Bishop v. State

• Decision Date: 03 February 1956
• Citation: 3 McCanless 428,287 S.W.2d 49,199 Tenn. 428
• Parties: , 199 Tenn. 428 Robert J. BISHOP v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 49

287 S.W.2d 49

3 McCanless 428, 199 Tenn. 428

Robert J. BISHOP v. STATE of Tennessee.

Supreme Court of Tennessee.

Feb. 3, 1956.

John C. Robertson, Memphis, for plaintiff in error.

Knox Bigham, Asst. Atty. Gen., for the State, defendant in error.

PREWITT, Justice.

The defendant below, Robert J. Bishop, was convicted of larceny and sentenced to three years in the State Prison.

It is insisted that the trial court committed reversible error in failing and refusing to instruct the jury with reference to the law of circumstantial evidence. It is conceded that all evidence offered by the State was circumstantial in its nature, but the State insists that no special request having been tendered by the defendant or his counsel he cannot now avail himself of this error.

Our leading case on this subject is Webb v. State, 140 Tenn. 205, 203 S.W. 955, 15 A.L.R. 1034. In that case the Court held that in the prosecution of a murder case, where the only incriminating evidence is circumstantial, it is fundamental error to fail to instruct on the nature of circumstantial evidence and the general rules of law governing it, though the defendant tenders no special request. Circumstantial evidence differs from direct evidence and consists of proof of collaterial facts and circumstances from which the existence of the main fact may be deduced according to reason and common experience of mankind.

As to the fundamental character of such evidence, fair analogy is found in cases involving failure to charge on reasonable doubt, in which event, without request made, there is reversible error. Frazier v. State, 117 Tenn. 430, 100 S.W. 94; Barnards v. State, 88 Tenn. 183, 12 S.W. 431.

In such a case the main fact is based on circumstantial evidence, and there is no direct testimony connecting the accused with the fact.

The error complained of is of a class denominated as fundamental and goes, essentially to the basis of the accused's theory for defense.

In Smith v. State, 2 Tenn.Cas. 621, it was held that in such case if an additional instruction upon circumstantial evidence be requested, it is reversible error to refuse it.

In Barnards v. State, 88 Tenn. 183, 12 S.W. 431, the rule recognized the charge upon the doctrine of reasonable doubt not superseding the necessity of giving to the jury the rules applicable to circumstantial evidence.

It was pointed out in the Webb case, supra, that the direct question there involved was failure to charge circumstantial evidence where the evidence in such case was wholly of that character. See Michie on Homicide 1398; 23 C.J.S., Criminal Law, § 1250, p. 809.

However, the State insists that in the Webb case the Court overlooked the holding in the case of State v. Becton, 66 Tenn. 138, at page 146, wherein the Court said:

'The Judge in this case failed to perform this duty. But can this be assigned as error, no request to charge further having been made?

'The act of 1873, providing for the delivery of charges in criminal cases in writing, by sec. 3 provides: 'If the attorneys on either side desire further instructions given the jury, they shall write precisely what they desire the Judge to say further. In such case the Judge shall reduce his decision on the proposition to writing, and also read the same to the jury, without one word of oral comment, it being intended to prohibit judges wholly from making oral statements to juries in any case involving the liberties and lives of citizens.'

'We have held the first part of the statute to be imperative on the judge, and failure to comply, without express waiver, a ground for reversal. We do not see how we can avoid holding this section to be equally imperative, and that a judge will not be in error in failing to give further instructions than those given in writing, when no request is made in compliance with the express mandate of the statute.

'The language of each section is equally the mandate of the legislative body--the supreme law-making power in the State. Within the scope of the constitutional powers of that body, it may prescribe whatever rule is deemed best. All, whether citizens, officials or courts, must bow to the mandate.

'In support of this view, we may add, that if proper instructions were asked for verbally, and not as prescribed by the statute, the judge, by the terms of the law, would not be bound to give them, for he is only required to 'reduce his decision on the proposition to writing, and give it to the jury, when precisely what is required is written out and presented to him for such decision.' If this be true, then much less will he be in error for failure to charge when no request, either written or verbal, is presented.'

The State further insists the principle of the Becton case has been recently followed in Turner v. State, 188 Tenn. 312, at page 322, 219 S.W.2d 188, at page 193, wherein the Court said:

'No assignment of error on the Judge's charge to the jury, either for omission or inadequacy, will be considered unless a special request was tendered, pointing out the defendant's contention as to the error. Code, sec. 11750; State v. Becton, 66 Tenn. 138; Powers v. State, 117 Tenn. 363, 370, 97 S.W. 815.'

In Frazier v. State, 117 Tenn. 430, 100 S.W. 94, the conviction was reversed here when the trial judge failed to charge on the question of reasonable doubt even though no special request was made therefor.

In Pearson v. State, 143 Tenn. 385, 226 S.W. 538, it was held that in a prosecution for homicide, where the dying declaration of deceased was admitted as evidence, it was reversible error for the court to omit to instruct the jury on the weight to be given to such declaration, even though no request for such instruction was made.

We think in this same classification is, failure to instruct on the question of reasonable doubt, or on the weight to be given a dying declaration. We think this case belongs in a class denominated as fundamental and the failure to charge even without request is reversible error.

We think the act of 1873, Chapter 57, Tennessee Code Annotated, known as the Bobbs-Merrill Code, Section 40-2517 has no application here. This section provides:

'If the attorneys on either side desire further instructions given to the jury, they shall write precisely what they desire the judge to say further. In such case the judge shall reduce his decision on the proposition or propositions to writing, and read the same to the jury without one word of oral comment, it being intended to prohibit judges wholly from making oral statements to juries in any case involving the liberties and lives of the citizens.'

This Section was in existence for many years before the decision in Frazier v. State, supra, Webb v. State, supra, and Pearson v. State, supra. We think this section applies to matters not fundamental in their character, and where it can be generally understood that the fundamental defenses have been charged generally by the trial judge. But where the trial judge wholly fails to charge in felony cases on such matters as reasonable doubt, dying declaration, where the facts are admitted, and in felony cases where the State relies entirely upon the circumstantial evidence, these matters are fundamental and failure to charge even though not requested is reversible error. For a full discussion of a rule outside of Tennessee as well as in this State on this subject see Gardner v. State, 27 Wyo. 316, 196 P. 750, 15 A.L.R. page 1049 et seq.

The judgment of the lower court is reversed and this case is remanded for a new trial.

BURNETT, Justice (dissenting).

I most respectfully dissent from the majority opinion in this case. This opinion holds that it is reversible error for the trial judge to fail to charge the law with reference to circumstantial evidence when the...