Beeler v. State
| Decision Date | 11 December 1959 |
| Citation | 10 McCanless 160,332 S.W.2d 203,206 Tenn. 160 |
| Court | Tennessee Supreme Court |
| Parties | , 206 Tenn. 160 Roy Lee BEELER v. STATE of Tennessee. |
G. Edward Friar and Earl Leming, Knoxville, for plaintiff in error.
William D. Grugett, Asst. Atty. Gen., for the State.
The plaintiff in error was indicted on a four count indictment. The first three counts of this indictment charged burglary in the third degree while the fourth count charged the plaintiff in error with being an habitual criminal. A jury was impaneled and first tried the plaintiff in error on the first three counts, that is, whether or not he had committed burglary in the third degree. They found him guilty under these three counts and sentenced him to five years in the State penitentiary. Immediately after they had returned their verdict on the first three counts of the indictment the same jury was read the fourth count of the indictment which specifically charges three other separate and distinct convictions. After the proof was heard on this count of the indictment and the charge of the court the jury found him guilty of being an habitual criminal and he was sentenced accordingly to spend the rest of his natural life in the State penitentiary. From this conviction of being an habitual criminal the defendant has seasonably appealed, filed assignments and brief. Able arguments have been heard. We now have the matter for disposition.
The first six assignments are directed to the insufficiency of the State's proof on the habitual criminal count of the indictment. The argument based on those assignments is primarily pitched on the proposition that the State in its proof under the fourth count of this indictment failed to prove the conviction for burglary in the third degree which this jury had just returned. The argument is, and it is true, that the only proof offered by the State under this fourth count was three former convictions. These three former convictions were proved by a deputy clerk of the criminal court who by reference and reading from various minute books showed to the jury that Roy Lee Beeler had formerly been convicted of crimes which would bring him within the habitual criminal statute (Section 40-2801 et seq., T.C.A.). The proof on these three separate convictions was substantiated by various deputy sheriffs or former deputy sheriffs of Knox County who identified the plaintiff in error as the party convicted under these three former convictions. At the time the clerk read the minute book of these various convictions exception was made to his so reading and the trial court sustained this objection to the extent of providing that certified copies would be furnished for the record. These were furnished and are in the record.
As said previously the argument based around these assignments is to the effect that no fourth conviction was proved. The conviction had in this trial of burglary in the third degree was before the same jury who were sworn to try this plaintiff in error on this indictment, the first three counts being the burglary charge and the fourth count being the habitual criminal charge. It was not necessary to separately prove to this jury, who were sworn to try this whole thing, (this same jury had just convicted this plaintiff in error) this fourth charge.
The trial judge charged the jury in reference to this fourth count of the indictment that:
Then the trial judge specifically charges this jury by reading the various sections of the Code applicable to an habitual criminal and what the Code provides as to one being an habitual criminal and then charges them that these things must be proven to the satisfaction of the jury beyond a reasonable doubt. Then he enumerates the various things as set out in the Code, that is, that the defendant had been three times convicted of offenses which were defined by the Code Sections as read and that the plaintiff in error was the same identical person who had been 'heretofore convicted of the required number and character of offenses enumerated,' and that neither of the three prior convictions were for petit larceny, or for any offense punishable as petit larceny and that each of said three 'prior' convictions were for separate offenses committed at different times and on separate occasions. That 'upon the fourth conviction he may be regarded as an habitual criminal'. In other words the trial judge plainly and clearly charged the jury as to the applicable law, that is, that three requisite offenses had been committed on three separate times prior to the conviction of which they had just convicted him. It clearly seems to us that under such circumstances, there being no proof to the contrary, that there is sufficient and ample proof before this jury of the four requisite offenses to constitute the plaintiff in error an habitual criminal.
The next assignment is to the effect that the court erred in trying the case piecemeal, that is, in trying the plaintiff in error under the first three counts of the indictment for committing burglary in the third degree and then after a conviction thereon in trying the plaintiff in error for being an habitual criminal, a requisite of which to make him so was the conviction for which he had just been convicted. It seems to us that instead of the trial judge being criticized for this procedure that he was being overly fair with the accused. By thus proceeding the only evidence as heard on the first three counts was the evidence as to whether or not the plaintiff in error was guilty of the charge as made in these three counts of being guilty of burglary in the third degree. The plaintiff in error does not question this procedure, that is, of whether or not he was guilty of burglary in the third degree.
By thus trying the lawsuit the evidence of the past character of the plaintiff in error and the crimes that he had committed was not before the jury in their consideration of this charge, that of burglary in the third degree--the only thing that they had before them was whether or not he was guilty of the charge under these three counts of the indictment. Of course if the plaintiff in error had taken the witness stand in defense of these three counts of the indictment he would have been subject to cross examination as to other crimes when prior convictions had been charged because then it would be proper and a proper part of the State's case upon the trial of the principal offense and when one voluntarily testifies in his own behalf he could be cross examined as to prior convictions for the purpose of establishing that element, that is, of prior convictions as a part of the State's case. Commonwealth v. Fortier, 258 Mass. 98, 155 N.E. 8; Smith v. Commonwealth, 182 Va. 585, 30 S.E.2d 26, 153 A.L.R. 1150.
As to the method to which this matter was tried, that is, separating the burglary charge and the habitual criminal charge before the same jury, 25 Am.Jur., page...
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