Burum v. State

• Decision Date: 05 May 1969
• Citation: 445 S.W.2d 946,1 Tenn.Crim.App. 508
• Parties: Leon BURUM, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 946

445 S.W.2d 946

1 Tenn.Crim.App. 508

Leon BURUM, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

May 5, 1969.

Certiorari Denied by Supreme Court Sept. 15, 1969.

Edgar R. Bowers, Rockwood, for plaintiff in error.

George F. McCanless, Atty. Gen., Robert F. Hedgepath, Asst. Atty. Gen., Nashville, James P. Watkins, Dist. Atty. Gen., Loudon, for defendant in error.

OPINION

OLIVER, Judge.

Leon Burum, the plaintiff in error here and defendant below, indigent and represented by court-appointed counsel, was convicted in the Criminal Court of Roane County of receiving and concealing stolen property and was sentenced to serve not less than three nor more than five years in the State Penitentiary. His motion for a new trial being overruled, he prayed and was granted and has perfected an appeal in the nature of a writ of error to this Court.

The indictment was in three counts. The first charged the defendant with breaking and entering the dwelling house of John H. Johnson in the nighttime with intent to commit larceny. In the second count he was charged with stealing Johnson's television, record player, watch, and money, of the aggregate value of $250. The third count, upon which the defendant was convicted, charged him with receiving and concealing the same property and alleged that it had been stolen and that he knew it had been stolen from Johnson.

The jury acquitted the defendant under a separate three-count indictment in which he was charged with the third degree burglary of a business house belonging to Robert Justice, with larceny of property therein which belonged to Justice, and with receiving and concealing the same property.

In his motion for a new trial and by his third Assignment of Error here the defendant complains of the action of the trial court in consolidating the two cases for trial and overruling his motion for a separate trial of this case made at the outset. The defendant's motion alleged, and the record shows, that separate attorneys were appointed to represent him in the two cases. He also alleged that the defense theories of his attorneys were different and incompatible with respect to the two cases; that the two cases involved different facts and evidence; that there was no connection between the two alleged cases; that the offenses charged in the two indictments were alleged to have occurred in two separate municipalities located twenty miles apart; 'that there is no apparent relationship between the two separate prosecuting witnesses in said cases; that there is no intertwining nor interlocking of material facts in the two aforementioned cases; and that your defendant would be prejudiced by a consolidated trial of the two said cases, in that the jury would be unable to disregard the evidence introduced by the State to support the prosecution of one case from the evidence so introduced to support the prosecution of the other, even though irrelevant and immaterial to the other said case'; and that for these reasons a consolidated trial of the two cases would be a denial of the defendant's constitutional right to a fair trial by an impartial jury.

In our view the question thus presented is determinative of this appeal. The record shows that John H. Johnson lived in Harriman, Tennessee and that the burglary of his house and the theft of his property occurred sometime between August 25 and 28, 1967, during his absence; and that the burglary of the business house of Robert Justice and the theft of his property occurred in Oliver Springs, Tennessee during the night of August 26, 1967. Thus, the two indictments consolidated by the court and tried together over the objection of the defendant charged him with wholly separate and unconnected and unrelated felonies.

In Bruce v. State, 213 Tenn. 666, 378 S.W.2d 758, the trial court required the defendant, over his objection, to stand trial before the same jury upon two indictments charging separate and distinct crimes, not arising out of the same or related acts nor provable by the same evidence. The defendant was convicted of receiving stolen property under one indictment charging larceny and receiving stolen property, which grew out of the alleged theft of an automobile. He was acquitted by directed verdict upon the other indictment charging assault and battery upon a named person approximately three months after the alleged automobile theft. Holding that the consolidation of those indictments for trial at the same time before the same jury, over the defendant's objection, was prejudicial error, the Court said:

'The matter of consolidating separate indictments for trial is procedural and generally this is a matter within the discretion of the trial court.

'The State cites the recent case of Bullard v. State, 208 Tenn. 641, 348 S.W.2d 303. In the Bullard case the trial court ordered, over objection of defendant, two indictments consolidated for trial, one charging violation of the bad check law and the other public drunkenness. These indictments charged separate crimes not arising out of the same or related facts nor were they provable by the same evidence. This Court in affirming this case did no more than apply the harmless error rule. Section 27--117, T.C.A. The State admits in their brief such was the holding in the Bullard case and insists the case at bar should be affirmed for the same reason.

'We have not been cited nor have we been able to find any Tennessee case holding directly on the question at issue here. Mr. Justice Tomlinson in Bullard v. State, supra, discussed at some length the issue involved here and stated the majority view as given in 59 A.L.R.2d beginning at page 843, as follows:

'In any case, the propriety of trying together separate indictments or informations against the same accused over his objection rests in the sound discretion of the trial court, which has the obligation to safeguard not only the rights of the government but also of the accused and to see that such rights are not jeopardized.' 208 Tenn. 645, 348 S.W.2d 305 'Mr. Justice Tomlinson stated the...