author: HARBISC^, Justice.

text:
    Dr. Clarence G. JOHNSON, Petitioner-Plaintiff, v. CHRISTIAN BROTHERS COLLEGE, Respondent-Defendant.
    Supreme Court of Tennessee.
    May 15, 1978.

      G. Philip Arnold, Memphis, for petitioner-plaintiff.
    William M. Walsh, Memphis, for respondent-defendant.
   OPINION

HARBISC^, Justice.

Petitioner, an associate professor of chemistry, instituted this action against Christian Brothers College for alleged breach of contract of employment. He also claimed damages for defamation against certain individual members of the faculty. All of his claims were dismissed following a non-jury trial in the circuit court. Petitioner appealed only as to the contract claim against respondent. The Court of Appeals affirmed the dismissal of the suit. After giving further consideration to the issues, we concur in that decision.

Respondent is a small, religiously-affiliated, private college in Memphis. It has a formal tenure program, details of which are contained in a faculty handbook exhibited in the record. Basically this provides for a probationary period of seven years, after which a full-time faculty member may be granted tenure by the President of the college upon recommendation of the Rank and Tenure Committee. Such tenure is automatically conferred with award of the eighth annual employment contract.

Petitioner was employed as an instructor in chemistry in 1968 for one year. Annually thereafter he entered into additional one-year contracts, the last of these being for the 1974-75 academic year. This was his seventh year, and petitioner concedes that during that academic year he had not yet achieved tenure. He further concedes that at no time was tenure ever conferred upon him by the president. Petitioner was not discharged prior to expiration of his seventh annual contract but taught the full academic year, ending in May 1975, and was paid therefor. He was not reemployed for the 1975-76 academic year but was notified in December, 1974 that he would not be offered an eighth-year contract with tenure.

Nevertheless, petitioner contends that he had a reasonable expectancy of reemployment, and that during the seventh academic year he had achieved a tentative or “de facto” tenure, entitling him to formal notice and a hearing and a showing of cause for the non-renewal of his employment.

Essentially, petitioner contends that the effective probationary period at respondent college is only six years, rather than seven. He asserts that the recipient of a “letter of intent” accompanying his seventh-year contract is no longer on probationary status during the seventh year but has the same contractual right either to continued employment thereafter or to a formal hearing and showing of cause for termination as do professors with full tenure.

Neither of the courts below found these contentions to be sustained by the evidence, nor do we.

In the faculty handbook there are certain provisions dealing with notice of termination of employment. However, asterisks and a footnote preceding one of these provisions, which might otherwise apply to the present case, make it clear that that provision is subject to the final approval of the Executive Committee of the Board of Trustees. The President of the college testified that the Executive Committee had never approved this particular provision, and that all members of the faculty had been so advised. The provision requires written notice when a full-time faculty member is not to be reappointed,

“At least twelve months before the expiration of an appointment after two or more years in the institution.”

The Court of Appeals indicated that if petitioner had any meritorious claim it would involve this clause, but petitioner expressly disavows in this Court any right to recover thereon and insists that the provision is not pertinent to his claim for breach of contract. For this reason, we deem it unnecessary to give detailed consideration to this termination clause although, had it been in force and effect, its terms may not have been literally observed by the college administration.

When petitioner was reemployed for his seventh academic year, 1974-75, he received a letter from the President dated March 1, 1974, enclosing his new contract and stating that petitioner had been recommended for a grant of tenure “with your eighth contract next year.”

During the fall of 1974, however, petitioner’s status was reconsidered, and he was orally notified by the Academic Dean in November that he would not be reemployed for the eighth year. He did not at that time, or at any time before filing suit, demand formal notice or a hearing. He did have a number of conferences with his faculty colleagues and with the President of the college, and was advised of the reasons for his non-employment. None of these involved the exercise of any First Amendment or other constitutional rights, nor, as previously stated, was petitioner discharged prior to expiration of his current employment contract, for cause or otherwise. He simply was not reappointed, and his only contention here is that during his final probationary year, he was entitled to receive notice and a hearing before being denied reemployment.

The operative contract documents do not so provide, nor does the proof show any custom or practice establishing such procedures. At all times pertinent to this case petitioner was a non-tenured, probationary faculty member, whose contract the college was under no legal obligation to renew.

Petitioner predicates his entire claim upon part of a general policy statement or commentary on Tenure and Academic Freedom of the American Association of University Professors, contained as an appendix to the faculty handbook. This document contains a statement of procedures to be followed in disputed cases when a teacher is terminated for cause. It also contains interpretive comments on the tenure program. The comment relied upon by petitioner is a footnote to a general statement which calls for notice of at least one year prior to expiration of the probationary period if a teacher is not to be continued in service thereafter:

“The effect of this subparagraph is that a decision on tenure, favorable or unfavora- . ble, must be made at least twelve months prior to the completion of the probationary period. If the decision is negative, the appointment for the following year becomes a terminal one. If the decision is affirmative, the provisions in the 1940 Statement with respect to the termination of services of teachers or investigators after the expiration of the probationary period should apply from the date when the favorable decision is made.”

The comment continues with a statement that the “general principle of notice” is developed “with greater specificity” in Standards for Notice of Nonreappointment adopted by the AAUP in 1964. The latter standards, which appear in the commentary, are also part of the principal text of the handbook, appearing as chapter 3, article V, under the heading “Termination of Employment.” These standards contain the twelve-month rule quoted earlier, which respondent had never adopted.

Had the respondent adopted the twelvemonth rule, either by express approval thereof in the handbook or by usage and custom, the contentions of petitioner might have merit. He insists that the comment quoted above means that after he had received his seventh-year contract and “letter of intent”, he was thereafter entitled to the formal notice and hearing procedures incident to termination of tenured faculty members. Since the provision calling for twelve-months’ notice was not in force at respondent, however, petitioner’s contention must fail.

There is no showing that the quoted commentary had been adopted or approved by the college as part of its tenure practices and procedures independently of the notice and termination clause upon which it is an interpretive comment. Absent such evidence, we do not believe that the comment can be divorced from the notice provisions as petitioner contends. He has not established by evidence any usage or practice at respondent to treat persons in their final probationary year as equivalent to tenured faculty members. The evidence is to the contrary. The handbook section defining the duties of the Committee on Rank and Tenure requires that committee to discuss each faculty member at least once each year, “prior to December 15th and/or prior to contract time.” The handbook states that the purpose of the meeting prior to December 15th “is to review those faculty members whose contracts may not be renewed the following year,” and there then follows a reference to the handbook section dealing with termination of employment, chapter 3, article V.

It thus appears that there was no established practice at respondent to make the decision on tenure other than during the final year of probation, and the handbook provisions on termination carry their own warning that the twelve-month notice provisions recommended by the AAUP had not been adopted or placed into effect.

Further, we are impressed that petitioner at no time demanded formal notice or a hearing and that he was accorded numerous conferences and informal meetings which may well have served as a practical equivalent of the more formal procedures for which he now contends. It is unnecessary to decide the question of waiver, however, since we find no express or implied contractual right of a probationary faculty member to those procedures.

We have examined the authorities cited and relied upon by petitioner. Some of these hold that non-tenured faculty members in public institutions may not be terminated contrary to applicable state or local statutory and administrative provisions. Other cases hold that faculty members may not be denied reemployment simply because of their lawful exercise of First Amendment or other constitutional rights. Further, in private colleges, custom, usage, estoppel or the wording of institutional policies may require written notice or other formal procedures in connection with the nonrenewal of employment contracts. See generally Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Soni v. Board of Trustees of University of Tennessee, 513 F.2d 347 (6th Cir. 1975), cert. den. 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976); Toney v. Reagan, 467 F.2d 953 (9th Cir. 1972), cert. den. 409 U.S. 1130, 93 S.Ct. 951, 35 L.Ed.2d 263 (1973), affirming 326 F.Supp. 1093 (N.D.Cal.1971); Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970); Greene v. Howard University, 134 U.S.App.D.C. 81, 412 F.2d 1128 (1969); Francis v. Ota, 356 F.Supp. 1029 (D.Haw.1973). See also State ex rel. Chapdelaine v. Torrence, 532 S.W.2d 542 (Tenn.1975). In our opinion none of the foregoing authorities has application to the facts of the present case. There is no evidence of any departure from this private institution’s written policies and its hiring practices, nor any basis for application of rules of estoppel. During his last probationary year, petitioner’s performance was subject to reevaluation and the respondent was free to reach its conclusion not to extend an eighth-year contract and concomitant tenure, without formal prior notice and hearing.

Finding no infringement of petitioner’s contractual rights by respondent, we affirm the judgment of the Court of Appeals at the cost of petitioner.

HENRY, C. J., COOPER and FONES, JJ., and QUICK, Special Justice, concur.

      . The Academic Dean, by letters dated Dec. 3, 1974, notified petitioner and the President that he was recommending non-renewal of petitioner’s employment for the next schooi year. He did offer a temporary assignment through December, 1975, but petitioner declined this offer. The President formally notified petitioner of non-renewal by letters dated December 4, 1974 and March 14, 1975.

      . A member of the Committee testified that the Committee met, usually in February, “to review the recommendations for promotion and for tenure for the subsequent year." (Emphasis supplied). Contracts were awarded in March of each school year.


source: Caselaw Access Project

author: TODD, Judge.

license: Public Domain

text:
    James E. GLENN and wife, Hallie Jean Glenn, Plaintiffs-Appellees, v. Frank N. WEBB and wife, Rita D. Webb, and Harold Morris and wife, Juanita Morris, et al., Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 2, 1977.
    Certiorari Denied by Supreme Court May 1, 1978.
    Abridged Opinion June 1, 1978.

      Robert E. Bonner, Jr., McMinnville, for plaintiffs-appellees.
    William Dyer, Smithville, Kirk C. Waite, Nashville, for defendants-appellants.
   OPINION

TODD, Judge.

With the concurrence of participating judges, the original opinion has been abridged for publication.

The plaintiffs, James E. Glenn and wife, sued Frank N. Webb and wife, Harold F. Morris and wife, Morris & Webb Development Co., Inc., Dekalb County Bank and Trust Co., and William F. Dyer, substitute trustee, to enjoin a threatened foreclosure, for an adjudication of the rights of the parties and to recover a judgment against the Webbs, the Morrises, and Morris & Webb Development Co. for damages for breach of warranties and/or covenants in a warranty deed.

The Chancellor entered a decree adjudging the respective rights of plaintiffs and defendants, DeKalb County Bank and William F. Dyer, substitute trustee, and no appeal is made from this part of the decree.

The Chancellor awarded plaintiffs judgment against Frank N. Webb and wife, Harold F. Morris and wife and Morris & Webb, Inc., for $6,050.85 compensatory damages. Only the Morrises have appealed from this portion of the decree.

The Chancellor awarded plaintiffs judgment against Frank N. Webb and wife and additional judgment of $5,750.00 as punitive damages, from which award there is no appeal.

Thus, the only parties to this appeal are the Glenns and the Morrises and the only issue on appeal involves the $6,050.85 judgment rendered in favor of the Glenns and against the Morrises.

The first assignment of error is as follows:

“It was error for the Trial Court to find against the defendants Morris and hold them liable for debts incurred without their consent by their co-tenant in common.”

The background of this controversy is as follows:

Originally, appellants Morris and wife were tenants in common with a Mrs. Dut-ton in the ownership of a tract of land.

Mrs. Dutton sold her interest to Webb and wife, so that Webb and wife and Morris and wife owned the land in common.

Thereafter Webb and wife encumbered their interest in the property to DeKalb County Bank.

Still later, without knowledge of the encumbrance, appellants, Morris and wife, joined with Webb and wife in a deed to plaintiffs which deed contained the usual covenants and warranties as to title.

The efforts of the bank to collect the mortgage precipitated this lawsuit and resulting decree of the Chancellor.

Appellants first insist that, in the absence of authorization or ratification, the action of one co-tenant is a nullity insofar as the interests of other co-tenants are concerned. This appears to be the general law as to actions of a co-tenant without the joinder or other co-tenants. However the result is otherwise in respect to actions in which co-tenants join.

In Campbell v. Lewisburg & Northern R.R. Co., 160 Tenn. 477, 26 S.W.2d 141 (1929), the Supreme Court held:

“The chancellor properly held that the obligation of the covenant of warranty was a joint obligation of the grantors of the deed to the Lewisburg & Northern Railroad Company. Watts v. Ramsey, 156 Tenn. 463, 2 S.W.2d 409.” 160 Tenn. 497, 26 S.W.2d 147.

Watts v. Ramsey, 156 Tenn., 463, 2 S.W.2d 409 (1927) involved the question of whether a wife is liable in damages for breach of covenants in a deed which she and her husband jointly executed. The Supreme Court said:

“. . .we have been cited to no authority, and have been unable to find any, holding that a married woman who has been emancipated from all disabilities of coverture, and given the status of a feme sole is not liable for a breach of covenants, where she expressly purports by the deed to convey an absolute title and to covenant against incumbrances. In such circumstances, if the deed does not express the real agreement of the parties, the remedy would be a bill in equity for reformation of the deed.” 156 Tenn., pp. 469, 470, 2 S.W.2d p. 410.

In Jordan v. Trice, 14 Tenn. (6 Yerg.) 479 (1834), trustees were held liable upon a warranty even though they had no personal interest in the transaction in which the warranty was made.

In Castleman Construction Co. v. Pennington, 222 Tenn. 82, 432 S.W.2d 669 (1968), there was a similar situation in that one of two co-tenants mortgaged his interest after which both co-tenants joined in a warranty deed. This Court recognized the rights of a purchaser against the co-tenant who did not mortgage but did join in warranties and covenants, but this Court relieved the innocent conveyor on the ground that the real plaintiff was the title insurance company which had erroneously certified the land to be unencumbered and thereby induced the innocent tenant to join in the deed. The Supreme Court reversed and held the innocent tenant liable. The opinion discussed the fact that the innocent tenant entrusted the management of the property to her co-tenant, but the result was that both conveyors were held liable under their covenants in their deed.

Under the clear and unquestioned authority in this State, appellants are liable for breach of the covenants in the deed they signed even though they were not responsible for the encumbrance and had no knowledge of it.

Appellants also insist that they should not be held liable because the same attorney who prepared the mortgage executed by the Webbs also represented plaintiffs in the purchase of the property from the Webbs and the Morrises. Appellants conceive that it was the duty of said attorney to disclose to his clients the existence of said mortgage and that his failure to do so is the real cause of the present difficulty. No authority has been cited to support this insistence.

It would have been most fortunate for all concerned (except the Webbs) if said attorney had remembered the mortgage and ver-lfied its discharge before closing the purchase by his clients. Nevertheless, this Court is at a loss as to any rule of law whereby to defeat the claim of plaintiffs because of the circumstances stated. Plaintiffs had the right, if they chose to do so, to rely entirely upon the representations and covenants of the Webbs and Morrises, as stated in their deed. This, plaintiffs evidently did.

The first assignment of error is respectfully overruled.

The remaining assignments of error are as follows:

ASSIGNMENT OF ERROR NO. 2
“It was error for the Trial Court to allow William F. Dyer to testify as to the indebtedness owing to the bank, such testimony on his part being hearsay.
ASSIGNMENT OF ERROR NO. 3
“It was error for the Trial Court to allow testimony from records of the De-Kalb County Bank by William F. Dyer, counsel for said Bank.
ASSIGNMENT OF ERROR NO. 4
“It was error for the Trial Court to allow the introduction of the records of the DeKalb County Bank without proper foundation being laid for their introduction.”

This Court would be amply justified in disregarding the last three assignments because they are not properly supported as required by the Rules of this Court.

A detailed examination of the record discloses that certain incompetent evidence was presented as to which exceptions were not preserved by proper objections.

In order to be available on appeal, objections must be timely and properly presented to the Trial Court. This did not occur.

Assignments 2, 3, and 4 are respectfully overruled.

It is true that appellants appear to have been imposed upon by their former co-tenants, the Webbs. If so, the courts are open to an action against the Webbs for re-dress. However, it would not be just to deny ap-pellees the benefit of an assurance of title signed by appellants, albeit ignorantly and ill-advisedly.

No reversible error is found in the judgment of the Trial Judge which is affirmed. All costs, including costs of this appeal, are taxed against appellants.

Affirmed.

SHRIVER, P. J., and DROWOTA, J., concur.


author: T. MACK BLACKBURN,

text:
    Paul BUTTS et al., d/b/a A. C. Butts & Sons, et al., Plaintiffs-Appellees, v. CITY OF SOUTH FULTON, Defendant-Appellant.
    Court of Appeals of Tennessee, Western Section.
    Dec. 14, 1977.
    Certiorari Denied by Supreme Court May 15, 1978.

      Elam, Glasgow, Tanner & Aeree, Union City, for defendant-appellant.
    Heathcoek & Burcham, Union City, for plaintiffs-appellees.
   T. MACK BLACKBURN,

Special Judge.

This case involves the construction of a road by a municipality which interferes with the natural surface drainage causing water to back up to the injury of property on the higher level.

The plaintiffs own and operate a feed mill and grain storage business in South Fulton and have done so since 1946. This business is located east and south of Harris Fork Creek, a stream subjected to overflows in the spring and winter of each year. In 1973 the defendant, City of South Fulton, commenced the construction of a street known as Harris Road Extended running north and south some 900 feet in length. The construction was completed in 1974. This road is perpendicular to the natural flow of the flood and surface waters of Harris Fork Creek and surrounding areas.

In 1975, on March 12, March 28, and July 20, heavy rainfall occurred in this area resulting in flood damage to plaintiffs’ property, and bringing about this suit. From a judgment in favor of the plaintiffs, the defendant has appealed.

Appellants have made five assignments of error:

I.
The Chancellor erred in awarding the judgment in favor of plaintiff Butts and . in granting injunctive relief against the defendant .
II.
There is no material evidence to support the findings and judgment of the Chancellor.
III.
The evidence in this case preponderates against the findings and judgment of the Chancellor and in favor of a judgment for the defendant in all matters at issue.
IV.
The Chancellor erred in his definition of a legal act of God, as applied to the facts in this case.
V.
The Chancellor erred in declining to sustain the second defense ... to the effect that the action . . . was barred by the application of the statute of limitations set forth in the provisions of Section 6-1012, Tennessee Code Annotated.

1. This case was tried before the Chancellor and extended over two days. The Bill of Exceptions contains nearly 600 pages and there were in excess of 60 exhibits filed. Immediately following the trial of the case, the Chancellor made his ruling along with an oral finding of facts in which he concluded the road should never have been built and that it impedes the “flow of water”.

As pointed out by Judge Luke McAmis in Dixon v. City of Nashville, 29 Tenn.App. 282, 203 S.W.2d 178, “a wrongful interference with the natural drainage of surface water causing injury to an adjoining landowner constitutes an actionable nuisance”.

The proof in this case shows that prior to the construction of Harris Road Extended, the appellee’s property had never been flood or damaged by flood water. That while water had risen upon the property, it quickly drained off over the adjoining property to the west and caused no injury. That when this road was being constructed in 1973 at an elevated height of 3' to 4' above the land on the east side, the appellant was informed by the appellee orally, and by appellee’s attorney by letter, that the lack of adequate drains could cause the water to back up on the appellee’s property. Appellant agreed to install additional tiles under Harris Road Extended to carry off the water, but then failed to do so when the property owner to the west threatened to sue appellant if these additional drain tiles were put in and water was diverted over his property. Two smaller tiles were then placed next to a large tile at the extreme northern end of the road near the bridge across Harris Fork Creek.

There is evidence in the record showing that Harris Road Extended, as constructed, formed a dam which blocked the natural flow of water through and over the land to the west, and on two of the occasions when inordinate amounts of rain fell, the land to the east contained an accumulation of water to a height near the top of the road while the land to the west contained only rain water and no flooding.

The record contains extensive proof that the construction of Harris Road Extended in the fashion it was designed and built constitutes a nuisance, temporary and continuous in character, that interfered with the natural drainage of the area causing surface waters to accumulate and inundate the appellee’s property to their damage.

We find no error in the Chancellor’s decision awarding damages to the appellee and affirm this portion of the judgment.

2. The injunction issued by the trial court is as follows: “It is further ordered, adjudged and decreed by the Court that the defendant, City of South Fulton, shall be required to lower Harris Road Extended to the level of the adjacent land, or to install a pump or some other means and submit plans for getting rid of the water.”

While mandatory injunctions are often used to abate a nuisance, the remedy is drastic and should be used only if no other adequate relief is available. See Wilson v. Louisville and Nashville L.R. Co., 12 Tenn. App. 327, for a factual situation where the only adequate relief is a mandatory injunction.

In the instant case it is difficult to see how the lowering of Harris Road Extended to the level of the adjacent land would be of benefit. The proof shows that prior to the construction of this road the land upon which it was built was a drainage ditch. Merely to lower the level of the road would not restore the property to its original state.

The alternative to the lowering of the road in the order of the Court i. e., “. . .to install a pump or some other means and submit plans for getting rid of the water”, places the trial court in a supervisory position over engineering concepts, designs and plans, something for which the court has no expertise nor any qualifications for so performing.

The trial court is an arbiter of conflicting positions between disputants. It is a passive forum with no power to investigate facts and it should never become a participant in the controversy which brought the matter to the court in the first instance.

The appellees have adequate remedies under the law without the use of a mandatory injunction. In addition to damages for the injury, as was the relief awarded in this cause, the property owner has the right to an action for inverse condemnation under appropriate sections of the Eminent Domain statutes. Jones v. Cocke County, 57 Tenn.App. 496, 420 S.W.2d 587.

3. Appellants contend the rainfall which occurred was an “Act of God” and they, therefore, cannot be held accountable for the damages caused thereby.

Any misadventure or casualty is said to be caused by the “Act of God” when it happens by the direct, immediate, and exclusive operation of the forces of nature, uncontrolled or uninfluenced by the power of man and without human intervention. It must be of such character that it could not have been prevented or escaped from by any amount of foresight or prudence, or by the aid of any appliances which the situation of the party might reasonably require him to use.

Had not Harris Road Extended been constructed as it was, and the natural flow of surface water continued as it always had, then the heavy rains of March and July and the resulting flood if such had occurred might reasonably have been called an “Act of God” in the legal sense and the appellant’s assertion of non-liability could very well have been valid. Here, however, the features of the appellant’s construction work was an intervening cause to the heavy and unusual rainfall, and prevented the run off of the fast flowing water. This factor was the proximate cause of the flooding of appellee’s property and the damage incurred thereby. This, in effect, was what the Chancellor held and we agree with the finding.

4. The statute of limitations as set forth in Section 6-1012 T.C.A. does not apply to this case. Two relatively recent matters decided in this court answer fully appellant’s contention in this respect and require no further examination herein.

In the case of Dixon et a 1. v. City of Nashville, supra, the court sitting en banc with the opinion written by the then presiding Judge Luke McAmis; and the case of Kind et ux. v. Johnson City (1970) 63 Tenn. App. 666, 478 S.W.2d 63, the Eastern Section of the Court with the opinion written by Judge Robert Cooper, now an Associate Justice of the Supreme Court, both discussed thoroughly the statute involved and held in factual situations such as the instant case, wherein the city created and maintained a nuisance continuous in character, the one year statute of limitations as set out in Section 6-1012 T.C.A. did not apply.

The awarding of damages to the appellee by the trial court is affirmed. The order issuing the mandatory injunction is reversed and the costs of the cause are taxed to the appellant.

MATHERNE and NEARN, JJ., concur.


author: NEARN, Judge.

text:
    Newt FRAZEE, Appellee-Appellant, v. Gladstone O. DOBSON, Appellant-Appellee.
    Court of Appeals of Tennessee, Western Section.
    Dec. 20, 1977.
    Certiorari Denied by Supreme Court May 1, 1978.

      W. H. Lassiter, Huntingdon, for appellant-appellee.
    Prank L. Hollis, Camden, Homer H. Wal-drop and David R. Farmer, Jackson, for appellee-appellant.
   NEARN, Judge.

The suit was one to dissolve a partnership, obtain an accounting and a proper division and distribution of the assets.

The Chancellor made distribution but to the satisfaction of neither partner and both have appealed. All Assignments of Error are directed ultimately to the division made by the Chancellor.

Newt Frazee and Gladstone 0. Dobson were partners in sawmill, land development, and cattle operations. Dobson had some difficulties with the Internal Revenue Service over the payment of his personal taxes. Some partnership assets were in Dobson’s name only. Having a penchant for “getting theirs first”, the I.R.S. seized assets in the name of Dobson, which included partnership assets. The partners were having serious accounting difficulties prior to I.R.S. involvement, and the I.R.S. seizure provided the immediate impetus for this suit filed by Frazee to dissolve the partnership.

Newt Frazee is a man of very limited formal education. Before entering into a partnership with Dobson, Frazee had operated a sawmill for forty to fifty years. Dobson was and is the owner of a lumberyard. The original oral deal made about ten or twelve years prior to suit, was that Dobson was to furnish the sawmill and Fra-zee was to furnish the labor and upkeep of the mill. Net profits were to be split 50-50. Frazee was to receive a minimum wage which was to be drawn against his share of ,the profit. In other words, first Dobson was to receive the same amount that Fra-zee had received as wages and then the balance of the profit split 50-50. In the operation of a sawmill it is, of course, necessary to have timber to saw. At first, timber rights were purchased and the timber sent to the sawmill. Then it was decided that it would be better to buy land in fee and cut the timber therefrom. This was done. Then it was perceived that the cleared land would afford good pasture and cattle were purchased and placed upon the cleared land. Then it was decided that some of the land purchased and cleared would suffice as subdivision and building sites. Accordingly, some of the .land was subdivided, homes built upon it, sold, and cash and mortgages received therefor. Then the I.R.S. moved in.

From this point on, especially in regard to the bookkeeping between the parties, the proof, to say the least, is confused. The real issue between the parties was one of accounting or bookkeeping. We fully concur with the first sentence of the Chancellor’s finding of fact, viz., “The status of this case is such, that it is next to impossible to be certain, as to any given fact in issue.” This is so because it would seem that some records were kept not at all, some kept in the head, part of some were with Frazee, part of some were with Dobson, part of some were lost and part of some were burned at about the time the I.R.S. became involved.

Frazee testified that lumber sawn by the mill was delivered to Dobson’s lumberyard (Frazee was not a partner in the lumberyard) and Dobson paid to the sawmill only one half the value of sawn lumber “since Dobson was a partner in the sawmill”. Frazee paid his own salary and sawmill expenses from the sawmill account which consisted principally of funds received from Dobson from the sale of lumber to Dobson Lumber Company at one half price plus funds received from scrap lumber sold as firewood. At the end of the year Frazee would owe Dobson an amount equal to what Frazee had drawn as a salary plus half the “profit” on the sawmill books. Frazee began to notice that every year, although he sawed more lumber each year, the sawmill just wasn’t making any profit. Not having accounting experience, he never did understand exactly why. Even at time of trial he wasn’t sure why it was not all right for Dobson to pay only one half the value of lumber sawn.

Dobson did not deny such was the payment procedure for lumber received by his lumberyard. His explanation of its correctness is just unfathomable to us. Of course, the result of such procedure is a split of at least three fourths to Dobson and at best one fourth to Frazee.

Dobson complained that in spite of all the assistance he gave, Frazee just could not run the sawmill in a profitable manner and he “lost” money every year on the sawmill partnership. With this accounting procedure it would be most difficult for the records of the sawmill to show a “profit” in which Dobson was to share. However, at the price Dobson’s Lumber Company was buying lumber, the lumber company, of which Frazee had no interest, ought to have had some nice profits for those corresponding years.

Dobson had kept the records, such as they were, of the cattle and subdivision operations, and debited Frazee’s partnership share of the sawmill operation with the expenses of those operations over profits as well as any expenses he felt were owed him by the sawmill operation arising out of transactions between the sawmill and Dob-son’s lumberyard.

In an attempt to show the amount Frazee was entitled to, plaintiff hired the services of Stanley Donald, C.P.A., to reconcile the partnership accounts. Donald compiled his report from the records of Crawford, the public accountant used by Dobson in preparing tax returns for the Dobson Lumber Company and Dobson individually, tickets that showed the transfer of lumber from the sawmill to the lumber company, copies of ledger sheets provided by Dobson, the work papers and tax returns prepared by Crawford and other miscellaneous records, including Frazee’s records of the sawmill operation and the discovery depositions of the parties.

The Chancellor found the Donald report to be correct. He ordered that all partnership assets be sold and that Frazee be first paid therefrom the sum of $40,368.76 as shown owed him by the Donald report plus an additional $316.24 which represented one half the proceeds of an “ASCS” check received by Dobson belonging to the partnership, but which he admitted putting to his own personal use. The total preference allowed by the Chancellor was $40,685.00.

The Chancellor disallowed a preference claim of $38,274.33 of Dobson.

The record shows beyond doubt that the Chancellor based his judgment of the amount due Frazee upon the testimony and accounting report of C.P.A. Stanley Donald. The first seven Assignments of Error of appellant Dobson are bottomed on a rejection of the Donald report by this Court. On appeal various and sundry reasons are now given for the rejection of the Donald report. At trial, the report was objected to on only one ground, viz.: “I object to the report and his testimony because of the statement on the first page of the report which qualifies everything and says it was not correct”. The objection was overruled. The statement alluded to in the objection is as follows:

The accompanying Balance Sheet and related schedules are not intended to be represented as presenting a true and accurate statement in every detail. The incompleteness of records and supporting data necessitates that I disclaim and [sic] opinion as to the fairness of the presentations in the Balance Sheet and supporting schedules. The only representation made is that the accompanying Balance Sheet and supporting schedules reflect the results of analysis, review and adjustments in conformity with generally accepted accounting principles.

We believe the Trial Court acted properly in overruling the objection on the stated grounds. The accountant’s statement is to the effect that he did the best he could with the information available. We know of no one who can say more. The deficiency in accounting records we find to be largely the fault of Dobson and he should not profit thereby. § 60, 61 Gibson’s (5th Edition); see Brady & Edmondson v. Lambert (1928 E.S.) 7 Tenn.App. 494. Further, Donald’s report greatly relied upon the books and records of Harold Crawford, public accountant, who served as accountant for the Dobson-Frazee ventures as well as Dobson Lumber Company. Crawford’s figures were evidently accepted by Dobson prior to litigation, but were attempted to be discredited by Dobson at trial on the basis that Crawford only prepared tax returns and “he was just an accountant, he would come by every two or three months and picked up the checkbooks that’s all.” However, it appears to us such was more than anyone else did.

We find that the Donald report was based upon the very best evidence obtainable and was admissible.

Other objections to the admission of the report we find come too late. It should be pointed out that Dobson has changed counsel since the trial of this case. Some of the grounds now forming the basis of objections appear to us as grounds that were waived below.

The first seven Assignments of Error are overruled.

The eighth Assignment of Error is that the Chancellor erred in not awarding Dobson a preference of $38,274.33. We find the Assignment to be without merit. The claim arises from an accounting based on documents furnished an accountant by Dob-son, which documents were evidently prepared for the purposes of trial. In Dobson’s testimony he claims to have loaned the sawmill $15,000.00 and introduced a check, the original of which is in the record, in that amount to support the claim. We cannot help but note that our examination of the check fails to reveal that it has ever been deposited or negotiated with any bank.

The result is all Assignments of Error of appellant Dobson are overruled.

Frazee’s first Assignment of Error is that the Chancellor erred in not awarding Frazee an additional salary for services rendered in addition to the meager sums he drew over the years. As testified by Fra-zee, that was not the deal. The Assignment is overruled.

The remaining Assignments of Error, in essence, fault the Chancellor for not awarding Frazee more than he did based upon other “equitable principles”. We are of the opinion that the Chancellor did a creditable job in doing equity and settling accounting problems between the parties with what he had.

All of Frazee’s Assignments of Error are overruled.

Costs of Appeal are assessed equally between the parties.

The cause is remanded for any further proceedings necessary to effect the Chancellor’s decree which is affirmed.

Chancellor William H. Inman, by designation of the Supreme Court of Tennessee, took part in the hearing of this appeal in the absence of Judge Paul R. Summers.

Done at Jackson in the two hundred and second year of our Independence and in the one hundred and eight-second year of our Statehood.

MATHERNE, J., and WILLIAM H. IN-MAN, Special Judge, concur.


text:
    William J. HAYNES, Jr., et ux., Plaintiffs-Appellees, v. CUMBERLAND BUILDERS, INC., et al., Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Feb. 24, 1978.
    Certiorari Denied by Supreme Court May 1, 1978.
    John E. Buffaloe, Jr., Nashville, Thomas C. Scott, Butler, Tune & Entrekin, Nashville, for plaintiffs-appellees.
    James L. Bass, Nashville, for defendants-appellants.
   TODD, Judge.

OPINION

With the concurrence of participating judges, the original opinion has been abridged for publication.

This is a suit by a purchaser of realty for damages for misrepresentation as to the correct location of one of the boundary lines. Upon a former appeal, this Court affirmed the Chancellor’s findings as follows:

“1. Defendant erected and offered for sale a new house on lot 34 of Gold Key Estates Subdivision in Davidson County.
“2. Defendant’s agent in the sale of the property was W. A. Appleton Realty Company.
“4. At a later date Appleton pointed out to the plaintiffs the boundaries of the property and represented that a utility pole in the north-east corner was on the property line. Appleton also represented to plaintiffs that the graveled driveway on the north side of the property was within the property boundaries.
“8. About January 15, 1975, defendant started construction of a house on lot 35 and the foundation appeared to be less than five (5) feet from the plaintiffs north boundary. Plaintiffs requested defendant to observe the ten (10) foot side-yard clearance and were informed that the boundary was approximately in the middle of plaintiffs’ driveway.” (Emphasis supplied)

However, this Court vacated the award of damages and remanded for the ascertainment of damages upon proper criteria.

The Chancellor awarded plaintiff $6,000.00 damages, and defendant has appealed.

The sole assignment of error is as follows:

“The judgment of the Court and the basis upon which the Court established the amount of damages awarded plaintiffs is contrary to the evidence submitted in the cause and is contrary to the applicable law.”

Appellant asserts that the only evidence of damages is the testimony of plaintiff.

Plaintiff testified that he contracted to pay defendant $35,000.00 for the house and lot in question, and that the actual value of the house and lot with the true boundary as later discovered by him was $29,000.00.

The sales price of similar land is some evidence of value of land in issue. See authorities annotated in 9 Tenn.Dig., Evidence, § 142(1). A fortiori, the sales price of the very land in question is evidence of its value. 32A C.J.S. Evidence § 109c, pp. 841, 842, note 62.

In the case of services, it has been held that contract price is some evidence of the reasonable value thereof and is sufficient in the absence of evidence to the contrary. 32A C.J.S. Evidence § 109e, p. 844.

Accordingly, it is reasonable to hold that the agreed sale price made under false representations of a boundary is evidence of the value which the property would have if the representations were true.

It has been held that the owner of property is a competent witness as to its value. Haynes v. Cumberland Builders, Inc., Tenn.App.1976, 546 S.W.2d 228. Thus the plaintiff did offer competent and material evidence of damages in the amount of $6,000.00.

Appellant next insists that the disposition of the case should be determined by the testimony of its witnesses that there were no damages as a result of the misrepresentation. Examination of such testimony reveals that it was given in response to questions which assumed that the quantum of land involved in the misrepresentation was trivial.

For example, the testimony of L. H. Hardaway, Sr., was based upon the supposition that the only misrepresentation regarded a utility pole as part of the line, and the testimony of Ronnie Grizzard and Theodore Lewis was based upon the supposition that only one foot of frontage was misrepresented.

The finding of fact of the Chancellor, as previously affirmed by this Court, was that the line was falsely represented to include all of a driveway, when the correct line bisected the driveway. The basis of the questions directed to defendant’s witnesses rendered their answers of little value if not completely valueless.

Generally the weight and credibility of the testimony heard orally is to be determined by the Chancellor and will not ordinarily be disturbed on appeal. Ogle v. Trotter, Tenn.App.1973, 495 S.W.2d 558.

The decree of the Chancellor is affirmed. All costs, including costs of this appeal, are taxed against appellant.

Affirmed.

SHRIVER, P. J., and DROWOTA, J, concur.


author: DAUGHTREY, Judge.

text:
    Donnie THOMPSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 20, 1977.
    Thomas H. Strawn, Tullahoma, for appellant.
    Brooks McLemore, Jr., Atty. Gen., William O. Kelly, Asst. Atty. Gen., Nashville, Charles S. Ramsey, Jr., Dist. Atty. Gen., Manchester, for appellee.
   OPINION

DAUGHTREY, Judge.

The principal issue raised by this appeal concerns the validity of the trial court’s order running the sentence imposed in this case consecutively to any sentence which might later be imposed as the result of charges then pending in another county which had not yet produced a conviction or other final judgment. We hold that the trial court’s attempt to engage in what amounts to consecutive sentencing in futuro was without efficacy.

On June 15, 1976, the defendant-appellant, Donnie Thompson, pleaded guilty to a reduced charge of second degree burglary in return for the district attorney’s recommendation of a minimum sentence of three years, to be served concurrently with any sentences imposed as a result of other out-of-county charges pending against Thompson. The original order of judgment was superceded by an order entered two weeks later, on June 29, 1976, at which time the trial judge took the matter of concurrent/consecutive sentencing under advisement.

After a hearing, the trial judge entered yet another order on September 8, 1976, which required “that the sentence imposed upon the defendant should run consecutively with the sentence imposed in Franklin County and any sentence which the defendant may receive in Moore County for criminal conduct prior to the date of this order, including his escape from custody in Moore County” (emphasis supplied). The September 8 order further recited that the defendant would not “receive credit on the Coffee County sentence for any time he has been outside the State Penitentiary awaiting trial in Moore County.”

Upon the defendant’s motion to reconsider the sentencing order, the trial judge reviewed his determination, and on December 3,1976, he reiterated the terms of the October 8 order, with one exception: he changed the final provision to prohibit credit on the defendant’s sentence “for any time that he has been outside the State Penitentiary awaiting trial in Moore County or any other county or jurisdiction ” (emphasis supplied).

This appeal is before us on the technical record alone. The defendant contends that the final judgment entered on December 3 is erroneous primarily because it purports to delay service of his penitentiary term until the expiration of an unspecified sentence based upon a conviction not in existence at the time of his Coffee County conviction. He also complains that the sentencing order fails to allow credit for time served prior to his incarceration in the state penitentiary for the offense on which this conviction is based. We find merit in both these assignments of error.

Under the express terms of T.C.A. § 40-2711:

[W]hen any person has been convicted of two (2) or more offenses, judgment shall be rendered on each conviction after the first, providing that the terms of imprisonment to which such person is sentenced shall run concurrently or cumulatively in the discretion of the trial judge . (emphasis supplied).

We conclude, and the State appears to concede, that under the terms of the statute a sentence may only be run consecutively to a previously imposed sentence. There is no statutory authority for the in futuro order entered in this case. It would be solely within the discretion of the Moore County Court to determine whether a sentence resulting from a subsequent Moore County conviction should be served consecutively to or concurrently with the pre-existing Coffee County sentence now under review.

We find no error in the trial court’s decision to run the defendant’s sentence consecutively to a pre-existing Franklin County sentence. However, the order should be modified to delete any reference to charges pending in Moore County. Furthermore, the modified order should clearly reflect the defendant’s right to “credit on his sentence for any period of time for which he was committed and held in the city jail . . , or county jail or workhouse, pending his arraignment and trial” and for any “time he served in the jail, workhouse or penitentiary subsequent to any conviction arising out of the original offense for which he was tried,” in compliance with T.C.A. § 40-3102.

The judgment is hereby remanded for further proceedings not inconsistent with this opinion.

RUSSELL, Panel P. J., and GAL-BREATH, J., concur.


author: RUSSELL, Panel Presiding Judge.

text:
    Tommy B. CUNNINGHAM and Walter M. Howard, Jr., Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 13, 1977.
    Affirmed by Supreme Court May 22, 1978.

      Jerry H. Summers, Chattanooga, for appellants.
    Brooks McLemore, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Stephen M. Bevil, Asst. Dist. Atty. Gen., Chattanooga, for appellee.
   OPINION

RUSSELL, Panel Presiding Judge.

The appellants, Tommy B. Cunningham and Walter M. Howard, Jr., have both been convicted of rape and sentenced to ten years in the State penitentiary. We find that the appellants’ right to a speedy trial, a right guaranteed by the constitution of the United States and of the State of Tennessee, has been violated and therefore their convictions must be reversed.

The undisputed evidence in this case shows that on January 20, 1974, Cassandra Yvonne Nance accompanied the appellants to the appellants’ apartment off East Brainerd Road in Chattanooga and engaged in sexual intercourse with both of them. Cunningham and Howard contended that Miss Nance consented to the sexual activity; Miss Nance testified that she was raped.

At the appellants’ trial Tommy B. Cunningham testified that Miss Nance had consented to sexual intercourse with him five to fifteen times during the three year period ending on January 20, 1974. Walter M. Howard said that Miss Nance had voluntarily performed the sex act with him on one occasion during the summer of 1973. These testimonies were in direct contradiction to Miss Nance’s statement that she was a virgin prior to January 20, 1974. Dr. Alfonso Barnes, who examined Miss Nance a few hours after the alleged rape, testified for the State. He said his examination revealed that she had had sexual intercourse within the last 12 to 24 hours but that she did not have any bruises, lacerations, hema-tomas, or excoriations. He also testified that she admitted having experienced sexual intercourse prior to this occasion.

In their first assignment of error, the appellants contend that their convictions should be reversed because the State did not provide them with a speedy trial, thus denying them the protection guaranteed by the Sixth Amendment to the United States Constitution; by Article I, Section 9 of the Tennessee Constitution, and by § 40-2001 of the Tennessee Code Annotated. We agree.

A preliminary hearing was held for the appellants in the City Court of Chattanooga on February 13, 1974. On that day an attorney was appointed for the appellants and they were bound over to the Hamilton County Grand Jury. The Grand Jury on March 27, 1974, returned an indictment charging the appellants with rape. The appellants were not notified of the status of their case by their court-appointed attorney or by anyone in the law enforcement system for almost two years. In February of 1976 they were arrested on capiases issued as a result of their joint indictment and in December of 1976 their trial was held.

When a defendant in a criminal ease asserts that the government has failed to afford him a speedy trial, four factors are to be weighed in considering whether his constitutional right has been violated: (1) the length of the delay, (2) the defendant’s assertion of his right to a speedy trial, (3) the reason for the delay, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Bishop, 493 S.W.2d 81 (Tenn.1973). No single factor is determinative in all cases but the most crucial inquiry is whether the delay has prejudiced the defendant. U. S. v. Reynolds, 489 F.2d 4 (6th Cir. 1973); Trigg v. State of Tennessee, 507 F.2d 949 (6th Cir. 1974), cert. denied 420 U.S. 938, 95 S.Ct. 1148, 43 L.Ed.2d 414.

The length of the delay between the return of the indictment against the appellants and their subsequent arrest on capias-es (23 months) is, as the State concedes, sufficient to require examination of the other three factors to determine whether the appellants’ right to a speedy trial has been violated.

The appellants did not raise the speedy trial issue until they filed their Motion for a New Trial. However, the failure to assert the right to a speedy trial before the trial is held does not constitute a waiver of the right. Barker v. Wingo, supra; State v. Bishop, supra. Moreover, it would have been impossible for the appellants to have asserted their right during the interval between their indictment and their arrests on capiases as they were not notified that the indictment had been returned.

In all criminal cases, the State is under an affirmative duty to speedily try the accused. Garrett v. State, 534 S.W.2d 325 (Tenn.Cr.App.1975). In this case the State has offered no explanation for its failure to discharge that duty. As is admitted in the State’s brief, “There is no indication in this record of the basis for this delay”.

At the hearing on the appellants’ motion for a new trial, both Cunningham and Howard testified that the delay in this case caused the unavailability of two potential witnesses who could have given first hand testimony concerning the sexual activity of the alleged victim. One of the witnesses had moved to California and could not be reached by the appellants, and they had simply lost contact with the second one. In a case such as this one, which, as the trial court observed, is a very close case on the evidence, such testimony could have had a major impact on the jury in their deliberation. This is particularly true because the defense witnesses who were called at the trial testified only regarding Miss Nance’s reputation for sexual promiscuity and did not speak from first hand observation. As the Tennessee Supreme Court indicated in State v. Bishop, supra, the importance of the loss of potential witnesses varies depending on the strength of the State’s case. In a case, such as this one, which is close on the evidence, the testimony of each individual witness takes on added significance.

We think that the State’s totally unexplained failure to bring these appellants to trial coupled with the appellants’ showing that the delay has prejudiced them require a conclusion that their right to a speedy trial has been violated.

Having reached this conclusion, we find it unnecessary to address the appellants’ assignment of error based upon newly discovered evidence.

The other assignments of error have been carefully considered and are meritless.

Reversed and dismissed.

DAUGHTREY and BYERS, JJ., concur.


author: BYERS, Judge.

text:
    David RUSHING, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 20, 1977.
    Certiorari Denied by Supreme Court May 1, 1978.

      Howard F. Butler, Butler, Tune & Entre-kin, Nashville, Laurence M. McMillan, Clarksville, for appellant.
    Brooks McLemore, Jr., State Atty. Gen., Robert E. Kendrick, Deputy State Atty. Gen., Nashville, C. Wade Bobo, Asst. Dist. Atty. Gen., Clarksville, for appellee.
   OPINION

BYERS, Judge.

The Appellant was convicted on a charge of rape of a female over twelve (12) years of age and sentenced to serve ten (10) years in the penitentiary.

The Appellant assigns thirteen (13) errors attacking the validity of the verdict. Four (4) of the assignments question the sufficiency of the evidence, four (4) are complaints concerning the separation of the jury, one (1) assignment complains that the jury deliberated on the final day of trial before court was convened, one (1) complains that a mistrial should have been granted because the jury was unable to reach a verdict, one (1) complains that a witness was allowed to testify as to self-serving statements made by the prosecu-trix, one (1) complains of the court’s charge that all State’s witnesses did not have to testify before the grand jury, and one (1) claims the State withheld photographs of the victim from the Appellant which were vital in the case.

The judgment is affirmed.

The evidence presented by the State and accredited by the jury shows that the prose-cutrix was given a ride by the Appellant in a truck which he was driving at approximately 6:00 p. m. on July 1, 1974. The Appellant was to transport the woman to her place of employment. Instead of doing this, the Appellant drove beyond her destination and forced her to remain in the vehicle. He then placed a knife at her throat and drove into a rural area of Montgomery County. En route, he cut a t-shirt which she was wearing completely down the front. Additionally, he cut her brassiere into two pieces, the severance being made on the area between the two cups of the garment. When they arrived at a secluded area beside a large creek the Appellant forced the woman to disrobe and he then penetrated her sexually but did not ejaculate. After an unsuccessful attempt to require her to commit fellatio upon him, the Appellant ordered the woman to re-clothe herself. The Appellant then directed her to return to the truck. As they were walking in that direction, the woman turned and the Appellant slashed her with the knife. This inflicted a wound extending six and one-half (6½) to seven (7) inches across the breast bone between the breasts, which penetrated one and one-half (1½) inches into the sternum.

In opposition to the State’s evidence, the Appellant claimed he had never seen the woman prior to being charged with this offense and offered evidence of an alibi.

The Appellant, in attacking this judgment, is faced with the well known rule that a verdict of guilt, approved by the trial judge, accredits the testimony of the witnesses and resolves all conflicts in the evidence in favor of the State, and establishes the State’s theory of the case. A case may not be reversed on appeal on the weight of the evidence unless the evidence clearly preponderates against the verdict of guilt and in favor of the innocence of the accused. State v. Grace, 493 S.W.2d 474 (Tenn.1973); McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). The jury has resolved the conflict in the testimony of the witnesses in favor of the State. The claim that the evidence preponderates against the verdict of the jury is not sustained by this record. Rowan v. State, 212 Tenn. 224, 369 S.W.2d 543 (1963).

The Appellant in his attack on the verdict says it shows passion, prejudice and caprice on the part of the jury. The punishment for the offense of which he is convicted is imprisonment for life or for a period of not less than ten (10) years. T.C.A. § 39-3702. The punishment fixed by the jury is the minimum punishment and it is within the limits allowed by the law. It does not evidence passion, prejudice or caprice. Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963).

The claim that the trial judge should have directed a verdict of acquittal at the close of the proof is not well taken. When, as here, the evidence does not preponderate against the verdict of the jury, a directed verdict should not be granted by the trial judge. Taylor v. State, 2 Tenn.Cr.App. 459, 455 S.W.2d 168 (1970).

The Appellant complains that the trial judge should not have brought the jurors from the jury room after they had begun deliberation and allowed them to separate to their homes for the night.

His complaint on this matter is that the action of the trial judge did not comply with T.C.A § 40-2528 which allows separation of jurors in non-capital cases on agreement of the State and an accused.

The record indicates that at the commencement of the trial both sides agreed to allow the jury to separate. The Appellant asserts that his agreement was conditioned on the. trial judge inquiring of the jurors each morning as to whether anyone had attempted to influence them in the case. After the proof, argument of counsel, and charge of the trial court was given, the trial judge dismissed two (2) alternate jurors who had been selected and the regular jury retired to deliberate. This occurred at approximately 6:00 p. m. on the third day of the trial. At 9:30 p. m. the trial judge had the jury returned to the courtroom where they reported a lack of progress in reaching a verdict. At the jury’s request, the trial judge allowed them to deliberate until nearly 10:00 p. m. The jury was again returned to the courtroom and announced they wished to go home for the night and return the next morning for further deliberation.

The Appellant claims that his agreement to allow the jury to separate was breached because the alternate jurors had been discharged and could not be asked on the following morning if they had been approached about the case.

The Appellant’s assertion that this breached his conditional agreement to allow the separation of the jury is unfounded. The alternate jurors had completed their duties. They were not to decide the case. Whether they were approached or not was meaningless. This could have no effect on the regular jury.

Involved in the complaint about the jury being allowed to go home is the assertion that once the jury had been given the case to decide, they were then in the process of deliberation and neither the court nor attorneys could agree to allow them to separate. We think this view seeks to impose a broad definition of deliberation not intended by the statute or compelled by law.

Deliberation in the context of the jury function means that a properly formed jury, comprised of the number of qualified persons required by law, are within the secrecy of the jury room analyzing, discussing and weighing the evidence which they have heard with a view to reaching a verdict based upon the law applicable to the facts of the case as they find them to be. Such deliberation can only be carried on by the lawful number of jurors in the presence of all. When the trial judge adjourns court and allows the jury to separate, deliberation within the meaning of T.C.A. § 40-2528 ceases, and does not resume until the jurors are reassembled in the proper setting and context of the trial process. We, therefore, hold that the jury was not allowed to separate while deliberating as claimed by the Appellant.

Further, the trial judge assembled the jury the following morning and inquired of them whether anyone had attempted to interfere with them or influence their judgment. Each responded that they had not been approached by anyone. Even if the jury had been erroneously allowed to separate, there is no showing that this affected the verdict of the jury. Unless some prejudice is shown by the separation of the jury any error therein is harmless. Wheeler v. State, 539 S.W.2d 812 (Tenn.Cr.App.1976); Wade v. State, 524 S.W.2d 497 (Tenn.Cr.App.1975).

The Appellant asserts that some of the jurors were seen conversing together as they left the courtroom after court was recessed on the evening in question and that one juror was seen talking to the Assistant District Attorney General who prosecuted the case. However, there was no showing that the jurors were discussing the case and the claim concerning the Assistant District Attorney General and a juror is not supported by the record.

The Appellant further complains in this regard that the trial judge, by allowing the jurors to go home, deprived him of having a jury which was unable to reach a verdict. He asserts that noises from the jury room indicated a hung jury and the trial judge, by bringing them into the courtroom, interrupted the jury and then they were ultimately able to reach a verdict of guilty. There is nothing in this record to indicate the jury could not reach a verdict. The foreman requested additional time to deliberate prior to the jury being allowed to go home and it was his request, on behalf of the jury, that they be allowed to return the following day for further deliberation. Unless the trial judge’s actions cause a jury to reach a verdict in such a manner that it is patently not their free and untrammeled verdict, a new trial will not be granted. See Kersey v. State, 525 S.W.2d 139 (Tenn.1975); Weston v. State, 506 S.W.2d 946 (Tenn.Cr.App.1973).

The Appellant further complains that the jury was allowed to assemble and deliberate without court being formally opened.

It appears that on the morning of December 15, 1976, the jurors returned to the courthouse and a deputy sheriff who was in charge of the jury put them in the jury room and gave them the charge of the court and the indictment. The Appellant’s attorney alerted the Assistant District Attorney General to this who required the officer to retrieve the papers. The judge then came into the courtroom and court was formally opened. The jury was then questioned as to whether anyone had attempted to contact or influence them, and they were then sent, along with the proper papers in the case, to deliberate. The record reveals that the presence of the jury in the jury room with the papers prior to the opening of court was for only about three (3) minutes. We do not see that this prejudiced the Appellant.

In the overall context of the issue, we see nothing to show any jury misconduct which would overthrow the presumption that the jury acted properly. Steadman v. State, 199 Tenn. 66, 282 S.W.2d 777 (1955).

The Appellant claims that he should be granted a new trial because the State did not reveal to him a picture which showed the scar on the woman’s chest which resulted from the cut sustained by her. The Appellant asserts that this prejudiced him in his defense of this case because the photograph was important to contradict the testimony concerning the nature, method and extent of the wound. The picture sought was not used by the State because it did not show the face of the woman and the Asst. District Attorney General felt it was not sufficient for identification purposes.

In the overall context of this case, we fail to see how the absence of this picture prejudiced the Appellant. The medical proof shows that a wound was inflicted and the record reveals that a scar, although not exhibited to the jury, was on the woman’s chest. The Appellant insisted throughout the case that he did not rape the woman and that he did not see her or go about her on the day of this offense. Furthermore, if this evidence was vital to his defense, the best evidence of the location of the scar was present on the witness stand for several hours being examined by the attorneys. Counsel could have asked the jury to view the scar in its actual setting.

' The complaint about the alleged self-serving statement by the prosecutrix to a witness and the charge of the trial court concerning witnesses before the grand jury is not briefed on appeal and are waived. However, we see no error, in either of these complaints.

The judgment of the trial court is affirmed.

DUNCAN and TATUM, JJ., concur.


text:
    Joseph PRIGMORE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 20, 1977.

      Harold R. Stewart, Knoxville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., James R. Dedrick and William H. Crabtree, Asst. Dist. Attys. Gen., Knoxville, for appellee.
   OPINION

BYERS, Judge.

Appellant was found guilty of larceny from the person and sentenced to serve not less than three (3) years nor more than seven (7) years in the penitentiary.

It is Appellant’s contention that the evidence preponderates against the verdict, that the victim’s testimony created as a matter of law a reasonable doubt as to whether any larceny was from her person, that the court erred in not charging the jury on the lesser included offenses of larceny and petit larceny and the court erred in halting defense attorney’s final argument to the jury on the lesser included offense of petit larceny.

The judgment of the trial court is affirmed.

The accredited evidence shows that Nana Johnson, a retiree, was sitting on a bus-stop bench in front of Isabella Towers in Knoxville. Her pocketbook was beside her with her left arm loosely over it. In her pocketbook was a one hundred seventy-six dollar ($176.00) social security check and other items worth approximately fifty dollars ($50.00). As she approached the bench, the only person she saw near her was a man seated on a wall behind the bus stop who wore an orange cap and jacket. She next saw this man running up the street with her pocketbook. She had not felt it being removed. When she screamed, two (2) maintenance men saw this person running up the street. They chased him and although unable to catch him, they positively identified Appellant as being the man they chased. At one point they had almost caught Appellant when he pulled a gun on them. Another time, one of the maintenance men captured Appellant and was waiting for the police when a crowd gathered. Fearing trouble, the maintenance man released Appellant. Approximately fifteen (15) minutes later, Appellant was brought to the victim by police. The victim could not identify Appellant as the man who took the purse. The maintenance men did identify Appellant although he had on different clothes. One maintenance man testified that he saw Appellant approximately fifteen (15) minutes before the crime and also saw Appellant sitting on the wall. James Foster, a city recreation official and part-time police officer, was with Appellant when the police picked him up to take him to the victim. Foster testified that Appellant was not wearing an orange cap and/or shirt as the victim and maintenance men testified. Appellant appeared dirty and disheveled. He told Foster that some men had jumped him and tried to hit him with a van. They flagged down a police officer and told him this story. The officer left and when he returned he took Appellant to Isabella Towers where Appellant was identified by the maintenance men. The purse and its contents were recovered by the police.

Appellant asserted an alibi defense and attacked the identification testimony by the State’s witnesses.

The issues in this case hinge on whether a woman who is sitting on a public bench with her purse by her side with her arm extended over it has the purse on her person. We have no difficulty in finding that the purse was on her person. It would be a strained interpretation of facts to hold otherwise. There is absolutely no conflict in the evidence describing the manner in which the woman was sitting with her purse by her side. The purse was within the area between her arm and body, a natural and normal place for it to be.

Even though larceny is an element in a charge of larceny from the person, it does not follow that in each case in which a person is charged with larceny from the person, the trial judge is required to instruct the jury on the offenses of grand and petit larceny. As said in English v. State, 219 Tenn. 568, 580, 411 S.W.2d 702, 708 (1966), “ . . . under the facts herein there was no foundation for any intermediate grade, and thus the charge as given is correct.”

It follows, also, that the court was not in error in prohibiting Appellant from arguing these offenses to the jury because there was no evidence on which to base such argument.

Appellant has failed to demonstrate that the evidence preponderates against the verdict. State v. Grace, 493 S.W.2d 474 (Tenn.1973).

Larceny from the person is described in T.C.A. § 39-4206, the pertinent part for our purposes being (2)(a) which is as follows:

(2) . . .
(a) The theft must be from the person; it is not sufficient that the property be merely in the presence of the person from whom it was taken.

If the theft is not from the person and is done surreptitiously, then it falls within the ordinary forms of larceny. This statute creates a separate and distinct form of larceny to cover those cases where the ordinary forms of larceny do not apply, and indicates a legislative intent to recognize that the taking from a person is to be punished in a manner different from larceny. Although the punishment is the same as the punishment for grand larceny, it is greater than the punishment for petit larceny.

Although larceny is an essential ingredient of this offense, the offense is distinguished from the other forms of larceny because the value of the property taken is not at issue. English v. State, supra.

As previously noted, there was no dispute on the evidence given by the woman describing where the purse was located, which we find was on her person. Neither is there conflict in the testimony that the purse was removed from its location without her knowledge and without force. Therefore, this offense falls clearly within the statutory definition of larceny from the person. There is no contrary evidence to refute this conclusion.

Appellant claims the identification of him as the perpetrator of the crime is insufficient and that his claim of alibi overcomes the State’s witnesses thereon. The issue of identification is a question to be determined by the jury. Maxwell v. State, 501 S.W.2d 577 (Tenn.Crim.App.1973). Likewise, the question of an alibi is for the jury to determine. Teague v. State, 529 S.W.2d 734 (Tenn.Crim.App.1975). The jury has resolved these questions adversely to the Appellant and the evidence supports their finding.

The assignments of error raised by Appellant on appeal are overruled and the judgment of the trial court is affirmed.

WALKER and TATUM, JJ., concur.


author: BYERS, Judge. GALBREATH,

text:
    Jacob BETHANY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 2, 1978.
    Certiorari Denied by Supreme Court May 1, 1978.

      J. Klyne Lauderback, Bristol, for appellant.
    Brooks McLemore, Jr., State’s Atty. Gen., Robert L. Jolley, Jr., Asst. State’s Atty. Gen., Nashville, R. Jerry Beck, Michael May, Asst. Dist. Attys. Gen., Blountville, for appellee.
   OPINION

BYERS, Judge.

The Appellant was convicted on six charges of committing a crime against nature (fellatio) and sentenced to serve not less than ten (10) years nor more than fifteen (15) years in the penitentiary on each count. Three of the sentences were ordered to be served consecutively and three concurrently which effected a sentence of not less than thirty (30) nor more than forty-five (45) years.

The Appellant, a scoutmaster, engaged in acts of fellatio with six of seven young boys he took on a camp-out. Two of these boys were older than twelve and the rest were twelve or younger. Three or four of these boys committed acts of fellatio upon each other. One of the boys did not engage in any act of fellatio with anyone.

The Appellant has assigned six errors. Two of the errors complain of the court’s refusal to give requested charges to the jury; one says the court should have declared a mistrial because of the State’s argument to the jury, their questioning of a witness and the bringing of several of the boys back into the courtroom for this witness to identify; two of the assignments attack the sufficiency of the evidence, particularly claiming that there is no corroboration of accomplice testimony to support the verdict; and, one assignment says the trial court erred in not running all the sentences concurrently.

The judgments are affirmed.

The trial judge refused to charge the special request submitted by the Appellant because he had covered these matters in his general charge to the jury. We have examined these requests and the charge given by the trial judge and agree that he accurately charged the law. There was no requirement, therefore, that he give the charges requested. Bostick v. State, 210 Tenn. 620, 360 S.W.2d 472 (1962). Additionally, one of the charges sought to have the court instruct the jury that all of the boys, as a matter of law, were accomplices in all cases if the act of fellatio was committed on them as alleged. This was not an accurate statement of the law in this case and the trial judge was not required to give the charge. Raine v. State, 143 Tenn. 168, 226 S.W. 189 (1920).

The Appellant complains because the Assistant District Attorney General stated that a witness had been mistaken in the identification of one of the boys who was on the camp-out. The evidence showed some confusion by the witness on the identification of one of the boys who was on the camp-out. The argument by the prosecution to the jury was supported by the evidence and was thus proper. The questioning of the witness, which is another basis for the mistrial motion, was to clear up the confusion by the witness on the identification of the boy as was the bringing of the boys back into the courtroom. This was not improper, and the trial judge properly denied the motion for a mistrial.

The Appellant’s most strenuous complaint is a claim that each of the young boys involved in these separate charges were accomplices in all of the offenses and that no independent evidence was introduced to corroborate their testimony.

The Appellant relies upon Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811 (1959), and Boulton v. State, 214 Tenn. 94, 377 S.W.2d 936 (1964). In response to this, the State says that T.C.A. § 39-606 has changed the rule of Sherrill which holds that a participant in a crime against nature is an accomplice and further says that, even if this rule has not been changed, there is sufficient corroborative evidence of the accomplices’ testimony to support the verdict.

We do not agree with the State that T.C.A. § 39-606 has changed the Sherrill rule. However, we think the facts in the case before us are materially different from the facts in Sherrill and Boulton, supra, and find that there is sufficient corroboration of the alleged accomplices’ testimony to support the verdict of the jury.

The portion of T.C.A. § 39-606 which the State insists changed the Sherrill rule is an amendment to that statute passed by the Tennessee Legislature in 1969 and is as follows:

“Any male or female under the age of twelve (12) years who shall be unlawfully sexually molested or fondled under the provisions of this section is declared to be not an accomplice of the person charged with the violation of this section.”

The State says that the act should be construed in pari-materia with T.C.A. § 39-707 because they construe T.C.A. § 39-606 to have the general purpose of establishing that a child under twelve is not an accomplice in any sexually related offense in which he participates. Although this state has adopted the general rule that statutes relating to the same subject or having the same general purpose shall be construed in pari-materia, Gates v. Long, 172 Tenn. 471, 113 S.W.2d 388 (1938), we do not think that the amended portion of T.C.A. § 39-606 falls within the same subject, or has the same general purpose, as T.C.A. § 39-707, crimes against nature.

The amendment to T.C.A. § 39-606 deals with a specific subject — assault and battery upon a female under the age of twelve with the intent to unlawfully sexually molest or fondle her, and assault and battery upon any male under the age of twelve years with intent to unlawfully sexually fondle him. T.C.A. § 39-707, on the other hand, proscribes an act which may be committed by adults with other adults or by adults with children. To construe these acts in pari-materia would be a strained and unintended construction.

Even though we do not apply T.C.A. § 39-606 in this case on the question of the accomplices’ testimony, the Appellant’s reliance on Sherrill and Boulton is not supported by the facts in this case. In Sherrill the defendant was prosecuted for a single act performed by two boys. In Boulton the defendant was prosecuted for a single act performed against one boy. In each of those cases, the only evidence presented was the testimony of the participants in the crime.

In the case sub judice, the Appellant was prosecuted for six separate acts of fellatio committed against six different boys. The evidence presented in the case came from each of the boys concerning the commission of the act against him individually and the testimony of the boys describing the commission of the offense by the Appellant on other boys in the group.

The question of who determines whether a person is an accomplice depends upon the facts of each case. When the facts of a witness’ participation in a crime, are clear and undisputed it is a question of law for the court to decide. When such facts are in dispute or susceptible of an inference that a witness may or may not be an accomplice, it then becomes a question of fact for the jury to decide. Conner v. State, 531 S.W.2d 119 (Tenn.Cr.App.1975); Abbott v. State, 508 S.W.2d 801 (Tenn.Cr.App.1974); Ripley v. State, 189 Tenn. 681, 227 S.W.2d 26 (1950).

In Sherrill and Boulton, the witnesses were accomplices as a matter of law. In the case before us, each witness who testified about the act committed by the Appellant against him was an accomplice in that case as a matter of law. However, whether the witnesses upon whom the Appellant committed fellatio were accomplices in the separate acts of fellatio upon the other boys is susceptible of an inference that they were not, and it thus became a question for the jury to determine under a proper charge by the trial judge.

In determining if a witness is an accomplice, the jury must determine whether such witness knowingly, voluntarily, and with common intent united with the principal offender to commit the offense or offenses under investigation. Monts v. State, 214 Tenn. 171, 379 S.W.2d 34 (1964); Conner v.

If the jury found that each of the boys were accomplices in each of the offenses, before the Appellant could be convicted on their testimony alone, there would have had to have been some testimony independently given which corroborated the testimony of the accomplices and which showed that a crime had been committed and the connection of the accused therewith. Hawkins v. State, 4 Tenn.Cr.App. 121, 469 S.W.2d 515 (1971). If, on the other hand, the jury found each boy not to be an accomplice in the criminal episode involving the other boys, the jury could give their testimony concerning the act not involving them the same weight as the testimony of any other witness, without a requirement that it be corroborated.

The trial judge gave a very good and complete charge to the jury in this case on the applicable law on the issue of whether any of the witnesses were or were not accomplices and on how to weigh their testimony upon determining whether they were or were not accomplices. We are unable to say, of course, how the jury resolved the issue. If they found that the boys were not accomplices, the record in this case supports that finding. On the other hand, if they found that the boys were accomplices, the record in this case sufficiently corroborates their testimony to sustain the conviction. Hicks v. State, 126 Tenn. 359,149 S.W. 1055 (1912).

The general rule is that there must be some fact testified to, entirely independent of an accomplice’s testimony which, taken by itself, leads to an inference, not only that a crime has been committed, but that the accused is implicated therein. State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460 (1963). Only slight circumstances may be sufficient to furnish the necessary corroboration. Garton v. State, 206 Tenn. 79, 332 S.W.2d 169 (1960); Alexander v. State, 190 Tenn. 260, 229 S.W.2d 331 (1950).

We reach the conclusion that there was sufficient corroborating evidence from the testimony of a seventh boy who was present when these criminal offenses were committed. The Appellant did not commit any offense against this boy nor did this boy commit any offense against the Appellant or any of the other boys. The record clearly shows that he refused to participate in any criminal episode. This boy testified that he saw the Appellant commit fellatio upon four of the six boys upon whom the offense was committed. Clearly, his testimony corroborated the testimony of the witnesses as to these four offenses.

We are of the opinion that the testimony of the witness, clearly not an accomplice in the offenses, that he saw the Appellant commit four of the offenses, could be considered as corroborating evidence by the jury in determining whether the Appellant had committed the other two offenses not observed by this witness.

With what we have said concerning the issue of the accomplices’ testimony it is apparent that the Appellant has failed to show that the trial court should have directed a verdict of acquittal. Taylor v. State, 2 Tenn.Cr.App. 459, 455 S.W.2d 168 (1970). Nor has he demonstrated that the evidence preponderates against the verdict of the jury. State v. Grace, 493 S.W.2d 474 (Tenn.1973).

We see no abuse of discretion on the part of the trial judge in not running all of the sentences in this case concurrently. The trial judge set forth his reasons for running a portion of the sentences consecutively. He found that the Appellant formed an organization of small boys for the purposes of engaging them in homosexual activity and that he purchased for them alcoholic beverages and tobacco. The trial judge concluded that the Appellant did not precisely fit into any of the guidelines of Gray v. State, 538 S.W.2d 391 (Tenn.1976). However, he concluded, based upon the medical reports which he was asked to consider in the sentencing process, and upon the facts in the case, that the Appellant was closely identified with the description of a dangerous, mentally abnormal person and a dangerous offender. The trial judge was of the opinion that the Appellant was dangerous to young boys and extended incarceration was required to protect them from the Appellant’s likelihood of committing further similar crimes.

We do not think Gray intended to precise- ■ ly define every possible factual situation which would authorize consecutive sentences. The guidelines therein set out are sufficiently broad to encompass the factual situation in this case. The trial court complied with the Gray requirements and we affirm his judgment thereon.

GALBREATH and DUNCAN, JJ., concur.

GALBREATH,

Judge, concurring in part and dissenting in part..

I must, in part, dissent. The evidence established that the defendant, a scoutmaster, engaged in numerous acts of fellatio with all but one of seven sub-teenage and teenage boys he took on an overnight camp-out. Although it appears that all of the acts were voluntary, the children under the age of twelve could not be deemed accomplices so as to require corroboration of their testimony under the rule set out in Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811 (1959). Appellant’s contention to the contrary, in my view, fails since T.C.A. § 39-606 specifically declares that any child under the age of twelve who is “unlawfully sexually molested or fondled ... is declared to be not an accomplice of the person charged . I would agree with the State’s contention, and thus am at odds with the majority’s view on this issue. While our crime against nature statute is much more general than the provisions of T.C.A. § 39-606, so general as a matter of fact that its limits have never been defined with exactitude (see Locke v. State, 501 S.W.2d 826 (1973)), still it is inescapable that the act of sexual deviation committed by the defendant included an assault and battery against male children including fondling. Those so victimized, under the law, cannot be considered accomplices.

As did the majority, I have carefully reviewed the evidence and all of the assignments pertaining thereto, as well as the charge of the court to the jury, and find them to be unmeritorious.

I would, however, sustain the appellant’s assignment of error to the action of the court in ordering three of the sentences to be served consecutively. The trial judge himself recognized that recent guidelines set down by our Supreme Court for the guidance of trial judges in determining how multiple sentences should be ordered served did not suggest consecutive sentences in this case. See Gray v. State, 538 S.W.2d 391 (Tenn.1976). Because of the loathsome nature of the crimes involved, it is apparent that the sensibilities of the trial judge lead him to go outside these guidelines. As he stated in the record:

I’ve heard all the evidence and considering all the guidelines and as I say this strictly doesn’t fall within any guideline set out by the Supreme Court that would authorize me to make consecutive sentences, however, I don’t think the Supreme Court intended that this defendant could commit one homosexual act on a child, then he could commit as many others as he pleased before he was brought to trial, and that there be no additional— —that there could be no additional punishment. I hope the Supreme Court did not mean that. I think this man is dangerous to young children. I think on the record I’ve heard that he is. I think that although he doesn’t qualify for the perhaps abnormality to the degree that the guidelines state that that guideline is also applicable.

The unfortunate nature of the criminal activity involved is such that it is generally a repetitive activity that may go on for months or even years before detection and prosecution. It might be that a practicing homosexual might have illicit relations with hundreds of willing partners before being made aware by public denouncement and prosecution just how serious an offense his sexual deviation has lead him to commit time and time again. It is to be supposed that now the defendant, apparently with no other criminal background, does know how serious may be the consequences if he repeats his crime. After ten or fifteen years of incarceration, the lesson should be painfully learned.

I agree with the trial judge that the appellant’s situation does not fit within the guidelines established by the Supreme Court:

Essentially, a consecutive sentence should be imposed only after a finding by the trial judge that confinement for such a term is necessary in order to protect the public from further criminal conduct by the defendant.
Types of offenders for which consecutive sentencing should be reserved may be classified as follows: (1) the persistent offender, defined as one who has previously been convicted of two felonies or of one felony and two misdemeanors committed at different times when he was over eighteen (18) years of age; (2) the professional criminal, one who has knowingly devoted himself to criminal acts as a major source of livelihood or who has substantial income or resources not shown to be derived from a source other than criminal activity; (3) the multiple offender, one whose record of criminal activity is extensive; (4) the dangerous mentally abnormal person, so declared by a competent psychiatrist who concludes as a result of a presentence investigation that the defendant’s criminal conduct has been characterized by a pattern of repetitive or compulsive behavior or by persistent aggressive behavior with heedless indifference to consequences, and (5) the dangerous offender . . . . Gray v. State, supra at p. 393.

A judge cannot disregard these guidelines, no matter how abhorrent he may personally view the non-violent criminal activity involved.

I would affirm the judgement but modify it to provide that all sentences be served concurrently.