. S.), and SANDERS, J., concur.


author: WALKER, Judge.

text:
    Kermit MATTRESS and Gary Eugene Chesney, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 9, 1977.

      Michael E. Starling, Knoxville, for Ches-ney.
    William A. Hotz, Knoxville, for Mattress.
    Brooks MeLemore, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Randall Nichols, Asst. Dist. Atty. Gen., Knoxville, for appellee.
   OPINION

WALKER, Judge.

Kermit Mattress and Gary Eugene Ches-ney were jointly indicted in case no. C-2234 for armed robbery of Eddie Lee Doane, doing business as Doane’s Market in Knoxville. In a companion case they were indicted for armed robbery of Ambers Rogers. On the trial of the cases together, they were found guilty in both. In the first case Mattress was sentenced to 15 years and Chesney to ten years; in the second case Mattress was sentenced to ten years and Chesney to 20 years in the penitentiary. The appellants’ sentences are concurrent.

The principal questions presented by the appellants on appeal are whether or not a conflict of interest on the part of an assistant district attorney general required dismissal of the cases and whether or not the district attorney general’s office was precluded from prosecuting the cases because of that conflict. After a hearing before trial, the court held that assistant district attorney general Kim Tollison would not be allowed to participate in the trial but that assistant district attorney general Nichols could prosecute the cases. The appellants contend that this action by the court was insufficient to remove any appearance of impropriety. We disagree with the appellants and find the trial court’s action adequate to dispel any appearance of impropriety.

The record shows that in April 1976, General Tollison, then a staff attorney at the University of Tennessee Legal Clinic, accepted a case for the clinic involving Ches-ney. The charges concerned accessory to rape and robbery. Chesney was interviewed, not . by Tollison, but by a law student assigned to the cases. Another file from Legal Aid showed that Tollison was assigned to the case of Mattress, involving two counts of armed robbery. Tollison left the Legal Clinic about a month after his assignment to Chesney’s case and a somewhat shorter time after his assignment to Mattress’ case.

General Tollison did not recall the cases and did not think he had talked with either appellant. Neither appellant claimed to have been interviewed by General Tollison or to have divulged any confidential information to him.

In the preparation of the case for the prosecution, General Tollison interviewed state’s witnesses and prepared a motion for a continuance for the absence of a state witness. From the record and the holding of the court, he had no confidential information from appellants and, of course, communicated none to anyone in the district attorney general’s office.

It has long been firmly established, both in the Canons of Professional Ethics and by judicial opinions, that attorneys cannot represent conflicting interests or undertake to discharge inconsistent duties. When an attorney has once been engaged and received the confidences of his client, he cannot enter the services of those whose interests are adverse to that of his client or former client. Our leading case on this question is Autry v. State, 1 Tenn.Cr.App. 95, 430 S.W.2d 808 (1967). The trial court here properly held that General Tolli-son was disqualified from prosecuting the cases, but none of the principles of Autry were violated by refusing to disqualify the entire District Attorney General’s staff or by refusing to dismiss the indictments.

An excellent annotation on the Disqualification of Prosecuting Attorneys on Account of Relationship with Accused is found in 31 A.L.R.3d beginning on page 953.

In Hannon v. State, 48 Ala.App. 613, 266 So.2d 825 (1972), the Alabama Court of Criminal Appeals held there was no reason to disqualify the entire district attorney’s staff when the district attorney had interviewed the appellant while associated with the public defender’s office but had no independent recollection about the case and had not discussed it with the assistant prosecutor in charge of it. Allowing the prosecution to continue there did not amount to a denial of a fair and impartial trial or constitute a breach of the attorney-client relationship.

The application.here sought to have the court bar participation of all assistant district attorneys general as well as the district attorney general himself, although there was no claim that any one of them ever represented appellants or had any confidential information. This broad disqualification was unnecessary to preserve the appearance of a fair trial or to protect the appellants’ rights. See Fox v. Shapiro, 84 Misc.2d 223, 375 N.Y.S.2d 945 (1975).

There has been no breach of the attorney-client relationship, the privilege against disclosure has been preserved, and professional ethics have been painstakingly observed. The constitutional right to a fair and impartial trial was not infringed. With these rights observed, the public interest demanded that the prosecution go forward. These assignments are therefore overruled.

Both appellants next challenge the sufficiency of the evidence.

The state’s evidence, which the jury accredited, showed that between 9:00 and 9:30 a. m., February 18, 1976, two unmasked men wearing toboggan caps entered the Knoxville store where Eddie Doane, Am-bers Rogers and Pearson Braner were working. Doane positively identified Ches-ney as the man who, at gun point, robbed him of his billfold, money clip and then opened the cash register.

While Chesney was at the front counter, the other man, identified by Rogers as the appellant Mattress, went to the rear of the store, pointed a pistol at Rogers and robbed him of his billfold and money. He overlooked Rogers’ pistol, which Rogers then used to fire at the appellants as they fled.

In the midst of the robbery, Clifford Lat-timore, a customer, entered and saw the appellants there. He made an in-court identification of both. Braner also identified Chesney as one of the robbers.

Each appellant, testifying in his own behalf, denied any participation in the robbery and relied on an alibi. Chesney and his witnesses testified that he was in bed asleep at the time of the crime. He said he and Mattress were not together that morning. Mattress and his witnesses testified he was at an apartment until 11:00 a. m. that day. The jury disbelieved the appellants, and there was ample evidence, which the jury accredited by their verdicts, to sustain the conviction. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

Both appellants claim they were denied their constitutional right to a speedy trial. They point out that about one year elapsed between their arrests and their trial. One indictment was returned June 28 and the other July 2, 1976. On motion of the state and each appellant, the court, on November 3, granted a continuance until January 4, 1977, at which time the state was granted a resetting until March 3 on account of the hospitalization of one of the victims of the robbery.

On the trial day, March 3, 1977, the appellants for the first time asserted their right to a speedy trial. They had made no effort to have their cases heard speedily and have shown no prejudice to themselves. In Farr v. State, 506 S.W.2d 811 (Tenn.Cr.App.1974), the appellant contended a 13-month delay denied him the right to a speedy trial. We there considered the balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and held that Farr had not been denied a speedy trial. Under this authority we overrule the appellants’ claim of denial of speedy trial.

Mattress contends the trial court erred by overruling his motion for a severance. We find no prejudice to him in this record. The trial court did not abuse its discretion. Likewise without merit is Mattress’ claim that the trial judge improperly limited his cross-examination of Rogers. The scope of cross-examination is a matter of discretion on the part of the trial court, subject to reversal only if abuse is apparent. Edwards v. State, 221 Tenn. 60, 424 S.W.2d 783 (1968). We find no abuse of that discretion.

Mattress also complains of the alibi instruction, citing Christian v. State, 555 S.W.2d 863 (Tenn.1977). This question was not raised in the motion for a new trial. Further, these cases were tried before Christian and its rule is not applicable.

Chesney, in his final assignment, complains that the jury acted arbitrarily in setting different punishments for the appellants. He cites no authority. The punishments are within statutory limits and there is no merit in his assertion that the jury acted arbitrarily or capriciously. Bailey v. State, 479 S.W.2d 829 (Tenn.Cr.App.1972). Moreover, Chesney’s greater punishment in one case logically reflects the fact that he was the robber who held a pistol to Eddie Doane, the prosecutor in that case.

All assignments by each appellant have been fully considered and are overruled.

Judgments affirmed.

TATUM and BYERS, JJ., concur.