author: TATUM, Judge.

text:
    James Earl WILLIAMS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 23, 1976.
    Denied by Supreme Court March 14,1977.

      Walker Gwinn, Memphis, for appellant.
    R. A. Ashley, Jr., Atty. Gen., William B. Hubbard, Asst. Atty. Gen., Nashville, Arthur T. Bennett, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

TATUM, Judge.

Appellant was convicted in Shelby County for the offenses of armed robbery and rape. He was sentenced to serve 35 years in the State Penitentiary in the rape case and 25 years in the robbery case. The two sentences were ordered to run concurrently.

We must affirm the first assignment of error. The Honorable Otis Higgs, Jr., Judge of Division IV of the Criminal Court of Shelby County, presided at appellant’s trial. Appellant was convicted on June 30, 1975, and he filed his motion for a new trial on July 23, 1975. The motion for a new trial was overruled by Judge Higgs on January 16, 1976. Judge Higgs resigned from office effective September 1, 1975. Judge Higgs’ resignation had been in effect more than 60 days when he overruled appellant’s motion for a new trial, therefore he had no judicial power to act on the motion. T.C.A.

§ 17-116 provides as follows:

“17-116. Powers after vacation of office. —Whenever any trial judge shall vacate his office for any cause whatsoever other than the death or permanent insanity of such judge, he shall have and retain, as to cases pending before him, the trial of which has begun prior to his vacation of office, all the powers in connection with said cases which he might have exercised therein, had such vacation of office not occurred, provided that his powers in this respect shall not extend beyond sixty (60) days from said date of such vacation of office. Provided, however, that as respects any judge who retired on or after February 11, 1970, and prior to April 25, 1973 such powers shall extend until June 30, 1973. Such powers shall especially include, but shall not be limited to, the right to render judgments, to hear and determine motions for new trial, to grant appeals and to approve bills of exceptions. Such powers may be exercised by such judge either within or without the geographical limits theretofore assigned by law to such judge.”

Under the above-quoted Statute and long-established practice in Tennessee, when an unsuccessful litigant seasonably files a motion for a new trial, the adverse jury verdict and judgment thereon is held in abeyance until the Judge who presided over the trial has approved the verdict of the jury by overruling the motion for a new trial and until his action is spread upon the minutes of the Court and signed by the Trial Judge. T.C.A. § 17-116 preserves the judicial powers of a Judge after vacating office for reasons other than death or permanent insanity. This extension of power is applicable only to cases tried before that Judge while in office and the power is preserved only for 60 days after the Judge vacates office. The State in its brief concedes that we must reverse this conviction. See also, McClain v. State, 186 Tenn. 401, 210 S.W.2d 680 (1948); Howard v. State, 217 Tenn. 556, 399 S.W.2d 738 (1966); Jackson v. Handle, 46 Tenn.App. 234, 327 S.W.2d 55 (1959). This Court has also followed this rule in other recent unreported cases.

Appellant urges that the Trial Judge erred in allowing Brenda Driskel to testify concerning another assault and robbery by appellant. It is necessary for us to discuss the testimony of the victim and Brenda Driskel before disposing of this assignment.

The victim testified that at about 6:30 P.M., on January 3, 1975, she was walking near the intersection of Vollentine and Decatur Streets in Memphis when she heard the footsteps of someone walking at a fast pace behind her. That person grabbed her from behind with one hand and with the other he held a knife to her face where it could be seen by her and he then held it to her throat. He threatened to kill her if she screamed.

This individual demanded money from the victim and he also demanded to know her age. She told him that she was 23 years of age. He got $18.00 from her. He then forced her into an alley where he raped her. The victim made a positive identification of the appellant as being the robber and rapist.

Brenda Driskel testified that on February 20, 1975, at about 7:35 P.M., she was walking from a grocery store on North Bellevue in Memphis at a point some 10 to 15 blocks from Vollentine and Decatur Streets or “within walking distance” from the scene of the above described crime. She heard someone walking at a fast pace behind her and a man grabbed her from behind around the neck with one hand and with the other hand he held the knife to her face. He asked her for her money and she gave him all that she had which was $1.00. She started “hollering and crying” and he threatened to kill her if she continued. He continued to walk her toward “a dark path, alley or something” and he likewise inquired of her as to her age. She was actually 19 years of age but she told him that she was only 16. When appellant learned her age, he released her but threatened to kill her if she looked at him.

After holding the knife to her face in her view, he lowered it and held it to her throat. She positively identified appellant as being the person who assaulted and robbed her and he was arrested shortly thereafter.

Appellant did not testify in his own behalf but introduced witnesses seeking to establish an alibi. There were no witnesses to the episode in the case sub judice other than the victim. The identification of the appellant was the principal issue in the trial of the case.

We have reviewed many cases discussing the question of the admissibility of evidence of other crimes than that for which the accused is on trial. The general rule is stated in Garroll v. State, 212 Tenn. 464, '370 S.W.2d 523, 529 (1963):

“The general principle to be collected from these, and other authorities, is that evidence of another crime or crimes than that charged in the indictment and for which defendant is on trial, is not admissible unless such evidence is relevant to prove his guilt of that crime. The test of relevancy is furnished not by law, but by logic and general experience (Thayer, Preliminary Treatise on Evidence (1898), 264-266). Morgan, Basic Problems of Evidence (1961), 183-194; Trautman, Logical or Legal Relevancy — A Conflict in Theory, 5 Vand.L.Rev. 385, 403-410. It is generally agreed that evidence of other crimes by defendant ist not admissible merely to prove his disposition to commit such a crime as that on trial; but such evidence is admissible when it is relevant to prove some other material issue on trial; for instance, when it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan for commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) the identity of defendant on trial. Morgan, supra; Harris v. State, supra [189 Tenn. 635, 227 S.W.2d 8]; Woodruff v. State, supra [164 Tenn. 530, 51 S.W.2d 843].

The question of the admissibility of evidence of other crimes to prove defendant’s guilt of the crime on trial underwent elaborate consideration in Mays v. State, supra [145 Tenn. 118, 238 S.W. 1096]. There, the Court said:

‘Evidence which is relevant to defendant’s guilt is not inadmissible because it proves or tends to prove him guilty of another and distinct crime. It frequently happens that two distinct offenses are so inseparably connected that the proof of one necessarily involves proving the other, and in such a case on a prosecution for one evidence proving it cannot be excluded because it also proves the other. Evidence of another and distinct crime is admissible if it was committed as a part of the same transaction ánd fbrmá' p'art df the res gestae.
sje * * * ⅜ sf:
‘It is also admissible, where the crime charge[d] is a part of a plan or system of criminal action, to offer evidence of other crimes near to it in time and of similar character, to show the knowledge and intent of the accused, and that the crime with which he is charged was not the result of accident or inadvertence.’ ” [Emphasis supplied]

In Harris v. State, 189 Tenn. 635, 227 S.W.2d 8, 11 (1950), the Supreme Court observed:

“It may be, however, that a particular strategem or method has such unusual particularities that reasonable men can consider that it would not likely be employed by different persons. Wrather v. State, supra [179 Tenn. 666, 169 S.W.2d 854]. Many men commit murder, but Jack the Ripper used his knife in a manner so peculiar that when his crimes were viewed together there could be little doubt that they were committed by the same man. Merely the fact, however, that a series of such crimes may be committed with a knife will not render them unusual enough to identify the perpetrator of one as the perpetrator of the others. Sometimes to establish the identity of a sexual pervert, evidence of an unusual perversion has been received, but this is no more than the application of a corollary of the rule above stated, that a defendant’s methods in the commission of a crime may be sufficiently unusual to amount to a signature. Barnett v. State, 104 Ohio St. 298, 135 N.E. 647, 27 A.L.R. 351.
This court has said that where the sole question is the identity of the accused, the State may properly be permitted to cover a wide range in seeking proof of other crimes which cannot be reasonably believed to have been committed except by the same criminal who committed the offense under investigation, and thereby establish the identity of the person responsible. Warren v. State, supra [178 Tenn. 157, 156 S.W.2d 416].”

In Caruthers v. State, 219 Tenn. 21, 406 S.W.2d 159, 161-162 (1966), the Supreme Court held:

“As stated before, the defendant attempted to raise the defense of alibi. In raising this defense, the defendant naturally questions the identification by Mr. Coffelt of the defendant as the man who robbed him. Thus, the question of identity constitutes the crucial point in this case, and the testimony of Mrs. Head was introduced to support Mr. Coffelt’s identification of the defendant as the man who committed the offense involved in this case. It therefore is apparent that the testimony of Mrs. Head was properly admitted by the trial court if there was ‘clear and convincing’ evidence that the defendant was the person who committed the prior crime. The following quotation from Wrather v. State, supra, sets out the test to be applied to determine admissibility, as follows:
‘(4) Without going so far as to hold, with some of the Courts, that the proof of the independent crime must be ‘beyond a reasonable doubt,’ we approve the rule that, to render evidence of an independent crime admissible, the proof of its commission, and of the connection of the accused on trial therewith, must be not ‘vague and uncertain,’ but clear and convincing. Obviously, an absolute essential is that (1) a former crime has been committed, and (2) committed by the identical person on trial. Only thus can identification, or other proof of guilt, of the accused in the pending case be aided by evidence of the independent crime. And this limitation upon admissibility applies equally to all the exceptions to the general rule excluding evidence of other crimes, whether introduced to prove identity, or for any other purpose.’ ”

In a further discussion of this rule in Warren v. State, 178 Tenn. 157, 156 S.W.2d 416 (1941), the Supreme Court held that before the rule could be applied, two conditions must be met: (1) the proof must show similarity in the circumstances of the commission of the two offenses so as to afford evidence of the identity of the offender, and (2) there must be a genuine issue as to the identity of the accused. Such evidence should be admitted with caution and should never be admitted unless there are peculiar circumstances and details common to both offenses and the identity of the accused has been otherwise clearly made out. Evidence of other offenses should never be admitted under any theory when it serves only to show that the accused has committed other crimes.

For other discussions of the rule permitting evidence of other crimes to prove identification see, Wrather v. State, 179 Tenn. 666, 169 S.W.2d 854 (1943); Snowball v. State, 477 S.W.2d 240 (Tenn.Cr.App.1971); Pruitt v. State, 3 Tenn.Cr.App. 256, 460 S.W.2d 385 (1970).

We think that the testimony of Brenda Driskel meets all of the tests for admissibility. Both offenses took place in the same general neighborhood and the time element was not remote. Both victims were walking down a street and were overtaken by a person walking at a fast pace from the rear. He grabbed each of them from the rear and brandished a knife first in their face and then at their neck. He used the knife in the same manner in both offenses. He took money from both of them before attempting any rape. He inquired of them both as to their age. He asked both where they lived. He threatened to kill both if they cried out. He did not want either to look at him. The testimony of one victim could be substituted for the testimony of the other up until the time inquiry was made as to age. The numerous similarities of detail in these two episodes meets the “signature” requirement. The modus operandi was the same in both instances. Evidence that appellant committed the robbery and assault on Ms. Driskel is “clear and convincing”. We hold that the testimony of Brenda Driskel was admissible and Assignment III is overruled.

Appellant next complains that the evidence preponderates against the verdict of the jury and in favor of his innocence. We have reviewed the evidence and we do not find that it preponderates against appellant’s guilt and in favor of his innocence and this assignment is overruled. State v. Grace, 493 S.W.2d 474 (Tenn.1973); McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963); Greer v. State, 539 S.W.2d 855 (Tenn.Cr.App.1976).

Under Assignment I, we reverse and remand for a new trial.

WALKER, P. J., and DWYER, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Harry Allan ROCKWELL, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 13, 1976.

      Richard W. Pectol, Johnson City, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Robert B. Littleton, Asst. Atty. Gen., Nashville, S. E. Pat Widener, Asst. Dist. Atty. Gen., Johnson City, for appellee.
   OPINION

TATUM, Judge.

Appellant was convicted of creating a false impression of his death by a forged death certificate. The Washington County Jury fixed his punishment at not less than one nor more than five years in the State Penitentiary. We affirm.

The State’s principal witness, Mrs. Wanda Wards, testified to the following facts: About the 5th of July, 1974, appellant requested this witness to fill out a false cer-tifieate of his death. He told her that he was charged with grand larceny in Tampa, Florida and needed the death certificate to convince the Florida Court of his death so that these charges would be dismissed.

Later, appellant brought the witness a blank Death Certificate and a Mortician’s Report. The witness enlisted the services of her sister, who was a typist, to type the certificate. Then the witness signed the names of persons purporting to be the physician, medical examiner, funeral director and others whose signatures are required. The witness did not know how to fill out the mortician’s portion of the document, so she and her sister borrowed appellant’s car and visited a funeral home in order to procure this information. They also procured the license number assigned to that funeral home to be placed on this document.

After completing the certificate, she gave it to appellant. The State’s evidence established that this certificate was registered with the Tennessee Department of Public Health, Division of Vital Statistics. Appellant later told her that the charges against him in Florida had been dismissed.

She further testified that she and appellant intended to establish an illegal business of selling forged death certificates to persons charged with crime if this venture had been successful.

Appellant testified that he knew Wanda Wards by sight, but was not acquainted with her and had never had a conversation with her until after “he was supposed to be dead”. He testified that at the time Wanda Wards said that he contacted her and subsequent thereto, he was with his girlfriend, Cathy Williams, in Savannah, Tennessee, and later in Atlanta, Georgia. Cathy Williams supported his testimony. He denied any knowledge of any of the matters which were the subject of Mrs. Wards’ testimony.

We will first consider the question as to whether the testimony of Mrs. Wards is corroborated. Appellant in an excellent brief, urges that it is not. Mrs. Wards was definitely an accomplice. The rule requiring corroboration of the testimony of an accomplice to sustain a conviction is well settled in Tennessee. It is set out in Uaw-kins v. State, 4 Tenn.Crim.App. 121, 469 S.W.2d 515, 520 (1971):

“. . . The rule, simply stated, is that there must be some fact testified to, entirely independent of the accomplice’s testimony, which, taken by itself, leads to the inference, not only that a crime has been committed, but also that the defendant is implicated in it; and this independent corroborative testimony must also include some fact establishing the defendant’s identity. State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460; Boulton v. State, 214 Tenn. 94, 377 S.W.2d 936. This corroborative evidence may be direct or entirely circumstantial, and it need not be adequate, in and of itself, to support a conviction; it is sufficient to meet the requirements of the rule if it fairly and legitimately tends to connect the defendant with the commission of the crime charged. Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811. It is not necessary that the corroboration extend to every part of the accomplice’s evidence. The corroboration need not be conclusive, but it is sufficient if this evidence, of itself, tends to connect the defendant with the commission of the offense, although the evidence be slight and entitled, when standing alone, to but little consideration. Stanley v. State, 189 Tenn. 110, 222 S.W.2d 384; Binkley v. State, 1 Tenn.Cr. App. 214, 434 S.W.2d 336.
‘The entire conduct of the accused may be looked to for the corroborating circumstances; and if, from those circumstances, the crime may fairly be inferred, the corroboration is sufficient. See 23 C.J.S. Criminal Law § 812(4).’ Binkley v. State, supra.
The quantum of evidence sufficient to corroborate the testimony of an accomplice is for the determination of the jury. From the facts proved in evidence the jury is entitled to draw reasonable inferences, and this Court may not substitute its judgment or inferences for those of the jury. Stanley v. State, supra; Binkley v. State, supra.”

See also, Monts v. State, 214 Tenn. 171, 379 S.W.2d 34 (1964); Henley v. State, 489 S.W.2d 53 (Tenn.Cr.App.1972); Hawkins v. State, 4 Tenn.Cr.App. 121, 469 S.W.2d 515 (1971).

We find sufficient corroboration. Mrs. Wards testified that she gave the forged document to appellant and did not see it again. It was ultimately recorded in the Department of Public Health, Division of Vital Statistics. Appellant testified that he had not conversed with Mrs. Wards but she testified that he told her that he needed this certificate because he was indicted in Florida. When he testified, he admitted that he was under indictment in Florida. Further, the certificate itself accurately bore appellant’s date and place of birth, social security number, names and addresses of his parents (including his mother’s maiden name) and other biographical information. Mrs. Wards testified that appellant furnished her with this correct information.

All of this corroborates that a crime was committed and that the appellant was implicated in it. The quantum of the corroborating evidence is a question for the jury. This assignment is overruled.

Appellant next insists that the evidence preponderates against the verdict of guilty and in favor of his innocence. The guilty verdict approved by the Trial Judge removes appellant’s presumption of innocence and clothes him in a presumption of guilt. The burden is upon him to show on appeal that the evidence preponderates against the verdict and in favor of his innocence. Sikes v. State, 524 S.W.2d 483 (Tenn.1975); McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). We do not find that the evidence preponderates against the verdict of guilty and in favor of appellant’s innocence. This assignment is overruled.

Appellant says that there was a material variance between the charge as stated in the indictment and the proof introduced at trial. The indictment charged that the appellant and Wanda Wards:

“willfully, maliciously and feloniously falsely create the impression that HARRY ALLEN ROCKWELL had become deceased, to-wit: did make a forged death certificate and did forge said death certificate to the prejudice of the rights of Charles DeWitt, M.D., C. L. Pearson, M.E., Martha Haun, John Fortner, and William O. Debusk and with the intent to defraud the State of Tennessee, Department of Vital Statistics, the said death certificate being in the words and figures as follows: (see second page), said making and forging and false impression being contrary to Section 39-1947, Tennessee Code Annotated, and against the peace and dignity of the State of Tennessee.”

Appellant argues that the essence of the indictment was to charge him with forgery of a death certificate and that the State’s evidence clearly established that the forgery was committed by Wanda Wards.

A fair reading of the indictment discloses that it charged appellant and Wanda Wards with falsely creating the impression that Harry Allen Rockwell had become deceased and that they forged a death certificate to accomplish this end. Appellant says that he was not a principal because he did not commit the forgeries. The State says he is an aider and abettor and punishable as a principal under T.C.A. § 39-109.

At common law, there were four different degrees of guilt. There were principals in the first degree; who were the actors and absolute perpetrators of the crime. There were principals in the second degree. They were the persons who were present, aiding and abetting in the perpetration of the crime. The principal in the second degree did not have to be within sight or hearing of the fact; but he could be constructively present, as where one commits a robbery and another watches or guards at a convenient distance. Finally, there were accessories before the fact and accessories after the fact. Accessories were not present either actually or constructively at the time the offense was committed but concerned themselves therein either before or after the offense was committed. Pierce v. State, 130 Tenn. 24, 168 S.W. 851 (1914).

The purpose and effect of T.C.A. § 39-109 was to abolish the distinction between principals in the first degree and principals in the second degree. Under this Code Section, both are treated identically. T.C.A. § 39-107 defines accessory before the fact to be any person who shall feloni-ously move, incite, counsel, hire, command or procure any other person to commit a felony. T.C.A. § 39-108 provides that accessories before the fact should be deemed principal offenders and punished as such. The common law distinction as to accessories after the fact remains.

Appellant was indicted under T.C.A. § 39-1916 for willfully and maliciously creating the impression that he was deceased. The State’s proof, which was accredited by the jury verdict, was that- appellant acted as principal actor in accomplishing the offense by causing the forged death certificate to be lodged with the Department of Health. The false information was then transmitted to the Florida Court. The offense was that of creating the false impression of appellant’s death, and the forgery of the certificate was an instrument to reach this end. Appellant also aided and abetted Mrs. Wards in committing the actual forgery. He procured the blank certificate for her and furnished her with the necessary information to complete the false certificate. He procured her services to commit the forgery. Various acts of appellant, taken alone, would have fallen within the common law definitions of three degrees of guilt: principal in the first and second degree and accessory before the fact. By statute, there is now no distinction between these three common law degrees; all are now deemed principals of the same degree. There is no material variance between the indictment and the proof. Assignment III is overruled.

Appellant next charges that he was indicted for forgery (T.C.A. § 39-1704) and for a violation of T.C.A. § 39-1916 in the same count of the indictment.

The defendant first contends that the indictment was erroneous because it stated that “T.C.A. § 39-1947” had been violated. This code section now deals with fraudulent use of credit cards. In October, 1975, Volume 7 of the Code was revised and T.C.A. § 39-1947 then became T.C.A. § 39-1916. When appellant was indicted, T.C.A. § 39-1947 charged the offense for which he was tried and convicted.

The indictment in this case was very inartfully drafted. It first charges the creating of the false impression of death in the language of T.C.A. § 39-1916. The indictment then charges forgery of the death certificate and that the defendants intended to defraud the State and to prejudice the rights of the various persons whose names were written on the certificate. The first portion of the indictment charges a violation of T.C.A. § 39-1916 using the language of the Statute. There follows a comma and the word “to-wit:” then the indictment continues to describe that the defendants forged the death certificate. The meaning of “to-wit” is: “that is to say; namely”. 1658 BLACK’S LAW DICTIONARY (4th ed. 1968). By use of the word “to-wit:” we think that the defendants were reasonably placed on notice that they were charged with a violation of T.C.A. § 39-1916 and that the death certificate was forged to accomplish the violation.

T.C.A. § 40-1802 provides as follows: “40-1802. Statement of offense.—The indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment; and in no case are such words as ‘force and arms’ or ‘contrary to the form of the statute’ necessary.”

We think that a person of common understanding would know that the grand jury intended to charge a violation of T.C.A. § 39-1916 only and that the use of the forged certificate was the means of committing this offense.

The language of part of the indictment—“to the prejudice of the rights of Charles DeWitt, M.D., C. L. Pearson, M.E., Martha Haun, John Fortner, and William 0. Debusk and with intent to defraud the State of Tennessee, Department of Vital Statistics” — is mere surplusage. See also, Cole v. State, 512 S.W.2d 598 (Tenn.Cr.App.1974); McCracken v. State, 489 S.W.2d 48 (Tenn.Cr.App.1972); Moore v. State, 1 Tenn.Crim.App. 190, 432 S.W.2d 684 (1968). This assignment is overruled.

Appellant next urges that T.C.A. § 39-1916 is so ambiguous and meaningless that it violates due process as guaranteed under Article I, Section 8 of the Tennessee Constitution and the 14th Amendment of the United States Constitution. In support of this proposition, appellant cites State v. Netto, 486 S.W.2d 725 (Tenn.1972). In that case, the Supreme Court, speaking through Justice McCanless, said:

“Both principles of law and considerations of policy govern the determination whether a statute fulfills its requirements under the due process clause of the Fourteenth Amendment. Courts are often prone, however, to adopt concise phrases from well written opinions which summarily embrace a given standard. It is said that a statute which either forbids or requires the doing of an act in term so vague ‘that men of common intelligence must necessarily guess at its meaning’ and differ as to its application violates the first essential of due process of law. Connally v. General Construction Company, 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 326 [1926]. The line of demarcation between what is lawful and what is unlawful cannot be left to conjecture. The statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. Roberts v. Clement, 252 F.Supp. 835 [D.C.Tenn. ’1966]’. ' No bhe should be required'at peril of life, liberty, or property to speculate as to the meaning of penal statutes. Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 [1939]. On the other hand, legislatures when adopting such statutes as the one in question are reluctant to define such conduct in specific terms; for to do so would encourage the circumvention of such laws through the varied schemes that ingenious persons may discover.” 486 S.W.2d 725, at 728.
* * * * * *
“The statute should be given a construction that will not render its terms useless. Tasco Developing & Bldg. Corp. v. Long, 212 Tenn. 96, 368 S.W.2d 65 [1963]. We are of opinion that the words of Section 30-2017, T.C.A., fulfill the requirements of reasonable certainty under the due process clause of the Fourteenth Amendment. The statute does so through the ‘. . use of ordinary terms to express ideas which find adequate usage and understanding. The use of common experience as a glossary is necessary to meet the practical demands of legislation.’ Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167 [1932], A lack of precision is not itself offensive to the requirements of due process. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 [1957],
The Constitution does not require impossible standards; all that is required is that the language convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 [1947].
‘The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.’ Colteti v. Ry., 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 [1972].
We agree with the holding of the Kentucky Court. Citizens who desire to obey the statute will have no difficulty in understanding it. Colten v. Common wealth (Ky.1971) 467 S.W.2d 374.” 486 S.W.2d 725, at 729-730.

T.C.A. § 39-1916 declares it to be a felony for any person “willfully and maliciously to falsely create the impression that said person has become deceased for any purpose”. (Emphasis supplied). We do not think that this Statute is unconstitutionally vague and overbroad. The language employed is couched in ordinary terms and it conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. We hold that the Statute is valid.

The judgment of the Criminal Court of Washington County is affirmed.

WALKER, P. J., and DUNCAN, J., concur.


text:
    Johnny Ray ROACH, Appellant, v. Robert MOORE, Warden, et al., Appellees.
    Court of Criminal Appeals of Tennessee.
    Jan. 12, 1977.
    Certiorari Denied by Supreme Court March 14, 1977.

      James N. Bryan, Jr., Nashville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Howard F. Douglass, Asst. Dist. Atty. Gen., Lexington, for appellees.
   OPINION

TATUM, Judge.

This is an appeal from the dismissal, after an evidentiary- he.aring, of the petition .for post-conviction relief (T.C.A. § 40-3801 et seq.) by the Circuit Court of Madison County-

The appellant and a co-defendant were convicted of burglary in the first degree and rape. The appellant was sentenced to imprisonment for not less than 5 nor more than 10 years for burglary and 21 years for rape. The appellant appealed to this Court where the burglary conviction was reversed and dismissed, and the rape conviction was affirmed.

The appellant then filed a petition for Writ of Error Coram Nobis, based on the discovery of a report of investigating police officers who arrived on the scene right after the crime was committed. The Trial Court dismissed this petition and this Court affirmed in Johnny Ray Roach v. State, (Tenn.Crim.App., filed at Jackson, June 30, 1976).

The appellant then filed his petition for post-conviction relief in the Circuit Court of Madison County and after an evidentiary hearing, the Trial Judge reduced the appellant’s sentence from 21 years to 10 years (the minimum allowable for rape) because in the principal trial, the jury was not instructed as to the allowable sentences for rape. The petition was otherwise overruled and the case is now before us for review.

The appellant first complains that the prosecution suppressed evidence favorable to him, thereby depriving him of due process, citing Brady v. Maryland, 373 U.S. 883, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967), and other cases of like import.

The appellant’s trial attorney requested information from the Madison County Sheriff’s Department and was told that there were no written statements or reports in the file. After the appellant’s conviction, it was determined that there was a report written by one of the investigating officers that had been misplaced in another file, stating among other things, that the victim had told the officers that the two men “attempted to rape her” and that “she succeeded in fighting them off”. The report also stated that the victim could “identify the subject with the long black hair”, and that she checked both doors before going to bed prior to the rape and that both were locked, “then unknown subjects had a key. . . ” (Emphasis supplied). The appellant says that this report was vital to his defense for the purpose of impeaching the testimony of the prosecutrix.

The statement that the two persons attempted to rape her and that, “she succeeded in fighting them off”, is not contradictory to the evidence in the case. The victim testified that she went to a neighbor’s house where she talked to the neighbor and his wife. She admitted that she did not tell them that she had been raped until some time later. Another witness, Mrs. Knight, testified that she talked with the victim after they had seen the officers and that the victim did not admit that the rape had been successful until they had talked for some time. The two neighbors of the victim, to whom she fled immediately after this episode, likewise testified that it was some time later before she admitted that she had been raped. Both neighbors and Mrs. Knight testified that the victim did not then identify her assailants by name.

The Trial Judge found that since “certain other evidence was presented to cast doubt upon the testimony of the prosecutrix, the officers report would not have changed the facts as testified to by Mrs. Harrell Cough-lin, neighbor of the prosecutrix.”

In Brady v. Maryland, supra, it was held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good or bad faith of the prosecution”. (Emphasis supplied).

We agree with the learned Trial Judge that this deputy sheriff’s report would not have been material to the defense. All of the matters contained in the report were clearly established upon the trial by disinterested witnesses (prosecutrix’s two neighbors and Mrs. Knight), and the great bulk of the material in the report was admitted by the prosecutrix. The material in the report would have been indirect circumstantial evidence of already established facts. It was only cumulative evidence of facts already overwhelmingly established. The loss of such evidence, even if suppressed, could not be said to constitute a denial of due process. The suppression was not deliberate.

In Cason v. State, 503 S.W.2d 206, 209 (Tenn.Cr.App.1973), Judge Russell of this Court, discussed the Brady case and other decisions of the United States Supreme Court at length and held in part:

“The general rule is that in order to overturn a conviction on suppression-of-evidence grounds, the evidence suppressed must have been material or probative. . 34 A.L.R.3d 16, at 38. While suppression of some impeaching evidence can be grounds for a new trial, if merely impeaching, cumulative or corroborating it will not ordinarily invalidate a verdict. To do that, the evidence must be of a character to raise a substantial likelihood that it would have affected the result if known at the trial. Ingram v. Peyton, (C.A. 4, 1966), 367 F.2d 933.
The case of United States v. Keogh, (C.A. 2,1968), 391 F.2d 138,34 A.L.R.3d 1, holds that relief might be given where the suppression was not deliberate and no request made and where hindsight disclosed that the defense could have put the evidence to not insignificant use, but in such a case the ‘standard of materiality must be considerably higher’.”

In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Court stated that a new trial is not required when the suppressed evidence is “possibly useful to the defense but not likely to have changed the verdict”, citing United States v. Keogh, 391 F.2d 138 (2nd Cir. 1968). We are convinced beyond a reasonable doubt that the Deputy Sheriff’s report would not have affected the verdict had it been in the hands of the appellant during the trial of the case. , Assignment I is overruled.

In Assignment II, the appellant says that his “warrantless arrest was illegal and violative of his Fourth and Fourteenth Amendment rights and therefore the fruits from the illegal arrest should have been excluded.” The appellant is specifically referring to photographs taken of him during a line-up after arrest. He says that these photographs were shown to the prosecutrix for identification purposes.

The facts are erroneously stated by the appellant in his brief. The appellant refers to the testimony of Deputy Irby Thomas in the post-conviction hearing and to the testimony of the prosecutrix in the principal trial of the case.

Deputy Thomas testified that he exhibited photographs to the prosecutrix at about 7:00 o’clock A.M., on October 14, the same morning that the crime was committed. He stated that immediately upon getting the call, he “went out and talked to her and then came back in and got some pictures from the office”. He said that there were no photographs made of the appellant that morning and that the photographs shown to prosecutrix were pictures that “Officer Jowers had”. The appellant was not arrested until 9:30 P.M., on October 14 and photographs of him were not made until the next day, October 15, at approximately 11:00 o’clock A.M. The prosecutrix testified that the photographs that she saw of the appellant the morning of October 14, “were extremely old pictures of him”, that he had changed his hair style and that, “none of the photographs that I saw of Johnny Roach looked like he looked when he came in my trailer”. There is no evidence that the photographs taken after the arrest were shown to the prosecutrix. According to the record, no “fruits” from the arrest were admitted in evidence or used to identify or convict the appellant in any manner. The burden of proof is on the appellant to show prejudice. Swaw v. State, 3 Tenn.Cr.App. 92, 457 S.W.2d 875 (1970). No prejudice is shown.

Moreover, the Trial Judge correctly found that the arresting officers were justified in making a warrantless arrest because the arresting officer had probable cause to believe that the appellant had committed a felony. Jones v. State, 161 Tenn. 370, 33 S.W.2d 59 (1930). This finding of the Trial Judge is to be given the weight of a jury verdict and is conclusive in this court unless we find that the evidence preponderates against the Trial Judge’s judgment. Graves v. State, 512 S.W.2d 603 (Tenn.Cr.App.1973); Myers v. State, 3 Tenn.Cr.App. 414, 462 S.W.2d 265 (1970). We do not find that the evidence preponderates against the Trial Court’s finding. Assignment II is overruled.

The appellant next complains that the “totality of the circumstances surrounding appellant’s line-up” violated his Fifth and Fourteenth Amendment rights. We do not agree.

The victim was shown “old photographs” of the appellant, at approximately 7:00 o’clock A.M. on October 14, about 45 minutes after she was raped. At the line-up, which was held about thirty hours later, the victim identified the appellant. The intruders who came into her trailer remained there long enough for both of them to rape her. There was light in the trailer from outside lighting which enabled her to see the appellant’s face clearly. His face was covered with clothing a portion of the time, but the clothing fell from around his face during the rape, when his face was in close proximity to the prosecutrix’s face. She knew the appellant, as he had formerly lived in the same trailer park where the victim lived. She described the appellant to the police officers, identifying him sufficiently to enable them to go to the Sheriff’s Office and immediately return with his photograph.

The appellant, in support of this assignment, cites Bennett v. State, 530 S.W.2d 511 (Tenn.1975). In that case, the Tennessee Supreme Court said:

“While we do not condemn the practice of using mug shots or other photographs during the course of the investigation of a criminal episode, we do not look with favor upon the practice of using such photographs immediately prior to a lineup or show-up”. 530 S.W.2d 511, at 515.

The photograph in this case was shown to the victim approximately 30 hours prior to the time of the line-up. This is not “immediately prior to a line-up” within the meaning of Bennett v. State, supra. In Bennett, only the photograph of the defendant was used, but in this case, several photographs of different persons were shown to the victim.

The appellant complains that he did not have the benefit of counsel at the line-up. The appellant was not entitled to counsel at a pre-indictment line-up as was involved in this case. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

The Trial Judge found that there was no showing that the identification of the appellant was in any way tainted and that the totality of the circumstances surrounding petitioner’s line-up did not violate the Fifth and Fourteenth Amendments. The evidence does not preponderate against the Trial Court’s judgment and we must overrule this assignment. Graves v. State, supra; Myers v. State, supra.

The fourth assignment of error is that, “The Trial Court’s refusal to grant the defense motion for a continuance abridges the appellant’s right to a fair and impartial trial and his right to compel the attendance of witnesses in his behalf and constitutes an abuse of discretion”.

He first complains of the Trial Judge’s refusal of a motion for a continuance made on the morning of the trial in order to procure a Dr. Pakis as a witness. This identical assignment was considered by this court on the appellant’s direct, appeal and decided against the appellant. Previously determined grounds for relief are not subject to review by post-conviction proceedings. Sloan v. State, ill S.W.2d 219 (Tenn.Cr.App.1971); Fuller v. State, 4 Tenn.Cr.App. 625, 475 S.W.2d 188 (1971).

The appellant also claims that the Trial Court erred in refusing to grant a continuance so that a Mr. Woods could be subpoenaed. First, there is no showing that the appellant moved for a continuance to procure the presence of Mr. Woods. The record did show that Mr. Woods was under subpoena, but if he did not appear, this fact is not shown in the Trial Record. In the appellant’s brief, it is stated that “[i]t is not known precisely what benefit defense counsel could have made of Mr. Woods’ testimony”. There is no allegation that Mr. Woods’ testimony was material for any purpose. There is no showing that the appellant sought the presence of Mr. Woods as a witness in the post-conviction hearing to determine the materiality of his testimony. There is no showing that the Trial Judge abused his discretion in failure to grant a continuance to procure the presence of Mr. Woods. We find no merit in this contention. Bivens v. State, 4 Tenn.Cr.App. 580, 474 S.W.2d 431 (1971).

Assignment IV is without merit and itt is overruled.

In Assignment V, the appellant says that he was denied a fair and impartial trial because the burglary indictment was presented to the jury and that he was thereby denied his Sixth Amendment right to a fair and impartial jury. As stated, the appellant was convicted, in the same trial of both burglary and rape. This court reversed and dismissed the burglary conviction.

Where several offenses are based upon the same transaction, the State cannot be required to elect to proceed upon the prosecution of one offense or the other. The appellant was not prejudiced by the fact that he was also charged with burglary and convicted thereof, even though the appellate court later reversed and dismissed the burglary conviction. Further, the appellant was not prejudiced in the rape case because the Trial Court failed to grant the appellant’s motion to dismiss the burglary case. See, Halquist v. State, 489 S.W.2d 88 (Tenn. Cr.App.1972). There is no merit in this assignment and it is overruled.

The appellant next claims that his sentence for rape should have been reduced to 3 years instead of 10 years. T.C.A. § 39-3702 prescribes the minimum imprisonment for rape to be 10 years. By Chapter 192, Section 5 of the Public Acts of 1973, the Legislature undertook to amend T.C.A. § 39-3702 by providing the minimum imprisonment for rape to be 3 years. The 1973 Act was declared unconstitutional by the Supreme Court in State v. Hailey, 505 S.W.2d 712 (Tenn.1974). In State v. Collins, 528 S.W.2d 814 (Tenn.1975), the Supreme Court declared that the minimum penalty for rape remained at 10 years. This assignment is overruled.-

We have considered all of the assignments on their merits. However, Assignments II, III and IV were waived when the appellant failed to present them for determination in his original appeal. These assignments could have been presented at that time. The Trial Judge’s actions of which complaint is made in these three assignments, were not brought to his attention at trial or on the Motion for a New Trial. They were not before this court on direct appeal, except for the matter of the motion for a continuance to procure Dr. Pakis as a witness. There is no showing which rebuts the presumption that these grounds for relief were waived under authority of T.C.A. § 40-3811, and Arthur v. State, 483 S.W.2d 95 (Tenn.1972).

The judgment of the Trial Court is affirmed.

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


author: REAVLEY, Justice.

text:
    SAN ANTONIO INDEPENDENT SCHOOL DISTRICT et al., Petitioners, v. CITY OF SAN ANTONIO, Respondent.
    No. B-5950.
    Supreme Court of Texas.
    Dec. 31, 1976.
    Rehearing Denied Jan. 26, 1977.
    Ted Butler, Dist. Atty., Robert C. Storey, Asst. Dist. Atty., Harvey L. Hardy, San Antonio, for petitioners.
    Crawford B. Reeder, City Atty., Matthews, Nowlin, MacFarlane & Barrett, Jon C. Wood, James D. Baskin, Jr., and W. Roger Wilson, San Antonio, for respondent.
   REAVLEY, Justice.

This is an attack upon certain charges which the City of San Antonio exacts for gas and electricity sales by its municipally owned and operated system. The attack is made by these public entities which are major purchasers of gas and electricity from the City: San Antonio Independent School District and 11 other independent school districts in Bexar County, Bexar County Hospital District, and Bexar County. They assert that the City may not legally include in their utility charges any amount for payment to the general fund of the City. They also attack the automatic “fuel adjustment” charges assessed to them due to the increases in the cost of gas purchased by the City. Alternatively, they attack the portion of the automatic fuel adjustment charges which goes to the general fund of the City. They do not attack the total rate structure or contend that the City obtains an unreasonable return from its investment in these utilities.

The trial court, after a non-jury trial at which the facts or testimony were all stipulated, held the payment to the City’s general fund to be an illegal tax upon these consumers and also held the fuel adjustment charges to be invalid for lack of action by the City Council to adopt each individual increase. These charges were declared invalid and their collection was enjoined, and the trial court further awarded a monetary judgment for recovery of all money paid by reason of these charges within the four years preceding this suit.

The Court of Civil Appeals reversed the trial court’s judgment and rendered judgment in all respects in favor of the City of San Antonio — denying all relief sought by the plaintiffs. Tex.Civ.App., 535 S.W.2d 671. We will affirm the judgment of the Court of Civil Appeals.

The City of San Antonio has owned its gas and electric systems since 1942. In order to finance the purchase of the systems and in accordance with Arts. 1111-1118, Vernon’s Ann.Tex.Civ.Stat., the City entered into a Trust Indenture creating a lien on the properties and revenues of the systems for the benefit of the holders of the electric and gas revenue bonds. The management of these systems is placed in the hands of the five member Public Service Board of San Antonio. The City Council of San Antonio sets the rates charged for gas and electric service.

The Trust Indenture of February 1, 1951, is now in effect. Under Article V of this Indenture, as amended in 1961, revenues of the systems are to be applied according to the following priority:

1. Operating expenses.
2. Principal and interest on the bonds.
3. Reimbursement to the City for the loss of taxes which it would receive were the systems privately owned.
4. Payment to Improvements and Contingencies Fund in the amount of 12½% ;; of gross, revenues. -«■■ ¿, >..j
5. Payment to the City as follows: After setting aside and providing for said minimum amount of 12½% of gross revenues of the Systems to be placed in said Fund as above specified, there shall be paid into the General Fund of the City, to the extent available from remaining revenues in the General Account as of the end of each fiscal year: (a) a sum sufficient to reimburse the City for all amounts paid to the Board during the year for gas and electric services of the Systems used by the City for municipal purposes during such fiscal year and to the extent such remaining funds are found to be sufficient, such reimbursements may be made currently in monthly installments; and (b) commencing February 1, 1960, and during the three fiscal years ending January 31, 1961, 1962 and 1963, a sum in cash which, when added to (1) the payment in lieu of taxes for the year as provided in Section 5 of Article V of this Indenture, (2) the amount of said reimbursements for electric and gas services during the year, and (3) the amount expended during the year for additions to the street and traffic lighting system, will amount to $6,508,000 for the year, and commencing with the fiscal year beginning February 1, 1963, and for each fiscal year thereafter, a sum in cash which, when added to the payments, reimbursements and expenditures for the year mentioned in (1) to (3), inclusive, in the next preceding sentence hereof, will total an amount equal to 14% of the gross revenues of the Systems for the current fiscal year.

After the above listed priorities, the Indenture provides for the payment of any remaining revenues in ‘certain additional amounts to the Improvements and Contingencies Fund and then to the Surplus Fund.

THE 14 PER CENT CLAUSE OF THE TRUST INDENTURE

The petitioners (San Antonio Independent Sphdol District ets@rl.)..complain ..first about the provision listed as number 5 above. It will be seen that, if revenues permit, the City is to receive annually, in services and in money, virtually 14 per cent of the gross revenues of the gas and electric systems. Part of this amount is a sum to reimburse the City in lieu of ad valorem taxes that would be received if the systems were not municipally owned. And part of the amount is reimbursement of the amounts expended by the City for its own electric and gas services and also for traffic and street lighting facilities. Anything further paid under this clause of the Indenture will all be gain to the City.

Originally the City could not obtain anything from its own utility, so long as it was encumbered, except free service and payments in lieu of ad valorem taxes. Art. 1113. This was changed by the enactment in 1949 of Art. 1113a. This latter statute, as amended in 1953, provides as follows:

Incorporated cities and towns having a population of ten thousand (10,000) or more . . . are hereby authorized to transfer to the general fund of the city or town and use for general or special purposes revenues (now on hand or hereafter received) of any municipally-owned utility system in the amount and to the extent as may be authorized or permitted in the indenture, deed of trust, or ordinance providing for and securing payment of revenue bonds . . . notwithstanding any prohibition contained in Article 1113 ....

A city which owns and operates its own public utility does so in its proprietary capacity. Boiles v. City of Abilene, 276 S.W.2d 922 (Tex.Civ.App.1955, writ ref’d). It is apparent from the language of Art. 1113a that the city need not furnish the service at cost. The general rule is that the city is entitled to make a reasonable profit from its own utility system. South Texas Public Service Co. v. Jahn, 7 S.W.2d 942 (Tex.Civ.App.1928, writ ref’d); 12 McQuil-lin, Municipal Corporations (1970) § 35.37c. Petitioners argue that this rule does not apply where Arts. 1113 and 1113a are applicable. They construe these two statutes, when taken together with the Indenture provision, to rule out a reasonable return based upon the City’s investment. Thus, they argue, the City may obtain free service and payment in lieu of ad valorem taxes; the added payments to the City are based upon gross revenues of the systems and are not structured so as to have any relationship to a fair return upon investment. They conclude that any gain beyond free service and payment in lieu of taxes must be either a tax upon the consumer, from the payment of which they claim to be exempt, or a contribution, which may not be exacted from public entities under Art. 3, §§ 51 and 52 of the Texas Constitution.

Our construction of the two statutes is quite different — and quite simple. Prior to 1949 the owner of an encumbered municipal utility was restricted to the two specified items; no other benefits were permissible. After the enactment of Art. 1113a, this prohibition of Art. 1113 was removed in the case of cities of the designated population. Since the removal of the restriction, the City of San Antonio has enjoyed the usual right to make a reasonable profit from its gas and electric systems even while they are encumbered.

Petitioners make no complaint about the reasonableness of the rates or of City’s return from its gas and electric systems. They do complain about the City being paid a percentage of the utilities’ gross revenue. If the rate charges are reasonable, it does not matter how the Indenture sets the priority of payment of available revenue. The June 6, 1974 rate ordinance of the City recites that the “rates are sufficient to provide only a reasonable and proper return upon the fair value of the Electric and Gas Systems properties dedicated to the furnishing of electric and gas services.” Petitioners make no contention or showing to the contrary on that controlling proposition.

During the recent period of .escalating fuel costs the record suggests the possibility that the City’s return may have exceeded the margin of reasonableness. It is stipulated that the full 14% of gross revenues was paid for several years, and the City received almost 23 per cent of its total budget requirement in 1974 from the gas and electric systems. Upon proper pleading and record, if the City’s return were proved to be excessive and unreasonable, the courts could grant relief. See State v. Southwestern Bell Tel. Co., 526 S.W.2d 526 (Tex.1975). Courts avoid interfering with rates fixed by an independent legislative authority. See St. Paul Book & Stationery Co. v. St. Paul Gaslight Co., 130 Minn. 71, 153 N.W. 262 (1915); Seaberg v. Raton Public Service Co., 36 N.M. 59, 8 P.2d 100 (1932). The courts should, however, pass upon the unreasonableness of the rates of a municipally owned utility (set by that municipality) in order to protect the utility customers from being unfairly burdened with the costs of city government. See South Texas Public Service Co. v. Jahn, 7 S.W.2d 942, 945 (Tex.Civ.App.1928, writ ref’d); Mitchell v. City of Mobile, 244 Ala. 442,13 So.2d 664 (1943); 64 Am.Jur.2d Public Utilities § 128.

The question of the justiciable interest required for a party to seek judicial intervention against excessive City of San Antonio utility rates was addressed in Schenker v. City of San Antonio, 369 S.W.2d 626 (Tex.Civ.App.1963, writ ref’d n. r. e.). The dismissal of that action brought by customers of the City was upheld by the Court of Civil Appeals on two grounds: because the plaintiffs had not exhausted their administrative remedies through petition to the City Council and because the plaintiffs lacked justiciable interest to bring the suit. The Court there said that no special injury was alleged apart from the injury to the general public and that therefore “[o]nly lawfully constituted guardians of the public interest may thaintain actions for the redress of such character of injuries.” 369 S.W.2d 630. It should be noted that this Court in City of Texarkana v. Wiggins, 151 Tex. 100, 246 S.W.2d 622 (1952), in holding that a city may not discriminate in the rates charged nonresidents, said:

It is settled in this state that the petitioner, upon the purchase by it of the property of the privately-owned utility, was subject to this same rule prohibiting unreasonable or unjustified discrimination in rates and service. . . . The real reason for the rule that, in so far as treatment of consumers is concerned, the municipally-owned utility is no different from the privately-owned utility is that the economic nature of the business has not changed; it remains a monopoly in spite of the change in ownership. 246 S.W.2d 625.

Many other jurisdictions have permitted consumer suits attacking excessive charges or discrimination by municipal utilities. E. g., State v. Grant Circuit Court, 239 Ind. 315, 157 N.E.2d 188 (1959); Holton Creamery Co. v. Brown, 137 Kan. 418, 20 P.2d 503 (1933); Twitchell v. City of Spokane, 55 Wash. 86, 104 P. 150 (1909); City of Mt. Vernon v. Banks, 380 S.W.2d 268 (Ky.1964); Erickson v. Metropolitan Utilities Disk, 171 Neb. 654, 107 N.W.2d 324 (1961); Hicks v. City of Monroe Utility Comm., 237 La. 848, 112 So.2d 635 (1959); Chicopee Mfg. Corp. v. Manchester Board of Water Com’rs, 97 N.H. 109, 81 A.2d 837 (1951); Kiefer v. City of Idaho Falls, 49 Idaho 458, 289 P. 81 (1930); Delony v. Rucker, 227 Ark. 869, 302 S.W.2d 287 (1957); 12 McQuillin, Municipal Corporations (1970) § 35.37a; 64 Am.Jur.2d Public Utilities § 131.

FUEL ADJUSTMENT PASS THROUGH CHARGES

In 1965 the City Council of San Antonio passed an ordinance setting rates for sale of gas and electricity which permitted the City’s Public Service Board to adjust the rates according to a set formula without further action by the City to compensate for increased (or decreased) fuel costs. This dévicé was continued in the June 6, 1974 ordinance which contained the following fuel adjustment clause:

Plus or minus 0.00125$ per KWH for each whole 0.1$ per million BTU by which the delivered cost of fuel to generate electricity is above or below 24.1$ per million BTU (as computed from Account No. 501 “Fuel” in the books of the CPS Electric System) during the calendar month preceding the current meter reading date. The delivered cost of fuel as stated above is defined as the estimated cost of fuel for the calendar month mentioned above plus the difference (actual less estimated) in the cost of fuel for the second calendar month preceding the current meter reading date. Also, plus or minus an adjustment to provide for any increase or decrease, due to the purchase of power or energy from others, above or below the base cost of generation in CPS plants included in these rates.
Plus or minus the proportionate part of the increase or decrease in taxes, required payments to governmental entities or for governmental or municipal purposes which may be hereafter assessed, imposed, or otherwise required and which are payable out of or are based upon revenues of the Electric System.

This measure was enacted at a time of rapid and enormous increases in the cost of fuel to the City. Automatic rate increases to the consumers resulted — which carried along an automatic charge for the benefit of the City under the second paragraph quoted above. The City Council reduced the latter portion of the fuel adjustment clause charge by passing an ordinance on December 19, 1974 which provided:

SECTION 1. The City Public Service Board is hereby directed to exclude all revenues from gas cost adjustment charges on natural gas delivered directly to customers on the gas distribution system from computation of the 14% payment due to the City General Fund under the Bond Indenture, as amended.
SECTION 2. Effective August 1, 1975, the City Public Service Board is hereby directed to exclude all revenues from fuel adjustment charges on electrical generation on the first 300 KWH per month delivered directly to customers from computation of the 14% payment due to the City of San Antonio under the CPSB Bond Indenture.
SECTION 3. Effective August 1, 1975, the CPSB is hereby directed to exclude all revenues from fuel adjustment charges for electrical generation on the fuel cost above $1.20 per million BTU delivered directly to the customers from computation of the 14% payment due to the City of San Antonio under the CPSB Bond Indenture.

Petitioners attack the fuel adjustment charges, which they have been required to pay, on the following grounds: “A utility which increases profits by a fuel adjustment clause is gouging its customers ipso facto”; and because this is an unlawful delegation of ratemaking discretion to the City Public Service Board. We disagree with both contentions. A charge by the City equal to 14% of the cost of the fuel may or may not “gouge” the customers; that depends upon the total revenues or gain by the City, and petitioners make no complaint at that point. Further, no discretion is thereby given the Public Service Board in the setting of rates.

If the total return to the utility is not at issue, it is immaterial whether the fuel adjustment clause allows the addition of a fixed return to the City along with the higher cost of fuel to the City. Because petitioners are not complaining of the reasonableness of the rates or of the return to the City, they are in no position to complain of the amount of some component of that rate or return. As for the contention that there is an improper delegation of ratemak-ing power to the City Public Service Board, nothing is left to the Board or its staff except the computation of charges pursuant to the rate ordinance and according to the cost of fuel. No discretion is left by which this computation may be changed. We agree with the following statement in the Opinion of the Attorney General of Texas No. H-741, dated November 20, 1975:

In our opinion a city’s enactment of a rate ordinance which includes an automatic adjustment clause based on ascertainable costs controlled by the impersonal forces of the marketplace may be a lawful exercise of the municipality’s rate regulation power. Such an ordinance establishes a rate schedule which changes in response to fluctuations in operating costs. It sets current rates and provides an objective formula for computing future rates. See City of Norfolk v. Virginia Electric & Power Co., [197 Va. 505,] 90 S.E.2d 140 (Va.1955); City of Chicago v. Illinois Commerce Commission, [13 I11.2d 607,] 150 N.E.2d 776 (111.1952); Foy, Cost Adjustment in Utility Rate Schedules, 13 Vand.L.Rev. 663 (1960).

Automatic fuel adjustment charges are in common use and have been repeatedly upheld against attack on the ground of unlawful delegation of legislative authority over ratemaking. See generally, Fowler, Purchased Gas Adjustment Clauses: An Adjuster’s Viewpoint, 6 St. Mary’s L.J. 567 (1974).

The judgment of the Court of Civil Appeals is affirmed.

      . The City points out that Sec. 136 of the City Charter provides that the Supervisor of Public Utilities “shall assemble the facts which are essential to proper determination of cost of service and the fixing of reasonable rates. He shall have and keep up to date an inventory of the property used in public service, the cost of such properties as actually and reasonably incurred or as fixed by appraisal, additions and retirements made each year, the depreciation and all matters that enter into the periodical readjustment of the rate base.”

      . Utilities regulated by the new Texas Public Utilities Commission may employ automatic fuel adjustments, but the utility must file with the Commission, before adjusting the cost to the customer, a copy of its contract for fuel with a revised schedule of anticipated adjustment. These changes are reviewed and may be disallowed by the Commission. Regulation 052.02.033, Vol. 1, Texas Register, pg. 1691 (June 25, 1976).


author: McGEE, Justice.

text:
    Ralph G. TEMPLETON v. UNIGARD SECURITY INSURANCE COMPANY.
    No. B-6123.
    Supreme Court of Texas.
    Dec. 31, 1976.
    Rehearing Denied Feb. 2, 1977.

      Gibbins & Spivey, J. Patrick Hazel, Austin, for petitioner.
    Hudson, Keltner, Smith, Cunningham & Payne, Harold S. Sparks, III, Fort Worth, for respondent.
   McGEE, Justice.

This is a workmen’s compensation case brought by Templeton against the insurer, Unigard Security Insurance Company (Uni-gard). The questions presented in this case involve the determination of whether an error by a court clerk can excuse a party from tardily procuring a judge’s signature to an instrument sought to be included in the transcript and the propriety of an en masse submission of a party’s objection to the court’s charge and his request for a special issue. In district court the jury found that Templeton was not an employee of the alleged employer covered by Unigard and the court rendered a take-nothing judgment against Templeton. The court of civil appeals held that Templeton incorrectly submitted his request for a special issue, réqueát for an'instfuction,'and request1 for á definition, by placing them in the same instrument as his objection to the trial court’s charge to the jury. 537 S.W.2d 315. In addition, the court of civil appeals denied Templeton’s motion to file a supplemental transcript and a trial amendment due to Templeton’s failure to obtain the trial judge’s signature on the objections arid exceptions to the trial court’s charge within the specified time. We reverse and remand the case to the court of civil appeals.

During the trial and before the court read its charge to the jury, Templeton dictated his objections and exceptions to the trial court’s charge which included requests for an instruction, a special issue and a trial amendment, all relating to the issue of borrowed employee. The judgment of the district court was rendered for Unigard on July 1, 1975. Templeton filed his motion for new trial before judgment was rendered on June 27,1975. On September 4,1975 the transcript clerk of the district court received Templeton’s objections and exceptions to the court’s charge. In an accompanying letter, Templeton’s attorney pointed out that the judge had failed to sign the objections and stated that the judge needed to do so before the objections became part of the transcript. The clerk checked the objections but failed to get the judge to sign them before she filed the transcript with the court of civil appeals on October 3, 1975. On March 31, 1976 Templeton’s attorney telephoned the clerk and told her the objections and exceptions had not been signed by the judge. The clerk obtained the judge’s signature on April 1, 1976.

The appeal was set for submission before the court of civil appeals on April 23, 1976. Templeton, on April 2, 1976, filed a motion asking the court of civil .appeals to direct the certification of a supplemental transcript containing the objections and exceptions to the trial court’s charge, which was denied on April 16,1976. On April 23,1976, Templeton filed a motion for rehearing of his motion for a supplemental transcript, which contained an affidavit of the district court’s transcript clerk setting out her mis-táke:;iri'!iMliríg' tó '■'])Fomptij?>í‘ob%,in tfré judge’s signature.- The court of civil appeals reaffirmed its refusal to direct a supplemental transcript because the judge’s signature was not timely under Rule 272 of the Texas Rules of Civil Procedure. The court of civil appeals also held that the objection to the court’s charge and the various' requests were in violation of Rule 273 because they were submitted in the same instrument.

The court of civil appeals correctly held that under Rule 273 of the Texas Rules of Civil Procedure requests for special issues and instructions must be submitted separately from objections to the court’s charge. Rule 273 provides in part the following: “A request by either party for any instructions, special issues, definitions or explanatory instructions shall be made separate and apart from such party’s objection to the court’s charge.” Templeton transcribed the court reporter’s notes of his dictated requests and objection into one instrument entitled, “Plaintiff’s Objections and Exceptions to the Court’s Charge.” The failure of Templeton to separately submit his requests from his objection to the court’s charge results in the requests being waived. Frontier Feedlots, Inc. v. Conklin Bros., Inc., 476 S.W.2d 31, 32 (Tex.Civ.App.—Amarillo 1971, no writ); Blackmon & Associates, Inc. v. Palmer Building Supplies & Specialties, Inc., 463 S.W.2d 228, 230-31 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.); Avant v. Gulf Coast Invest. Corp., 457 S.W.2d 134, 136 (Tex.Civ.App.—Dallas 1970, no writ). Violation of Rule 273 precluded appellate review of the request for a special issue and the request for an instruction to the jury. The objection to the court’s charge was dependent on the submission of the special issue and was not preserved for appellate review. Therefore, only the request for a trial amendment remains to be considered.

The court of civil appeals held that the request for a trial amendment was not properly preserved for appellate review because there was not a sufficient bill of exceptions in the record. 537 S.W.2d at 319. This holding was based on the failure of the trial judge to sign the instrument containing the requested trial amendment in time for it to be properly included in the transcript. Rule 272 was amended effective January 1, 1976 and Templeton asserts that amended Rule 272, which does not require the judge’s signature, is applicable. It is unnecessary for this court to decide which rule is applicable as we hold that the failure to obtain a timely signature of the judge was excused for good cause and the court of civil appeals erred in not considering the merits of the amendment.

Under Rule III of the Rules of Practice in Civil Cases in the District Courts of Tarrant County, Texas, the proper course of action for Templeton to follow in securing the judge’s signature was to submit the amendment to the clerk. District Courts Rule III provides:

“Any instruments involving matters previously heard or disposed of by the Court, as well as instruments which may be signed by the Judge without a hearing, such as dismissals, agreed judgments and certain default matters, among others, shall be presented to the Clerk of the Court involved. The Clerk will then submit promptly such instruments, together with the appropriate docket sheet, to the Judge for his signature. This will permit the orderly presentation of such matters to the Court for its consideration without undue interruptions, and all attorneys are expected to comply.” [Emphasis added].

The rules of procedure for that district court are filed with this court, are not inconsistent with the Texas Rules of Civil Procedure, and are binding on Templeton. Tex.R.Civ.P. 817. The clerk’s error in failing to promptly obtain the judge’s signature was good cause for noneompliance with Rule 272. Tandy Corp. v. McGregor, 527 S.W.2d 246, 247 (Tex.Civ.App.—Texar-kana 1975, writ ref’d n. r. e.); Commercial Standard Ins. Co. v. Southern Farm Bureau Cas. Ins. Co., 509 S.W.2d 387, 391 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.). In both of these cases a party was unable to show good cause for failure to comply with Rule 272, but the courts discussed what would constitute good cause. In Commercial Standard Insurance Company the court stated:

“There is no showing that the failure to comply with the requirements imposed by the Rule was occasioned by an error on the part of the clerk, or that the trial judge refused to endorse his rulings on the written objections, or to affix his official signature thereto, or that the written objections, after having been timely presented to the judge, endorsed and signed by him, were lost or mislaid.” 509 S.W.2d at 391.

Rule 386, before its amendment, expressly provided that good cause was an excuse for the late filing of a transcript or statement of facts. Errors made by a clerk in preparing a transcript or statement of facts have been held to constitute good cause and excuse a late filing. Wigington v. Parker Square State Bank, 321 S.W.2d 334 (Tex.Civ.App.—Fort Worth 1959, no writ); Anzaldua v. Richardson, 279 S.W.2d 169 (Tex.Civ.App.—San Antonio 1955, writ ref’d n. r. e.). It would be ironic for this court to hold that it was necessary for Templeton to comply with the rule of the district court, requiring that the request for the amendment be submitted to the court clerk, but then afford Templeton no relief when an error of the clerk prevented appellate review of the amendment. We hold that where the properly filed rules of procedure for a district court provide that the clerk of the court is to submit instruments to the judge for his signature, the failure of the clerk to promptly submit the instrument, thereby precluding the timely filing of the signed instrument with the court of civil appeals, will not prevent appellate review of the instrument due to the late filing.

The court of civil appeals improperly refused to permit Templeton to file a supplemental transcript containing his motion for a trial amendment. The filing of the supplemental transcript should be permitted so the court of civil appeals can consider the merits of the trial amendment.

The judgment of the court of civil appeals is reversed and the cause is remanded to that court.


author: POPE, Justice. SAM D. JOHNSON,

text:
    Gilbert D. RAMON, Petitioner, v. Paul MANI et al., Respondents.
    No. B-5769.
    Supreme Court of Texas.
    Jan. 12, 1977.

      Rhodes, Doscher, Chalk & Heatherly, A. L. Rhodes and John Allen Chalk, Abilene, for petitioner.
    Smith, Davis, Rose, Finley & Hofmann, George S. Finley, San Angelo, Texas, Marvin S. Sprain, Abilene, for respondents.
   POPE, Justice.

Gilbert D. Ramon sued Dr. Paul Mani and Hendrick Memorial Hospital for damages caused by a sponge that was left in his abdomen following an operation. Plaintiff Ramon took a non-suit against the hospital after it settled the claim against it by paying Ramon 10,000 dollars, but defendant Dr. Mani brought the hospital back into the case by a third-party action. The jury found that Ramon suffered damages in the sum of 42,300 dollars. The trial court, holding that Dr. Mani was entitled to contribution against the hospital, rendered judgment that Ramon recover 21,150 dollars from Dr. Mani. Dr. Mani did not appeal. Plaintiff Ramon appealed, insisting that Dr. Mani was solely liable for the negligence of the nurses in the operating room under the doctrine known as the captain of the ship, and that plaintiff was therefore entitled to recover the full amount of damages. Dr. Mani insisted that the nurses were not his employees but were employees of the hospital.

The jury found: (1) that Dr. Mani left a sponge in Ramon’s retroperitoneal cavity, but (2) he was not negligent in doing so, (3) an X-ray would have revealed the presence of the sponge, (4) Dr. Mani failed to make an X-ray, which was negligence and a proximate cause of Ramon’s injury. (5) The jury refused to find that the scrub and circulating nurses in the operating room during the surgery were Dr. Mani’s borrowed employees, but did find (6) that the nurses failed to make a correct sponge count, and (7) that the nurses were employees of the hospital in the performance of the act of counting sponges. Plaintiff objected to the trial court’s failure to submit issues which inquired about the nurses’ negligence and proximate cause.

The court of civil appeals disapproved the captain of the ship doctrine and held that Dr. Mani’s liability for the negligent conduct of the nurses was, under the evidence, determined by the borrowed servant rule. The court of civil appeals, however, reversed the judgment and remanded the cause for another trial since the trial court refused to submit issues concerning the nurses’ negligence and proximate cause. 535 S.W.2d 654.

This court granted the writ of error in this cause at the same time it granted the writ in Sparger v. Worley Hospital, Inc., 547 S.W.2d 582 (Tex.1977). In both cases, the central question was whether a surgeon in the conduct of an operation in the operating room is liable as captain of the ship even though negligence may be that of a person who is not his employee or his borrowed servant. Our decision in Sparger rejected the captain of the ship doctrine by our holding that an operating surgeon’s vicarious liability must be measured by the standards common to other employers.

The jury in this case found that the nurses were not Dr. Mani’s borrowed servants but were instead the employees of the hospital. Without restating the evidence, those jury answers did find support in the evidence. Ramon also insists that he was entitled to a judgment against Dr. Mani for the full amount of the jury finding, since Dr. Mani failed to prove that the hospital was a joint tortfeasor. Ramon objected to the court’s charge because there were no issues submitted which inquired whether the nurses, as the hospital’s employees, were negligent and if so, whether such negligence was a proximate cause of Ramon’s damages. The court of civil appeals ruled that the nurses’ negligence and proximate cause were not proved as a matter of law and it was for that reason that the court remanded the cause for another trial, citing in support of the remand Praetorian Mutual Life Insurance Co. v. Sherman, 455 S.W.2d 201 (Tex.1970).

We affirm the judgment of the court of civil appeals.

SAM D. JOHNSON, J., dissents.

YARBROUGH, J., not sitting. He was not a member of the Court when the cause was orally argued before this Court.

SAM D. JOHNSON,

Justice dissenting.

This dissent is respectfully submitted.

As set forth in this writer’s dissenting opinion in Dr. C. F. Sparger v. Worley Hospital, Inc., et al., Tex., 547 S.W.2d 582 handed down this same date, this writer would retain the historic position of this state as represented by Harle v. Krchnak, 422 S.W.2d 810 (Tex.Civ.App.—Houston [1st Dist.] 1967, writ ref’d n.r.e.), and McKinney v. Tromly, 386 S.W.2d 564 (Tex.Civ. App.—Tyler 1964, writ ref’d n.r.e.), and hold that an operating surgeon may be liable for any negligence occurring in the operating theater.