author: HENRY, Justice.

text:
    Fred E. BREEDEN et ux., Petitioners, v. INDEPENDENT FIRE INSURANCE COMPANY, Respondent.
    Supreme Court of Tennessee.
    Dec. 1, 1975.

      Hugh F. LaRue, III, Flynn & Flynn, Knoxville, for petitioners.
    David E. Smith, Hodges, Doughty & Carson, Knoxville, for respondent.
   OPINION

HENRY, Justice.

This civil action presents for solution the question of the admissibility, in a civil action, of a declaration against penal interest.

I.

This issue arises in the context of a civil suit by insured property owners seeking to recover the full coverage under a standard fire insurance policy, wherein the defendant insurance company’s sole defense was arson.

The case was tried to the court and jury and resulted in a verdict for the plaintiff. Upon appeal, the Court of Appeals unanimously reversed.

This controversy stems from the efforts by the defense to present the testimony of an allegedly hired arsonist, and, failing in that, to present his signed confession.

At the conclusion of the plaintiff’s proof, the defendant called Donny Simpson, whose name had been alluded to various times during the presentation of plaintiff’s proof. It is apparent from reading the record that the trial judge was alerted to the fact that Simpson, a nineteen year old man, was going to testify that he had burned the building as the hired agent of the insured. The trial judge concluded that he was under an obligation to conduct a voir dire examination of this witness, out of the presence of the jury. As a result of that examination, the witness elected to claim his rights under the Fifth Amendment to the Constitution of the United States; he then declined to testify.

Defendant thereupon offered to read the extra-judicial confession of this witness, made on August 27,1973, after having been given proper Miranda warning, to members of the Knoxville Police Department and signed in the presence of three attesting witnesses. The sum and substance of this confession was that he, and a companion, burned the insured’s building, at his request, on the night of June 14, 1972, using gasoline placed in the house for that purpose by the insured. For this act they were paid the sum of $100.00 by the insured, Fred E. Breeden. The defendant insurance company offered this confession in evidence, with proper foundation, but the trial judge ruled it to be inadmissible. It appears in the record marked for identification.

II.

The admissibility of a declaration against penal interest, one of the expanding exceptions to the hearsay evidence rule, has not been addressed by the courts of this jurisdiction. The matter is squarely raised by the assignments of error in this case and we conclude that it is in the public interest and in the best interests of the administration of justice that we recognize this exception and formulate guidelines for its application. We do so, however, only in the context of civil actions.

Preliminarily, and as a predicate for the ensuing discussion, we point out that as a general rule, unsworn extra-judicial declarations by one who is not a party to an action are hearsay and inadmissible. One of the major exceptions to the hearsay evidence rule recognizes declarations against the pecuniary or proprietary interest of the declarant. This rule is bottomed largely upon the premise that such declarations are reliable because it is contrary to human nature for one to make an assertion at variance with his financial, pecuniary or proprietary best interests.

Any discussion of this fascinating and sometimes frustrating evidentiary rule, or exception, must begin with the famed Sussex Peerage Case, 8 Eng.Rep. 1034 (decided by the House of Lords in 1844), holding that declarations solely of a penal nature were not admissible under any circumstances.

The landmark American Case is Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913). In this criminal action the Court held that the statement of a witness that he committed the murder, for which Donnelly was tried, was not admissible. Justice Holmes, in a ringing dissent, and with unassailable logic, declared:

The rules of evidence in the main are based on experience, logic, and common sense, less hampered by history than some parts of the substantive law. There is no decision by this court against the admissibility of such confession; the English cases since the separation of the two countries do not bind us; the exception to the hearsay rule in the case of declarations against interest is well known; no other statement is so much against interest as a confession of murder . 228 U.S. at 277, 33 S.Ct. at 461.

Professor Wigmore called this a “barbarous doctrine”, and, in Vol. 5, Wigmore on Evidence, at Section 1477, went more in detail:

The only practical consequences of this unreasoning limitation are shocking to the sense of justice; for, in its commonest application, it requires, in a criminal trial, the rejection of a confession, however well authenticated, of a person, deceased or insane, or fled from the jurisdiction (and therefore quite unavailable) who has avowed himself to be the true culprit. The absurdity and wrong of rejecting indiscriminately all such evidence is patent
It is therefore not too late to retrace our steps, and to discard this barbarous doctrine, which would refuse to let an innocent accused vindicate himself even by producing to the tribunal a perfectly authenticated written confession

The widely criticized Donnelly doctrine has been rejected in a substantial and increasing number of jurisdictions. See J. Fine, 21 Syracuse L.Rev. 1095 (1970). Brief comment on some of these cases points up the problem and the progress made in its solution.

A most significant case is Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284 (Mo.1945). In that case, the witness was not available because he refused to testify on the ground that his testimony would incriminate him. The Missouri Court held the declaration against penal interest to be admissible. The Court reasoned, in part, as follows:

. . . The rule was originally limited to declarations of deceased persons and it is still so limited in some jurisdictions. But we believe sound reasoning supports the doctrine of those decisions holding that whenever the testimony of the witness is unavailable as a practical proposition, his declaration should be received. This is what Wigmore on Evidence defines as the “Necessity Principle.” We approve the reasoning set forth in Section 1456 of the Third Edition: “The Necessity Principle, as here applied, signifies the impossibility of obtaining other evidence from the same source, the declarant being unavailable in person on the stand. Whenever the witness is practically unavailable his statements should be received. Death is universally conceded to be sufficient. The Principle of Necessity is broad enough to assimilate other causes; but the rulings upon causes other than death are few. They are ill-judged, so far as they do not recognize the general principle of unavailability. Illness and insanity should be equally sufficient to admit the statements; as well as absence from the jurisdiction. Supervening incompetency through interest stands on the same ground.” 189 S.W.2d at 284.

In Newberry v. Commonwealth, 191 Va. 445, 61 S.E.2d 318 (Va.1950), a written confession of guilt was held to be admissible where the confessor refused to testify upon the grounds of self-incrimination, the Court saying:

It would seem that one who refused to testify because his testimony might incriminate him is considered unavailable as a witness, just as though he were beyond the reaches of the Commonwealth, or had since died. 61 S.E.2d at 326.

An outstanding case with a brilliant opin- ’ ion by former Chief Justice Traynor of the California Supreme Court is People v. Spriggs, 60 Cal.2d 868, 36 Cal.Rptr. 841, 389 P.2d 377 (Cal.1964). The opinion reads, in pertinent part, as follows:

The statutes do not exclude hearsay declarations against penal interest. Their admissibility must therefore be determined in the light of the principle that “the purpose of all rules of evidence is to aid in arriving at the truth, [and] if it shall appear that any rule tends rather to hinder than to facilitate this result * * it should be abrogated without hesitation.” (Williams v. Kidd, 170 Cal. 631, 649, 151 P. 1, 8.)
When hearsay evidence is admitted it is usually because it has a high degree of trustworthiness, (citations omitted). Thus, declarations against pecuniary or proprietary interest are admitted because they are unlikely to be false, (citation omitted). A declaration against penal interest is no less trustworthy. As we pointed out in People v. One 1948 Chevrolet Conv. Coupe, 45 Cal.2d 613, 622, 290 P.2d 538, 55 A.L.R.2d 1272, a person’s interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest. Moreover, since the conviction of a crime ordinarily entails economic loss, the traditional concept of a “pecuniary interest” could logically include one’s “penal interest.” (Compare the theory that admits a third person’s confession of a crime on the ground that the crime was also a tort, thus subjecting the declarant to civil liability for damages, a pecuniary interest citations omitted). We have concluded, therefore, that the ruling of the trial court was erroneous insofar as it excludes hearsay declarations against penal interest. . . . 389 P.2d at 381.

Another significant case is People v. Brown, 26 N.Y.2d 88, 308 N.Y.S.2d 825, 257 N.E.2d 16, 43 A.L.R.3d 1407 (1970), wherein the Court held that an admission against penal interest is admissible where material and where the declarant is dead or beyond the jurisdiction of the court and thus unavailable or where he refuses to testify on the ground of self-incrimination.

In Howard v. Jessup, 519 P.2d 913 (Okla.1974), the Oklahoma Supreme Court held that the rule that where one is not available as a witness, his declarations against interest are admissible in evidence, is not limited to adverse interests of a pecuniary or proprietary nature but also applies where the declarations are against the penal interest.

In People v. Riccardi, 73 Misc.2d 19, 340 N.Y.S.2d 996 (1972), the Court held that a declaration against penal interest is admissible if a witness is in court and refuses to testify on the ground of self-incrimination.

These authorities and the cases cited therein serve to demonstrate the increasing number of jurisdictions where declarations against penal interest have been held admissible.

Rule 509 of the Model Code of Evidence of the American Law Institute provides that a declaration is against the interest of a declarant if it subjects him to criminal liability.

In Paine, Tennessee Law of Evidence, Sec. 59, the apt comment is made:

Surely declarations against penal interest are as trustworthy as those concerning one’s pocketbook.

Rule 804 of the Federal Rules of Evidence for United States Courts and Magistrates, which became effective 1 July 1975 provides:

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

III.

Perhaps the leading Tennessee case touching upon this issue is Tom Love Co. v. Maryland Casualty Co., 166 Tenn. 275, 61 S.W.2d 672 (1933) decided long before the start of the trend toward the adoption of the penal interest exception. While this case has not been expressly overruled, its holding has been broadened by a subsequent ease and has been obsoleted by the passage of time and the demands of a more sharply honed and constantly evolving standard of fairness.

Tom Love was a suit to recover on a policy of burglary insurance. The company denied liability on the apparent basis that it questioned the fact of the burglary. Prior to trial of this civil action, one, Stubblefield was arrested for the burglary, made a written confession and an oral statement, and was convicted, with, an automatic declaration of infamy. Upon the trial of the civil action, Stubblefield could not testify by virtue of the statutory prohibition then in effect precluding testimony by persons who had been rendered infamous. The trial judge admitted his extra-judicial declarations. The Court of Appeals affirmed the chancellor, holding that the confession was admissible as a declaration against interest because it subjected him to both civil and criminal liability under the statutory and common law. It is apparent that the Court of Appeals, at that early date, aligned itself with the minority view and upheld a declaration against penal interest.

The Supreme Court reversed. After commenting upon the hearsay evidence rule, the Court said:

There are, however, exceptions to the hearsay rule which authorize the reception of admissions and declarations against interest. Declarations, to be distinguished from admissions, as to facts relevant to the matter of inquiry, are admissible in evidence when it appears that the declarant is dead, that the declaration was against his pecuniary or proprietary interest, and that he had no probable motive to falsify the fact declared. 166 Tenn. at 277, 61 S.W.2d at 673.

Again, the Court said:

The weight of authority is against the unreasonable extension of the exceptions to the rule, and most of the cases held that it is only when the declarant is dead that his declaration against interest will be received. Reasoning and authority support the conclusion that the exception should not be extended to include infamy along with insanity and death as another ground of unavailability authorizing the reception as evidence of the statement of a witness subsequently adjudged infamous. 166 Tenn. at 279, 61 S.W.2d at 673.

Tom Love was founded upon acceptable legal principles in 1933 in that it followed the holdings of the overwhelming majority of American jurisdictions; however, it was criticized at the time.

Be this as it may, as a result of Tom Love, the law of Tennessee in 1933 was that the exception was limited to cases of unavailability because of death (and by dictum, insanity).

In 1974, there came before this Court the case of Tibbs v. Ake, 505 S.W.2d 232 (Tenn.1974), which involved testimony as to declarations and admissions made by a witness who, at the time of the trial, was permanently incompetent to testify. The Court held:

We think the rule in this State should be broadened to include illness, such as in this case, insanity and unavailability as a witness in person or by deposition. 505 S.W.2d at 236.

There is an analogous line of cases relating to the admissibility of the testimony of a witness at a former trial. Such testimony may be read in a subsequent trial where the witness is dead, Somerville v. State, 483 S.W.2d 757 (Tenn.Crim.App.1972), or where he is in a foreign country beyond the jurisdiction of the Court, Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150 (1965). We particularly note the opinion of Justice Hum-phreys in In Re Estate of Rhodes, 222 Tenn. 394, 436 S.W.2d 429 (1968), wherein he quotes with approval from 29 Am.Jur., Evidence, § 738, as follows:

The law recognizes, however, that it is sometimes impossible to produce a witness who has testified at a former trial, as where the witness dies, becomes insane before the later trial, is out of the jurisdiction, or is kept away from the trial by the opposite party. In such cases, where the second action is between the same parties or their privies and involves the same issues, and where the party against whom the evidence is offered had the opportunity to cross-examine the witness who gave the testimony, such testimony given at the former hearing or trial is, according to practically all decisions, admissible in the later one. Because such testimony has been delivered under the sanction of an oath and subject to the right of the adverse party to cross-examine the witness giving it, it is not open to the objections ordinarily urged against hearsay evidence. 436 S.W.2d at 434.

IV.

We feel that there is a compelling necessity for the further expansion of Tom Love. In so doing we do not conceive it to be either necessary or proper to separate declarations against pecuniary interests from those against penal interests. Indeed, declarations against penal interests are only semantically different from those against pecuniary interests, since a declaration of guilt of criminal conduct subjects the de-clarant to both criminal and civil liability, as a general rule. In each instance we are dealing with an exception to the hearsay evidence rule and our sole concern is to insure that such declarations are admissible where material and reliable in cases where there is an impediment to the presentation of the declarant as a witness.

From this day forward, extra-judicial declarations against pecuniary or penal interests, where material, are admissible where the declarant is dead; beyond the jurisdiction of the court and the reach of its processes; is suffering from such infirmities of body or mind as to preclude his appearance as a witness, either by personal presence or by deposition; or where he is present in court and refuses to testify on the ground of self-incrimination.

As a further condition of admissibility, it must be shown that the declarant was in a position to have knowledge of the facts forming the subject of his declaration; that no motive to misrepresent was present when the statement was made, and, in appropriate cases, that the party offering the declaration has made a good faith effort to secure his attendance.

All conditions herein outlined will be determined by the trial judge out of the presence of the jury.

We adopt these guidelines pursuant to the inherent supervisory power of this Court.

The judgment of the trial court is reversed; that of the Court of Appeals, modified and affirmed; and this action is remanded for a new trial.

FONES, C. J., COOPER and HARBI-SON, JJ., and HYDER, Special Judge, concurring.

      . This rule did not become a part of our common law since it was not formulated until after the separation of the colonies.

      . See Footnote, Vol. 15, Tennessee L.Rev., p. 575 (1939) wherein Wicker said:
      The court’s attempt to distinguish between unavailability of a declarant on account of death and unavailability of a declarant on account of infamy is not convincing.


source: Caselaw Access Project

license: Public Domain

text:
    Janice KARASH et vir., Appellants, v. J. D. PIGOTT et al., Appellees.
    Supreme Court of Tennessee.
    Dec. 1, 1975.

      James F. Schaeffer, D. Franklin Moore, Jr., Memphis, for appellants.
    Albert T. McRae, Nelson, Norvell, Wilson, McRae, Ivy & Sevier, Memphis, for Pigott and Free.
    Gavin M. Gentry, Armstrong, Allen, Bra-den, Goodman, McBride & Prewitt, Memphis, for Baptist Hospital.
   OPINION

HENRY, Justice.

The only issue presented on this appeal in a medical malpractice action is the right of the plaintiffs to amend their complaint.

I.

Suit was instituted in the Circuit Court at Memphis, on 31 May, 1973, against the Baptist Hospital and three physicians. In the first count of the complaint, plaintiffs allege the admittance of Mrs. Janice Karash to the hospital, and the uneventful performance of a hysterectomy followed by a blood transfusion on 2 June, 1972, where allegedly impure or defective blood was dispensed or sold by the hospital, resulting in serum hepatitis. This count sounds in strict liability. It was subsequently dismissed, except for background factual averments, on motion for summary judgment.

In the second count plaintiffs allege negligent failure to examine the blood, failure to warn of the dangers and risks involved, failure to obtain informed consent and unreasonable exposure to the risk of serum hepatitis. This count sounds in negligence.

On 1 January, 1975, after interrogatories had been propounded and answered and after depositions had been taken, plaintiffs moved the court for leave to amend so as to incorporate in the complaint a count charging assault and battery. This count would read, in pertinent part as follows:

2. That the blood transfusions given to the plaintiff, Mrs. Janice Karash, on or about June 2, 1972, were administered despite Mrs. Karash’s express rejection of the blood transfusions and were administered by agents, servants and/or employees of the defendant hospital, pursuant to direct orders of both defendant physicians, following the exertion of pressure, intimidation and coercion upon the plaintiff. The plaintiff was not consulted by the defendants prior to the administration of the transfusions and her consent to the transfusions was never given. She, in fact, vigorously objected to the administration of the transfusions at the time they were given.

On 31 January, 1975, the trial judge denied the motion to amend. In disposing of plaintiffs’ motion to reconsider, the trial judge held that “the proposed Amendment to Complaint constitutes a new cause of action which is barred by the statute of limitations.” Pursuant to § 27-305, T.C.A., the trial judge made a proper certification and permitted this appeal, which has been perfected. We have elected to review the matter.

II.

This controversy is virtually concluded by our holding in Branch v. Warren, 527 S.W.2d 89 (Tenn.1975), wherein we said:

. The policy of our law has long favored amendments. Section 198, Ca-ruthers’ History of a Lawsuit, Eighth Edition (1963) reads, in pertinent part as follows:
Under the very liberal rules allowing amendments, the court may admit material amendments at any stage of the proceedings. The Supreme Court of Tennessee has said: “It is a downright violation of principles, and of good sense, to determine any case otherwise than on its merits, and it is a great imputation upon judges that so many statutes of jeofails have been needful to place common sense upon her native seat, from which she has been driven by technicalities.”
The new Rules of Civil Procedure, in this regard “come not to destroy the old law, but to fulfill.” They were designed to simplify and ease the burden of procedure under the sometimes harsh and technical rules of common law pleading. Accordingly, Rule 15.01 provides that leave (to amend) shall be freely given when justice so requires. This proviso in the rules substantially lessens the exercise of pre-trial discretion on the part of a trial judge. Indeed, the statute (§ 20 — 1505, T.C.A.) which conferred a measure of discretion on trial judges was repealed and Rule 15 stands in its place and stead. That rule needs no construction; it means precisely what it says, that “leave shall be freely given.”

The hospital insists that the proposed amendment states a new cause of action and, as such, is barred by the one-year statute of limitation.

We disagree.

The time-honored “new cause of action” objection to amendments has been substantially eroded by the New Rules of Civil Procedure. Rule 15.03 has never been construed by our courts; however, its language is so clear and unequivocal that it is virtually self-construing. In pertinent part it declares:

Whenever the claim or defense asserted in the amended pleadings arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. (Emphasis supplied).

The great liberality of this Rule is convincingly demonstrated by the ensuing provisions permitting a new party, under certain circumstances, to be brought in notwithstanding the fact that the statute has run at the time of the amendment.

Clearly, the assault and battery, as charged in the proposed amendment, if it occurred, arose out of and was a part and parcel of the conduct, transaction and occurrence set forth in the original complaint. The New Rules of Civil Procedure are designed to insure that cases and controversies be determined upon their merits and not upon legal technicalities or procedural niceties.

Rule 15.03, Tenn.R.Civ.P., to the extent here pertinent, is identical with Rule 15(c) Fed.R.Civ.P.

Numerous cases construing Rule 15(c) of the Federal Rules are cited by appellants. White v. Holland Furnace Co., 31 F.Supp. 32 (E.D.Ohio 1939); Green, et al. v. Walsh, et al., 21 F.R.D. 15 (E.D.Wis.1957); United States v. Templeton, 199 F.Supp. 179 (E.D.Tenn.1961); Blair, et al. v. Durham, 134 F.2d 729 (6 Cir. 1943); Lauritzen, et al. v. Atlantic Greyhound Corp., 8 F.R.D. 237 (E.D.Tenn.1948).

On remand the tendered amendment will be allowed.

This action is

Reversed and remanded.

FONES, C. J., MATHERNE, Special Justice, and COOPER and HARBISON, JJ., concur.

      . See Comment, The New Tennessee Rules Rev. 501, 511 (Winter 1970). of Civil Procedure. D. Paine, 37 Tenn.L.


text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, Petitioner, v. Johnny CREASY, Respondent.
    Supreme Court of Tennessee.
    Dec. 1, 1975.
    Joe M. Duncan, Burch, Porter & Johnson, Memphis, for petitioner.
    Walter Buford, Buford & Deal, Memphis, for respondent.
    Joseph A. Heffington, Watson, Lewis & Knolton, Memphis, amicus curiae.
   OPINION

HENRY, Justice.

This appeal stems from an uninsured motorist provision of an automobile liability insurance policy, and presents the single question of the necessity for strict compliance with a closed-end time limitation governing notice to the insurer.

The trial judge sustained Hartford’s motion for a summary judgment, in effect holding that there must be strict compliance. The Court of Appeals (W.S.) held that respondent was a third party donee beneficiary and that his lack of knowledge of the existence of the insurance coverage excused delay in compliance with the notice provisions of the policy so long as those requirements are met within a reasonable time after the discovery of the contract.

We granted certiorari in order to clarify and up-date the law.

I.

The respondent was injured on 8 July 1971 when the truck that he was driving was struck by a hit-and-run driver. The police authorities were immediately notified. Neither respondent nor his employer, the named insured, gave any notice to the Company. The record shows that respondent had no knowledge of the existence of the policy and, for that matter, had never even heard of uninsured motorist coverage. He employed an experienced attorney at the Memphis Bar on 15 July 1971, seven days after the accident, to assist him in the pursuit of his Workmen’s Compensation claim. Petitioner, in brief and oral argument, insists that its first notice of the loss was when suit was filed on 26 June 1972, eleven months and eighteen days after the accident, and eleven months and eleven days after the employment of counsel. Technically, the record does not support this insistence; however the respondent, in oral argument, concedes that he did not discover the existence of uninsured motorist coverage until “shortly before the statute ran”, and he then filed suit. This opinion, therefore, proceeds upon the assumption that no notice was ever given except to the extent of the institution of the lawsuit.

II.

The pertinent provision of the policy reads as follows:

“. . . ‘hit-and-run vehicle’ means a highway vehicle which causes bodily injury to an insured arising out of a physical contact of such vehicle with the insured or with a vehicle which the insured is occupying at the time of the accident, provided:
(a) * * *
(b) the insured or someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof.”

At the very outset we make it clear that we are dealing with the notice requirement in the context of an “additional insured”, or “permissive user”, or any other covered individual except the named insured, or a member of his household or such other individuals whose relationship to or connection with the named insured is such as to require that his knowledge be imputable to them. The rigidity of the notice requirement necessarily peaks in cases involving the named insured and diminishes as the relationship or connection with him widens.

It should also be noted that it is only the delay in giving notice that, in appropriate cases, may be excused or tolerated and not the notice itself. Notice is a vital and indispensable condition precedent to recovery under the policy. We are cited to no case wherein failure to give notice has been excused — only the delay.

Moreover, we recognize that the notice requirement of an insurance policy providing uninsured motorist coverage based on hit-and-run incidents, while founded in contract, also are deeply rooted in public policy considerations. Not only is the insuror entitled to notice in order that it may make prompt investigation and prepare for the defense of the claim, it is entitled to protect its interests in an area susceptible to the presentation of spurious claims. Also, it is in the public interest that litigation be minimized and, to this end, it is essential that the insurance company be in a position to settle claims on a knowledgeable basis.

Perhaps the leading case in Tennessee on the general subject of the necessity of notice and the effect of delay is Phoenix Cotton Oil Co. v. Royal Indemnity Co., 140 Tenn. 438, 205 S.W. 128 (1918). Cited consistently during the ensuing years this case stands as authority for the general propositions that (1) notice is a condition precedent to recovery under the policy and (2) there need not be any showing of prejudice. The opinion quotes with approval from a Massachusetts case holding that “notice is one of the essentials of the cause of action.” 140 Tenn. at 444, 205 S.W. at 130. We reaffirm Phoenix as a correct statement of the general rules relating to notice. However, it should be noted that in Phoenix, the Court was dealing with a named insured.

The respondent relies heavily upon Spradlin v. Columbia Ins. Co. of New York, 34 Tenn.App. 17, 232 S.W.2d 605 (1950). There, without the knowledge of the purchaser of a financed automobile, the seller procured a policy of collision insurance. When the note was fully paid, the bank returned it, along with the insurance policy, to the automobile dealer. Thereafter, Spradlin, the named insured, was involved in a collision. Since he did not know of the coverage he made no claim. About five months later he received an expiration notice. This was his first knowledge of the existence of the policy. The Court quoted from 29 Am.Jur.Insurance, Sec. 1109, pp. 832-833 (Sec. 1471, Am.Jur.2d) as follows:

As a general rule, where the beneficiary of a life or accident insurance policy is ignorant of the existence of the policy, delay in giving notice and furnishing proofs of loss is excused, and in such case, there is a sufficient compliance with the provisions if notice and proofs of loss are made within a reasonable time after the discovery of the existence of the policy. This result has been reached where the policy provided for “immediate” notice and proofs within a certain period of time after the accident or death, as well as where the policies excused strict compliance with the requirements as to notice if compliance was not shown to have been reasonably possible. However, the lack of knowledge of the policy must be without negligence or fault of the party seeking to be excused. 232 S.W.2d at 608

Additionally the Court said:

Our courts recognize that delay in giving notice and filing proofs of loss within the prescribed time may be excused under certain circumstances . . .We hold the lack of knowledge of the insured (whom we absolve of negligence), excuses the delay. 232 S.W.2d at 609

With these generalized conclusions we have no fault and we recognize the correctness of the results reached in Spradlin. We do not, however, consider Spradlin as sufficient authority to support respondent’s position in this case. To the contrary, the quoted language from American Jurisprudence to the effect that the lack of knowledge of the policy must be without neglect or fault of the insured, would dictate a contrary conclusion.

The petitioner places strong reliance upon Barfield v. Insurance Company of North America, 59 Tenn.App. 631, 443 S.W.2d 482 (1969). There the Court held that the policy provision requiring 24-hour notice of accident to the police authorities, was a condition precedent to recovery and failure to give such notice by an insured who was physically able to give the notice defeated recovery. Implicit in the Court’s holding was a recognition that ability to give notice was the key. Inability to give notice might result from mental or physical cause or it might stem from lack of knowledge of the existence of the policy, or from other significant reasons. We do not regard Barfield as being fully supportive of petitioner’s position. Had the insured offered some reasonable explanation, the results, admittedly harsh, no doubt would have been different.

We are impressed with the fact that in the instant case respondent employed capable counsel seven days after the accident and that counsel ultimately discovered the fact of the uninsured motorist coverage and the identity of the insurance carrier. The burden of offering an explanation or excuse for failure to give notice must rest heavily upon the insured since he seeks relief from the plain terms of a contract of insurance coverage. We are persuaded that the existence of coverage could have been determined by the exercise of reasonable diligence. Having made such discovery a mere letter to the insurance company within the 30-day period, or a reasonable time thereafter, upon a proper showing of reasons for the delay, would have been substantial compliance. Hamhill v. Nationwide Mutual Insurance Company, 499 S.W.2d 892 (Tenn.App.1972).

We hold that an additional insured, operating a vehicle with the permission of the named insured, or under any other circumstances wherein coverage is afforded, must, as a condition precedent to recovery, give the notice or notices required by the policy, and that failure to do so will defeat recovery if he has knowledge of the policy. If he does not have such knowledge, his failure to give notice will be excused, if that failure was not the result of fault or neglect upon his part. The notice limitation provided in the policy will run from the date upon which he actually obtained such knowledge or should have obtained it by the exercise of reasonable care and diligence.

Applying this rule to this case, we hold that respondent’s failure to give notice to the company, coupled with his failure to show the exercise of reasonable care and diligence in attempting discovery defeats recovery under the policy. It, therefore, results that suit against the petitioner was barred for failure to comply with a condition precedent within a reasonable time.

When Spradlin and Barfield are read in proper perspective they are not inconsistent and each supports the conclusion we reach.

The judgment of the Trial Court is affirmed and that of the Court of Appeals is reversed.

FONES, C. J., COOPER and HARBI-SON, JJ., concur.


author: OLIVER, Judge.

text:
    Albert HELTON, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    May 29, 1975.
    Certiorari Denied by Supreme Court Sept. 2, 1975.

      Willian M. Leibrock, Newport, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, Henry F. Swann, Dist. Atty. Gen., Dandridge, for defendant in error.
   OPINION

OLIVER, Judge.

Represented in this proceeding by appointed counsel, the petitioner Albert Hel-ton, an inmate of the State Penitentiary where he is serving a three to five year sentence for concealing stolen property adjudged in the Circuit Court of Cocke County when the same attorney represented him by appointment, has perfected an appeal to this Court from the judgment of that court dismissing his petition for post-conviction relief (TCA § 40-3801, et seq.) after a full evidentiary hearing.

The petitioner was convicted of “aiding and abetting receiving stolen property” on 22 May 1972. On appeal to this Court, the judgment of the trial court was modified (in order to conform with the verdict of the jury) to concealing stolen property and affirmed. Marshall v. State, 497 S.W.2d 761 (Tenn.Cr.App.1973), cert. den. June 18, 1973.

In his present petition Helton attacked his conviction upon several grounds, but in this appeal he has elected to press only three of them. We now consider those.

The first contention is that the petitioner did not receive a fair trial because one of the trial jurors held a bad check written by him. We gather from the record that the juror in question did in fact have such a check, but did not realize until after the trial was over that it was written by the petitioner.

At the evidentiary hearing upon this petition, the petitioner’s attorney testified he knew about the check during the voir dire examination of the juror, that he questioned this juror somewhat more than he would have done if he had not had that information, that he accepted this juror and did not raise this question in the direct appeal to this Court. Helton testified in the evidentiary hearing that he knew of the possible prejudice of the juror and that he informed his attorney about that before the trial.

What the Supreme Court of this State said in Thomas v. State, 109 Tenn. 684, 75 S.W. 1025, 73 years ago, is controlling and clearly mandates rejection of the petitioner’s contention that a trial juror was disqualified:

“Further, it does not appear by affidavits of the plaintiff in error, or of his counsel, or otherwise, that the alleged disqualification of the jurors attacked was unknown to them when they were sworn, or at other times before the verdict was rendered, or that he called the attention of the court to their disqualification as soon as he received the information.
“This is necessary in all cases where new trials are asked upon account of the misconduct or disqualification of jurors. Parties can not knowingly permit incompetent jurors to try their cases, and then take advantage of the incompetency when the verdict is adverse to them. They can not experiment with the courts in this way, but must call the attention of the trial judge to the facts in the proper manner at the earliest opportunity, or they will be held to have waived the disqualification.”

Next, Helton contends that he was sentenced upon an illegal verdict. This insistence was fully considered by this Court in his direct appeal from his conviction. Marshall v. State, supra. It is fundamental that habeas corpus and post-conviction proceedings may not be employed to raise and relitigate or review questions decided and disposed of in a direct appeal from a conviction. Ray v. State, 489 S.W.2d 849 (Tenn.Cr.App.1972) and cases therein cited. See also: TCA §§ 40-3811 and 40-3812, which preclude post-conviction relief upon a ground previously determined.

Finally, Helton urges in this petition and before this Court that the trial court erred in not granting him a severance, his specific insistence being that in a separate trial his co-defendant Marshall could have testified in his defense. We may take judicial notice of the record of the petitioner’s direct appeal to this Court. State ex rel. Leighton v. Henderson, 1 Tenn.Cr.App. 598, 615, 448 S.W.2d 82; Canupp v. State, 3 Tenn.Cr.App. 249, 250, 460 S.W.2d 382; State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667. Accordingly, we have carefully reviewed the entire trial record of Marshall and Helton. No motion for a severance appears therein, nor was any mention of a severance made on the direct appeal.

Furthermore, it is considered appropriate to mention in passing, for the petitioner’s benefit, that a motion for a severance is addressed to the sound discretion of the trial court, Cole v. State, 4 Tenn.Cr.App. 645, 654, 475 S.W.2d 196, and that an equally fundamental rule of law is that a trial court’s exercise of judicial discretion may not be reviewed collaterally in post-conviction proceedings, Ray v. State, supra, and cases cited therein.

In a habeas corpus or post-conviction proceeding, the burden is on the petitioner to prove his allegations attacking the validity of his conviction. Miller v. State, 508 S.W.2d 804 (Tenn.Cr.App.1973). This petitioner has failed to carry that burden.

Affirmed.

MITCHELL, J., and JOE D. DUNCAN, Special Judge, concur.


text:
    Jimmy MEADE, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    June 10, 1975.
    Certiorari Denied by Supreme Court Sept. 8, 1975.
    Wade M. Boswell and Randall E. Nichols, Knoxville, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Tom Jennings, Asst. Atty. Gen., Nashville, Ronald

      A. Webster, Dist. Atty. Gen., Knoxville, for defendant in error.
   OPINION

OLIVER, Judge.

Represented by appointed counsel, Meade is in this Court by appeal in the nature of a writ of error contesting his conviction of receiving stolen property under the value of $100 (TCA § 39-4218) and resulting sentence of 18 months to five years. The minimum sentence of 18 months was set by the jury, in accordance with TCA § 40-2707, at a longer period than the statutory minimum of one year. This action is uncontested by the defendant.

As the defendant has challenged the sufficiency of the evidence, we summarize the pertinent evidence adduced at the trial.

Between 6:00 and 7:00 a. m. on November 25, 1973, the front display window of Martin’s Shoe Store on the Market Square Mall in Knoxville, Knox County, was broken and nine pairs of men’s shoes were removed therefrom.

Two Knoxville Police Department officers patrolling in the area of the Mall about 5:00 o’clock that morning saw the defendant and one James Turnbill, a co-defendant tried separately (whom both officers knew), sitting under a canopy on the Mall some 15 to 20 yards from the front of the Martin store. The officers parked at a vantage point and watched the pair until shortly before 6:00 a. m. when they were scheduled to go off duty and then drove through the Mall and checked the doors and glass of the stores and found all secure.

On December 8, 1973, the investigating officers went to the apartment of Kathe-leen Breeden, the woman with whom the defendant lived, to look for him. Miss Breeden and one of the officers were acquainted and she admitted them to the apartment. The defendant was not there, but the officers saw on the floor of the living room a pair of shoes matching the description of one of the pairs stolen from the store. Miss Breeden told the officers that the shoes were the defendant’s, but she did not tell them how he had obtained them.

The owner of the shoe store testified that his was the only store in Knoxville selling this particular style of shoe and that he had not sold any of them prior to the date that the pair was discovered in the Breeden apartment, which he identified as his. He also testified that of the nine pairs stolen from the store display window, four pairs were recovered almost immediately from an alley behind the store and that the other five pairs (including those found in the Breeden apartment) were worth $120, i. e. $24 per pair. Another pair of the stolen shoes was found being worn by the co-defendant Turnbill.

There was testimony that the defendant had been seen, subsequent to the theft, wearing the pair of shoes found in the Breeden apartment.

The defendant did not testify but did present Katheleen Breeden as a witness.

Miss Breeden testified that the morning in question the defendant had been out drinking and came to the apartment around 3:30; that he stayed at the apartment about an hour and then left (around 4:30 a. m.) in order to get another drink; that around 5:30 a. m. she went looking for him and found him talking to Turnbill in front of the Golden Sun Restaurant on the Mall; that they then returned to the apartment together and went to sleep. She further testified that around 8:30 that morning, while the defendant was still asleep, Turn-bill came by the apartment and offered to sell her a new pair of men’s shoes for $5.00 and that she bought them; that Turnbill did not say where he had gotten the shoes and that she did not ask him; and that they were the same pair that the police seized at her apartment. She testified she gave the shoes to the defendant as a present when he awoke that afternoon and told him where she got them and how much she had paid for them.

The elements of receiving stolen goods, as stated many times by the appellate courts of this State, are: (1) fraudulently receiving, (2) goods feloniously taken or stolen from another, (3) knowing such goods to have been so obtained, (4) with intent to deprive the owner thereof. Bennett v. State, 1 Tenn.Cr.App. 241, 435 S.W.2d 842 and cases therein cited; Daniel v. State, 489 S.W.2d 852 (Tenn.Cr.App.1972); Jones v. State, 219 Tenn. 228, 409 S.W.2d 169; Taylor v. State, 493 S.W.2d 477 (Tenn.Cr.App.1972).

This State has adopted the objective test rule to determine the guilty knowledge of the defendant. In Tackett v. State, 223 Tenn. 176, 443 S.W.2d 450 the Court said:

“. . . In Kessler [Kessler v. State, 220 Tenn. 82, 414 S.W.2d 115], we restated the objective test rule as to guilty knowledge of the theft, first adopted in this state in Wright v. State, 13 Tenn. 154, restating it in accordance with Wharton’s Criminal Law and Procedure:
‘That is, the existence of guilty knowledge is to be regarded as established when the circumstances surrounding the receipt of the property were such as would charge a reasonable man with notice or knowledge or would put a reasonable man upon inquiry which if pursued would disclose that conclusion.’ Wharton’s Criminal Law & Procedure, Anderson, Yol. 2, p. 281, § 568.”

See also: Gossett v. State, 224 Tenn. 374, 455 S.W.2d 585; Taylor v. State, supra; McGee v. State, 2 Tenn.Cr.App. 652, 455 S.W.2d 656.

By the testimony of the defendant’s own witness it is established that he acquired a new pair of shoes as a gift from his paramour who bought them from his co-defendant for only $5.00. We feel that from this circumstance and others related, the jury could reasonably infer the essential element of guilty knowledge necessary to sustain this conviction. Manifestly, the defendant has failed to carry his burden of demonstrating in this Court that the evidence preponderates against the verdict of the jury and in favor of his innocence. Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799 (1967); Shadden v. State, 2 Tenn.Cr.App. 450, 455 S.W.2d 164 (1970); Cagle v. State, 507 S.W.2d 121 (Tenn.Cr.App.1973).

Defendant next assigns as error that the judge allowed the jury to consider the first two counts of the indictment, burglary and larceny, as they tended to prejudice the jury against the defendant. The defendant was indicted in a four count indictment, the four counts charging him with burglary, larceny, receiving stolen goods and concealing stolen goods, respectively. The court charged the jury as to all of the counts, but instructed them that they could convict the defendant on not more than one of the counts, if any.

As noted, the evidence placed the defendant at the scene of the burglary very shortly before the crime took place and showed he had exclusive personal possession of property taken in the burglary soon after it occurred. From these facts (if believed) the jury could have found the defendant guilty of either burglary or larceny.

It is common and correct practice to charge burglary, larceny, receiving stolen property and concealing stolen property in separate counts in an indictment when all those offenses relate to one criminal episode. And such an indictment is not objectionable for duplicity. Cronan v. State, 113 Tenn. 539, 82 S.W. 477. See: Gamble v. State, 215 Tenn. 26, 383 S.W.2d 48.

We reviewed the principle involved in Halquist v. State, 489 S.W.2d 88 (Tenn.Cr.App.1972):

“It is well settled in this State that if the different offenses charged in the different counts grow out of the same transaction, or if they be but different species of the same offense, the several counts may and should be joined in the same indictment. Galbreath et al. v. State, 187 Tenn. 669, 216 S.W.2d 689; Tenpenny v. State, 151 Tenn. 669, 679, 270 S.W. 989; Davis v. State, 85 Tenn. 522, 526, 3 S.W. 348; Foute v. State, 83 Tenn. 712; Kannon v. State, 78 Tenn. 386; Murphy v. State, 77 Tenn. 373, 377; Smith v. State, 76 Tenn. 386; Lawless v. State, 72 Tenn. 173; Hall v. State, 71 Tenn. 552, 558; Smith v. State, 70 Tenn. 614; Kelly v. State, 66 Tenn. 84; Ayrs v. State, 45 Tenn. 26, 28; State v. Lea, 41 Tenn. 175; Cash v. State, 29 Tenn. 111; Wright v. State, 23 Tenn. 194. In Galbreath v. State, 187 Tenn. 669, 216 S.W.2d 689, supra, the Court said: ‘The insertion of several counts charging kindred offenses which the proof may develop to be a violation of one statute or another is a common and approved practice, and tends to a much more rapid dispatch of the business of the Court. We do not think such practice is either unfair or prejudicial to defendants.’
“And where the several counts of an indictment are based upon the same transaction, the State cannot be required to elect to proceed upon one count or the other. Raine v. State, 143 Tenn. 168, 226 S.W. 189; Lawless v. State, supra.”

This familiar rule that allows inclusion of more than one offense of the same grade or class in as many separate counts of the same indictment contemplates a separate charge for each offense. In other words, in such a case the defendant is put upon his trial for exactly what he is charged with. Holt v. State, 107 Tenn. 539, 64 S.W. 473.

In Casey v. State, 491 S.W.2d 90 (Tenn.Cr.App.1972), we said: “It is fundamental that in criminal cases there is a positive duty upon the trial judge to give the jury a complete charge on the law applicable to the facts of the case, and that the defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury upon proper instructions by the trial court. Poe v. State, 212 Tenn. 413, 370 S.W.2d 488. Various cases illustrating and emphasizing those principles are cited in Poe.”

Of course this means that the trial judge must instruct the jury as to all counts in an indictment.

By his fourth Assignment of Error the defendant complains that the court should have granted his motion for a mistrial when the jury first returned a verdict of guilty as to both receiving and concealing stolen goods.

When this occurred, the Court stated: “Ladies and gentlemen of the jury, your forlady [sic] has stated that you find the defendant guilty under the 3rd and 4th counts of the indictment. The third count charges receiving stolen property and the fourth count charges concealing stolen property. Retire and re-read your original charge and continue to deliberate further and when you are ready to report your verdict, advise the Court.”

Receiving and concealing stolen property are separate and distinct crimes. Sullivan v. State, 513 S.W.2d 152 (Tenn.Cr.App.1974), and authorities therein cited; TCA § 39-4217.

When the jury reports an incorrect or imperfect verdict, the court has the power and the duty to send them back to the jury room with directions to amend the verdict and put it in proper form. State v. Brown, 209 Tenn. 141, 149-151, 351 S.W.2d 385. See: Jenkins v. State, 509 S.W.2d 240 (Tenn.Cr.App.1974).

Defendant also complains that his sentence of 18 months to five years was so excessive, given the fact that all that allegedly was proven to have been received by him was one pair of shoes, as to be “arbitrary, capricious, and showed prejudice against the defendant on the part of the jury.” The sentence was within the statutory limits and the jury was charged by the trial court that, if they felt the statutory sentence to be too severe, they could set a sentence of not more than 12 months in the county jail. Where, as in this case, the sentence imposed is within the applicable statutory limits of punishment, a claim that it was corruptly motivated by passion, prejudice and caprice on the part of the jury is untenable. Headrick v. State, 519 S.W.2d 403 (Tenn.Cr.App.1975). See: Yearwood v. State, 2 Tenn.Cr.App. 552, 455 S.W.2d 612, in which a sentence of one to five years for larceny of one pair of shoes valued at $5.00 was held not to be excessive.

Affirmed.

GALBREATH and RUSSELL, JJ., concur.


text:
    Freddie Lee BENNETT, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    July 1, 1975.
    Certiorari Denied by Supreme Court Sept. 22, 1975.

      Robert M. Stivers, Jr., Ronald E. Hedges, Knoxville, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Tom Jennings, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Knoxville, for defendant in error.
   OLIVER, Judge.

OPINION

On the 24th of September 1973, the Knox County grand jury returned two separate indictments against the defendant, one charging him with attempting to commit burglary by attempting to break and enter in the nighttime a motel room rented to one Richard Garrett, with the intent to commit larceny (TCA §§ 39-603, 39 — 901), and the other with unlawfully carrying a pistol with the intent to go armed (TCA § 39 — 4901). Without any indication of objection, the two cases were tried together since both were grounded upon a single event. Convicted in both cases, the defendant was sentenced to not less than two nor more than five years upon the attempted burglary charge, and to a fine of $50 for carrying a pistol. Represented here by the same two attorneys who represented him by appointment in his trial, the defendant has brought his cases to this Court by an appeal in the nature of a writ of error contesting the validity of his convictions and his sentence for the attempted burglary.

By his third and fourth Assignments of Error the defendant challenges the sufficiency of the evidence as to each of the convictions.

In summary, the evidence adduced by the prosecution established that the night of July 19 — 20, 1973, officers of the Knoxville Police Department established surveillance of the Magnolia Motel, suspecting that a burglary might be committed there. Officer Sands was in a room of the motel, looking through a slightly-opened door, from which position he could view the entrances to the rooms on one wing of the L-shaped building. The motel was well lighted by electric lamps in front of the rooms.

About 3:00 a. m., Officer Sands saw a black male, whom he identified as the defendant, approach the row of rooms from the far end of the building. The defendant peered through the window of each of the rooms, and when he got to room number 10 (the third in the row of rooms) he first looked through the window and then went to the door and put his left hand into his pocket and withdrew it. He then bent down next to the door, placed his right hand on the door knob, and made a “jiggling” motion of the knob with his left hand. Observing all of this, Officer Sands called his superior, Captain Patty, on his portable radio. When the dispatcher asked him to repeat his message, his radio made a loud blaring sound. The defendant then stood up suddenly, removed his hands from the door knob, and pulled something out from under his belt and threw it toward shrubbery behind him. He then ran and was cornered and captured almost immediately in the alley behind the motel.

The object which Officer Sands saw the defendant take from his belt and throw into the bushes was dark colored and appeared to be five or six inches long, but this officer did not get a sufficient view of it to tell what it was. So Officer Sands asked Officer Dunaway to look in the area where the object had landed, and there, beside a bush some 10 feet from the entrance to room number 10, he found a loaded .22 caliber blue steel pistol. Later test firing by the police demonstrated it to be in working order, although it was dirty.

It was stipulated that room number 10 of the motel was rented to Richard Garrett on the night in question and that no one else was invited or given permission to enter that room that night. Through inadvertence no fingerprints were taken from the door knob or the pistol, the investigating officer assuming they had already been dusted for prints.

Testifying in his own behalf, the defendant said that in the Clover Leaf Club near the motel he heard earlier in the evening that a wine-drinking and marijuana-smoking party was being held at the motel by some persons unknown to him; that no one is invited and “Everybody goes there,” and he went looking for the party at the motel and walked down the row of rooms hoping to see or hear in which room it was in progress; and that when he neither heard nor saw any party, he turned and started walking back to the far end of the motel and heard a door slam and saw a policeman running toward him. He claimed that he did not peep into any of the rooms but “might have turned my head that way,” that he never touched the door knob of room 10, that he did not hear any radio call, and that he did not at any time have the gun found in the bushes and that he did not throw it there.

The defendant’s third Assignment assails the sufficiency of the evidence to convict him of an attempt to commit a felony, particularly putting in issue whether the State proved the necessary intent to sustain his conviction for that offense. In 1 Wharton’s Criminal Evidence (13th Ed.) § 6, p. 5, the rule is stated that: “By the nature of things, some elements of an offense can be established only by circumstantial evidence, such as the defendant’s knowledge or intent.”

From the nature of the defendant’s actions at the door to room 10 of the motel, his peering through the windows of the other rooms, his flight when he became aware of the presence of others nearby by hearing the noise of the policeman’s radio, and his patently flimsy and specious explanation of his presence and actions at that time and place, the jury concluded, and justly so, that his burglarious intent was plainly demonstrated.

Our Supreme Court has recently spoken of the elements essential to constitute an attempt to commit a crime. In Hall v. State, 490 S.W.2d 495 (Tenn.S.Ct.1973), the Court said:

“An attempt to commit a crime requires three elements: (1) the intent to commit a specific crime; (2) an overt act; and (3) failure to consummate the intended crime. 1 Wharton, Criminal Law and Procedure, § 71 at 151 — 152 (1957). It is a general proposition of the criminal law, however, that ‘circumstantial evidence may determine . . . such facts or elements as the existence of an intent .’ 3 Wharton, Criminal Evidence § 980 at 467-468 (1955). In fact, intent can rarely be shown by direct proof and must, necessarily, be shown by circumstantial evidence. While our cases say that all elements of a crime can be proved by circumstantial evidence, McClary v. State, 211 Tenn. 46, 362 S.W.2d 450 (1962); Smith v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959); Marable v. State, 203 Tenn. 440, 313 S.W.2d 451 (1958), we have no case directly on the effect of such facts as were proved in this case.
“In State v. Morelock, 164 N.W.2d 819 (Iowa 1969), the defendants were charged with attempt to break and enter a business establishment with intent to commit larceny. The evidence showed that when apprehended the defendants were attempting to gain illegal entry into a closed business establishment, they had damaged the door and lock by employing force, and they were apprehended at a time when entry was almost effected. They had in their possession gloves, a flashlight, a screwdriver, and a crowbar. The court held that the intent to steal could be inferred from the actual breaking and entering of a building which contains things of value or from an attempt to do so. A sample of other cases so holding is as follows: People v. Nelson, 89 Ill.App.2d 84, 233 N.E.2d 64 (1967); State v. McClelland, 164 N.W.2d 189 (Iowa 1969); State v. Jones, 143 Mont. 155, 387 P.2d 913 (1963); State v. Smith, 8 Ohio Misc. 148, 221 N.E.2d 627 (1966); Hutchinson v. State, 481 S.W.2d 881 (Tex.Cr.App.1972).
“These and other authorities warrant us in stating as a general proposition that where one is apprehended, attempting forcibly, or with present means of force, to gain illegal entry into a residence or a building in which there is property which is the subject of larceny, a jury would be warranted in inferring, in the absence of an acceptable excuse, that the entry was made, or attempted, with intent to commit larceny.”

See also: Long v. State, 478 S.W.2d 919 (Tenn.Crim.App.1972).

The defendant’s fourth Assignment questions the sufficiency of the evidence to warrant and sustain the verdict of the jury finding him guilty of carrying a pistol with the intent to go armed. Obviously the jury was satisfied beyond a reasonable doubt, as we are, that the evidence that the defendant threw an object into the bushes and a pistol was found where the object landed was sufficient to establish that he was carrying the pistol at that time and place.

By the express terms of the statute in question (TCA § 39-4901), the offense proscribed is carrying a pistol or revolver or other specified weapon with intent to go armed. That is the gravamen of the offense. Without the intent or purpose of being or going armed, the offense described in this statute cannot be committed. Liming v. State, 220 Tenn. 371, 417 S.W.2d 769 (1967). It is necessary in such cases for the State to prove the accused’s intent and purpose in carrying the weapon was to be and go armed, because the mere act of doing so may be lawful and does not establish criminal intent and does not create a presumption of guilt and does not deprive him of his presumption of innocence. Liming v. State, supra.

However, the necessary intent to support a conviction for carrying a weapon with the intent to go armed may be proved by the circumstances surrounding the carrying of the weapon. As the Court stated in Hill v. State, 201 Tenn. 299, 298 S.W.2d 799 (1957), “We gather the purpose of going armed from the facts of each particular case.” In the present case, upon the facts and circumstances shown in the proof, the jury was well warranted in finding that the defendant was carrying the pistol with the intent of going armed, intending to use it in the burglary.

Considered in the light of the historic rules governing appellate review of the evidence in criminal cases when its sufficiency is challenged, to which we are bound to adhere, Webster v. State, 1 Tenn.Crim.App. 1, 425 S.W.2d 799; McGill v. State, 4 Tenn. Crim.App. 710, 475 S.W.2d 223, we cannot say that the evidence preponderates against the verdict of the jury and in favor of the defendant’s innocence in either case.

The alleged error raised in the defendant’s first Assignment is based upon the above-mentioned incident when Officer Sands told Officer Dunaway to examine the area in the bushes where the gun was found. When Officer Dunaway was testifying and started to relate what Officer Sands said to him, the court sustained defense counsel’s objection and added the admonishment, “Don’t say what somebody else said.” Officer Dunaway then testified that after talking with Officer Sands, he found the above-described gun a few feet from room 10 of the motel. On cross-examination of this witness, defense counsel interrogated him in detail and by use of a diagram brought out that he found the pistol lying beside a bush about 10 feet from the door of room 10 and that the weapon, including the inside of the barrel, was in a dirty condition. On re-direct examination, over defense objection, Officer Dunaway answered affirmatively when asked if Officer Sands directed him to go to a particular place, and said that was where he found the weapon.

It is claimed that this instruction by Officer Sands was inadmissible hearsay.

Hearsay testimony has been defined many times by text writers and the courts. We quote some of them.

“Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” McCormick, Law of Evidence § 225, p. 460.
“Hearsay evidence does not derive its value solely from the credit to be given to the witness testifying, but rests in part on the veracity and competence of some other person. It is evidence offered in court by a witness which is based not on his own knowledge, but on what some other person has stated, and the statement is offered to show the truth of its content.” 2 Wharton’s Criminal Evidence (ISth Ed.) § 265, pp. 8-4.

One of the cases cited as authority by Wharton is Argetakis v. State, 24 Ariz. 599, 212 P. 372, in which that Court said:

“The ultimate test as to whether or not a statement is hearsay is whether the witness may be cross-examined concerning the fact about which he testifies.”

See also: Paine, Tennessee Law of Evidence §§ 47-49.

Since a mere instruction or request or order by one person to another to do something obviously is not a statement of fact, testimony by a witness that he heard the instruction or request or order cannot without more be hearsay. It depends in no way on the veracity or credibility of the out-of-court declarant; it merely relates the fact that the other person made the statement, and makes no assertion with reference to its truth and is not offered for that purpose. Upon the same familiar principle, no hearsay rule is involved in admitting a newspaper in evidence to prove only that a certain article or advertisement appeared therein. This Assignment is untenable.

Also unfounded is the second Assignment, by which the defendant complains that the trial court erroneously failed to grant his motion for a mistrial because the Assistant District Attorney General asked him on cross-examination: “Now, Mr. Bennett, you’re the same Freddie Lee Bennett that was convicted here in this Court on the 12th of February, 1973 involving an incident in which you broke into room number nine of the Magnolia Motel and was convicted of armed robbery and rape?” The Court sustained defense counsel’s objection and excused the jury during argument on the motion for a mistrial, at the conclusion of which the court overruled that motion, then reminded the jurors that the defendant did not answer that question and instructed them to “completely disregard the question and draw no implications whatsoever from it.” Thus, the trial judge’s instruction to the jury cured any possible error committed by the Assistant District Attorney General in asking the question. For there is a presumption that the jury does not disregard the court’s instructions not to consider inadmissible evidence. O’Brien v. State, 205 Tenn. 405, 326 S.W.2d 759; Sullivan v. State, 513 S.W.2d 152 (Tenn.Crim.App.1974); Klaver v. State, 503 S.W.2d 946 (Tenn.Crim.App.1973); Howard v. State, 501 S.W.2d 573 (Tenn.Crim.App.1973).

Finally, the defendant complains about the sentence assessed by the jury in the attempted burglary case. He insists that sentence “shows a complete disregard for the facts of the case, and a highly prejudicial decision made on factors not involved in the proof in the cause.” In other words, the defendant is saying, in effect, that sentence was so excessive as to show prejudice and malice and unaccountable caprice on the part of the jury. That sentence is authorized by TCA § 39-603, the statute upon which the attempted burglary indictment was based. Where the sentence imposed is within the applicable statutory limits of punishment, a claim that the jury was corruptly motivated by passion, prejudice and caprice must be rejected. Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1; Headrick v. State, 519 S.W.2d 403 (Tenn.Crim.App.1974); Howard v. State, 506 S.W.2d 951 (Tenn.Crim.App.1973); French v. State, 489 S.W.2d 57 (Tenn.Crim.App.1972); Snowball v. State, 477 S.W.2d 240 (Tenn.Crim.App.1971).

Affirmed.

DUNCAN, J., who was sitting as a special judge of this Court by designation of the Chief Justice of the Supreme Court, did not participate in the hearing and decision of this case.

MITCHELL, J., concurs.