Burton v. State

• Decision Date: 05 March 1964
• Citation: 214 Tenn. 9,377 S.W.2d 900,18 McCanless 9
• Parties: Irvin D. BURTON and Foster Brandon, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error. 18 McCanless 9, 214 Tenn. 9, 377 S.W.2d 900
• Court: Tennessee Supreme Court

Page 900

377 S.W.2d 900

Irvin D. BURTON and Foster Brandon, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.

18 McCanless 9, 214 Tenn. 9, 377 S.W.2d 900

Supreme Court of Tennessee.

March 5, 1964.

Rehearing Denied April 8, 1964.

Armstrong & Santore, Greeneville, for plaintiffs in error.

George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Nashville, for defendant in error.

HOLMES, Justice.

The plaintiffs in error, hereinafter referred to as defendants, were convicted of burglary and larceny. Each defendant was sentenced to confinement in the State Penitentiary for not less than three years nor more than ten years for the offense of burglary, and each was sentenced to serve not less than three years nor more than five years for the offense of larceny, the sentences to run concurrently. The defendants were given credit for the time held in custody on these charges. In addition to the sentence imposed upon the defendants, a judgment in the amount of $1,661.04 was rendered against each of the defendants pursuant to T.C.A. Secs. 40-2716 and 40-2717, that being the amount fixed by the jury as the value of property stolen and destroyed by the defendants. The defendants duly filed their motion for a new trial and have perfected their appeal in this Court and assigned errors.

While their are no assignments of error relating to the weight of the evidence, we briefly state the facts which gave rise to the prosecution. On the night of February 17, 1956, the Anderson Super Market in Greeneville, Tennessee was burglarized. A safe in the store was opened by the use of drills and other tools. In excess of $1,100.00 in money was taken from the safe. Several tool marks were left on the safe. A 1956 Pontiac automobile, with Indiana license plates, was noticed by a police officer of Greeneville at about 1:35 A.M., on February 18, 1956, and again at about 4:00 A.M., that morning. This car was gone when the officer went to check it again before going off duty about 7:00 A.M. Another police officer had seen this same car between 9:00 and 10:00 P.M., on February 17, 1956 about five or six hundred yards from the super market. The defendant, Foster Brandon, was in the car at that time together with another person that the officer could not identify.

The defendants were apprehended in Indiana during the afternoon of February 18, 1956 by an Indiana state policeman, who had received a description of the automobile and other information over the radio in his patrol car. A number of items were taken from the automobile which were later identified with the burglary. Tool marks found on the safe were determined to have been made by tools and drills found in the defendants' automobile. Other evidence connecting the defendants with the crime was found. A total of $1,141.00 was found concealed in the automobile.

On March 1, 1956 the defendants were convicted of a criminal offense in the state of Indiana and were confined there until August 21, 1956, when they were released on bond pending their appeal from that conviction. The defendants remained in Indiana on bond until July 5, 1957, when they went to Maryland. The record does not show when their Indiana conviction was affirmed. The defendants were arrested by the Federal Bureau of Investigation in Maryland and returned to Indiana on August 23, 1958. They were confined in prison in Indiana from that date until August 31, 1962. The indictment in the case before the Court was returned by the Greene County, Tennessee, Grand Jury on September 5, 1962. The defendants resisted extradition from shortly after their release from the Indiana penitentiary until February 1963, when they were returned to Tennessee. The trial of this case commenced on May 15, 1963.

The defendants filed a plea in abatement in the Trial Court asserting, among other things, that they were denied a speedy trial, as guaranteed by the Sixth Amendment to the United States Constitution and Article 1, Section 9 of the Constitution of Tennessee.

The first two assignments of error complain of the action of the Trial Court in holding defendants' constitutional right to a speedy trial was not violated. From what has been stated above, it is apparent that from a few days following the burglary of the Anderson Super Market until September 1, 1962 the defendants were either confined in a penal institution in Indiana or were on bail pending their appeal from a conviction in Indiana, or were fugitives from the Indiana authorities. Tennessee had no absolute right to extradite defendants under such circumstances. The executive power of the asylum state has the right to determine whether or not a person charged with a crime in that state as well as in another state shall be held in the asylum state until he has completed serving his sentence there. State ex rel. Brown v. Grosch, 177 Tenn. 619, 152 S.W.2d 239.

In Raine v. State, 143 Tenn. 168, 226 S.W. 189, this Court held that a defendant was not denied his right to a speedy trial under the following facts: The defendant was indicted February 10, 1914. He was incarcerated in a federal penitentiary on February 8, 1915, and was released from the federal penitentiary October 17, 1918. The trial was held in the State Court June 30, 1919. In holding that the defendant was not denied his constitutional right to a speedy trial under the circumstances, the Court, at Page 183 of 143 Tenn., at page 194 of 226 S.W., stated:

'It is finally, however, insisted by counsel for the defendant that the state, had it attempted so to do, could have secured the defendant from the federal prison and put him to trial in Tennessee on the ground that the comity existing between different sovereignties would have warranted and sanctioned this course. We have been cited to no authority which even by analogy so holds, but the uniform rule with reference to one state turning over a prisoner held for violation of its laws, and prior to the expiration of his sentence, for trial in the demanding state, has been to the contrary. Matter of Troutman, 24 N.J.Law, 634; Taintor v. Taylor, 36 Conn. 242, 4 Am.Rep. 58; Ex parte Rosenblat, 51 Cal. 285; Spear on Extradition, 442; Clark's Criminal Procedure, 63.'

Furthermore, it is stated in 22A, C.J.S. Criminal Law Sec. 467(4), at Page 26:

'The point of beginning of the time for bringing accused to trial is the commencement of the prosecution against him or the beginning of the time for bringing accused to trial is the date of arrest.'

Our own case of May v. State, 192 Tenn. 53, 237 S.W.2d 550, is cited as authority for the above quoted text. In the May case, the accused was not indicted for the offense of which he was convicted until after he had served a sentence for another crime committed at about the same time as the crime for which he was convicted in that case. The Court held on such facts that accused was not denied his right to a speedy trial.

This Court has defined the right to a speedy trial in Arrowsmith v. State, 131 Tenn. 480, 175 S.W. 545, L.R.A.1915E, 363 as follows:

'A 'speedy trial,' so guaranteed, means a trial as soon after indictment as the prosecution can, with reasonable diligence, prepare for it, without needless, vexatious, or oppressive delay, having in view, however, its regulation and conduct by fixed rules of law, any delay created by the operation of which rules does not in legal contemplation work prejudice to the constitutional right of the accused.' (Emphasis supplied)

The assignments of error by which defendants contend they were denied their constitutional right to a speedy trial are overruled.

By assignment of error number three, defendants contend the Trial Court committed error in not allowing defendants to cross examine the prosecutor, the Chief of Police of the City of Greeneville, who appears to be the only witness who testified before the Grand Jury, in an effort to show substantial portions of his testimony were hearsay. This same contention was made in the third ground of the plea in abatement filed by these defendants.

This identical question was before the Supreme Court of the United States in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397, in which that Court stated:

'We granted certiorari in this case to consider a single question: "May a defendant be required to stand trial and a conviction be sustained where only hearsay evidence was presented to the grand jury which indicted him?"' 350 U.S. at 359, 76 S.Ct. at 406, 100 L.Ed. 397.

In that case, upon being indicted, the defendant promptly filed a motion for inspection of the minutes of the Grand Jury and for a dismissal of the indictment, which motion was supported by affidavit that there could have been no competent evidence before the Grand Jury that indicted him. This motion was denied. In reviewing the case, the United States Supreme Court pointed out that neither the Fifth Amendment to the Federal Constitution nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act. At 363 and 364 of 350 U.S., 408 and 409 of 76 S.Ct., 100 L.Ed. 397, that Court held:

'If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. * * * An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. * * *

'* * * In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring about a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance...