Bullard v. State
| Decision Date | 10 March 1961 |
| Citation | 348 S.W.2d 303,208 Tenn. 641,12 McCanless 641 |
| Parties | , 208 Tenn. 641 Henry BULLARD v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
Vernon Neal, Cookeville, for plaintiff in error.
Thomas E. Fox, Asst. Atty. Gen., for the State.
Bullard appeals from a conviction (1) upon an indictment charging a violation of the Bad Check Law with punishment fixed at 90 days in jail and (2) upon an indictment charging public drunkenness with punishment fixed at a fine of $10 and a suspended sentence of 60 days in the workhouse upon payment of the fine and costs.
There is no bill of exceptions. There is, however, in the technical record a minute identifying the aforementioned bad check and public drunkenness indictments and another public drunkenness indictment which does not appear in the record, and as to which the action of the jury is not shown. This order recites this:
'This was done at the time of trial of these cases and should have been entered at that time, but is entered now for then.'
Apparently the defendant was acquitted as to the second public drunkenness indictment or there was a mistrial.
The brief filed in this Court recites that no bill of exceptions was filed 'because said defendant feels that the technical record * * * showing these cases were tried together over the objection of the defendant is sufficient to show error in permitting said cases which the technical record shows arose on different dates to be considered over the objection of the defendant'. This action of the Trial Court was made a ground of the motion for a new trial and is in this Court the only error assigned.
The position of plaintiff-in-error is necessarily that the Court erred in ordering, over his objection, these three indictments consolidated and tried together, though the indictments upon their face show by their dates and the nature of the charges that they are for distinct offenses not provable by the same evidence, and in no sense resulting from the same series of acts.
Since the second mentioned public drunkenness indictment is not in the record, this Court cannot have even an idea as to whether that alleged drunkenness resulted from the same series of acts as resulted in the public drunkenness indictment upon which he was convicted. That alleged indictment and its consolidation with the other two indictments for trial will not be further noticed in the discussion of the merits of the plaintiff-in-error's contention.
The brief submitted in behalf of Bullard cites no authorities in support of his insistence that the aforementioned action of the Court was error. Counsel, writing that brief, says that he 'feels' that this action was error. Such a reaction to such not usual trial procedure is understandable.
That line of cases wherein it is held permissible for a single indictment to contain separate counts charging different degrees of the same offense are not in point, notwithstanding the fact that each count of an indictment is regarded in law as being a separate indictment. That rule is not in point because the separate counts contained in the single indictment vary only in degree as to the offense charged, and resulted from a same series of acts and are provable by the same evidence.
The case of McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 33, 41 L.Ed. 355, 357, was a case wherein two separate felonies in no way connected with each other were consolidated for trial. The Court in holding this to be error said:
'While the general rule is that counts for several felonies of the same general nature, requiring the same mode of trial and punishment, may be joined in the same indictment, subject to the power of the court to quash the indictment or to compel an election, such joinder cannot be sustained where the parties are not the same, and where the offenses are in nowise parts of the same transaction, and must depend upon evidence of a different state of facts as to each or some of them.'
There is the Alabama case of Lucas v....
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State ex rel. Gann v. Henderson
...378 S.W.2d 758; Epstein v. State, 211 Tenn. 633, 366 S.W.2d 914; Hardin v. State, 210 Tenn. 116, 355 S.W.2d 105; and Bullard v. State, 208 Tenn. 641, 348 S.W.2d 303. In Bruce v. State, supra, we applied these rules and reversed because we thought under the facts there presented that the two......
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State v. Shirley
...one offense was "entirely different from the evidence . . . [establishing] the other offense charged." See Bullard v. State, 208 Tenn. 641, 645, 348 S.W.2d 303, 305 (1961). Since the effective date of the Rules of Criminal Procedure on July 13, 1978, however, the discretion of the trial cou......
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State v. Johnson
...(1958) (“Dransfield”). FN6. Bruce v. State, 213 Tenn. 666, 667, 670, 378 S.W.2d 758, 759–60 (1964). FN7. See Bullard v. State, 208 Tenn. 641, 644–46, 348 S.W.2d 303, 305 (1961); see also Commonwealth v. Bickum, 153 Mass. 386, 26 N.E. 1003, 1003 (1891); Dransfield, 59 A.L.R.2d at 858–59 (cat......
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Spicer v State
...proof and again in his motion for new trial, he thereby properly preserved his objection for appeal. 8 Cf. Bullard v. State, 208 Tenn. 641, 645-46, 348 S.W.2d 303, 305 (1961) (stating that "the propriety of trying together separate indictments or informations against the same accused over h......