Burdine v. Kennon

• Decision Date: 28 February 1948
• Citation: 209 S.W.2d 9,186 Tenn. 200
• Parties: BURDINE v. KENNON et al.
• Court: Tennessee Supreme Court

209 S.W.2d 9

186 Tenn. 200

BURDINE v. KENNON et al.

Supreme Court of Tennessee.

February 28, 1948

Appeal from Chancery Court, Davidson County; Thos. A. Shriver Chancellor.

Suit in equity by E. L. Burdine against Rose Scott Kennon and husband. From a decree sustaining defendants' plea in abatement and dismissing the bill, complainant appeals.

Reversed and remanded.

Burt Francis, of Nashville, for appellant.

Levine & Levine and Keefe & Norman, all of Nashville, for appellees.

TOMLINSON, Justice.

Burdine appellant here, filed in Davidson County Chancery his bill which was sworn to. It was assumed by the Chancellor in his disposition of the case that the character of the bill was such as to require Burdine's personal oath. In so far as it concerns the single question of law raised upon this appeal, we assume (without deciding) that the nature of the bill required the personal oath of the complainant.

Previous to the filing of this bill Burdine had served a term in a Federal Penitentiary as a result of a conviction in a United States District Court in Kentucky of that federal statutory offense commonly called counterfeiting. Under the federal statute conviction of this offense does not render the offender infamous.

Mr. and Mrs. Kennon, appellees here, plead in abatement to this bill that since Burdine had been convicted in the Federal Court of counterfeiting he is, therefore, 'under section 11762 of the code' of tennessee 'rendered infamous and disqualified to give evidence and * * * is also disqualified in filing a sworn pleading in this cause.'

This appeal is from the decree of the Chancellor holding 'that the plea in abatement is well taken and should be sustained and the bill dismissed'.

Counterfeiting is made a violation of the criminal law of Tennessee by chapter 23 of the Acts of 1829, carried into the code at sections 10981 et seq. One who is convicted of counterfeiting is by code section 11762 disqualified to give evidence. This code section is a part of the same chapter 23 of the Acts of 1829. Aside from any other consideration, this necessitates a conclusion that the offense of counterfeiting for which the offender is rendered infamous by code section 11762 is the counterfeiting denounced by code section 10981 et seq.

Burdine was not convicted of violating code section 10981 et seq.; nor was he convicted in a Tennessee Court; nor for an offense committed in Tennessee. He was convicted in the Court of another jurisdiction for the violation of its criminal law against counterfeiting. So, the question for decision here is whether under our code section 11762 a conviction in the Courts of another jurisdiction for the same act denounced by our statute, and specified in section 11762 as being an infamous crime, renders the party so convicted disqualified to give evidence in the Courts of Tennessee.

Code section 11762 provides that upon conviction of the crime of counterfeiting it 'shall be part of the judgment of the court that the defendant be infamous * * * and * * * disqualified to give evidence'. This legislative direction that upon conviction the court shall make as a part of its judgment an adjudication of infamy necessarily refers to the judgment of a criminal court of Tennessee. Our legislature, of course has no authority to direct the courts of another jurisdiction what to include in its judgments, and would not presume to do so. The adjudication of infamy could not be made a 'part of the judgment' except in connection with the judgment after trial convicting the defendant of counterfeiting. Code section 11762, therefore, necessarily means that upon conviction of the crime of counterfeiting in a court of Tennessee it 'shall be part of the judgment' of that Tennessee Court that the defendant be disqualified to give evidence.

Therefore if Burdine is by code section 11762 disqualified to give evidence in a Tennessee Court by reason of his conviction in the Court of another jurisdiction of counterfeiting, then it must, per force, be by our reading into code section 11762 the expression 'or of any other jurisdiction' so as to make code section 11762 read, in substance, that 'upon conviction of the crime of * * * counterfeiting in the Courts of Tennessee or in the courts of any other jurisdiction the defendant * * * shall be disqualified to give evidence'. So, finally, the determinative question here is whether this court is authorized to liberalize code section 11762 by reading such provision into that code section upon the theory that it is implied.

The dissenting opinion written by Mr. Justice DeHaven for himself and Mr. Justice Neil in the case of Cambria Coal Co. v Teaster, 179 Tenn. 472, 167 S.W.2d 343, 344, upon a matter unrelated to the question here called attention to the fact that code section 11762 'is highly penal and must, therefore, be strictly construed'. No doubt but that among the cases which they had in mind in making that statement is our case of Wilcox v....