Clark v. State
| Decision Date | 15 July 1964 |
| Parties | , 214 Tenn. 555 Felton N. CLARK v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
Sam Wallace, Nashville, for plaintiff in error.
George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Nashville, for the State.
The defendant, Felton N. Clark, was found guilty of an assault with intent to commit a felony in violation of § 39-603, T.C.A. For this offense his penalty was fixed at eleven months and twenty-nine days on the county road and to pay a fine of $500.00. From this conviction, he has appealed in error to this Court. His case is before us on the technical record only, there being no bill of exceptions. The case was not argued before this Court, and no assignments of error were filed in this Court; but we have considered the record before us, as is our duty in felony cases under the provisions of § 40-3409, T.C.A.
The technical record shows that after the indictment was returned charging the defendant with the violation of § 39-603, T.C.A., with an attempt to commit a felony, he appeared by counsel and filed a plea of not guilty. The charge of the court is in the technical record, and from it we reach the conclusion that the facts were heard pro and con on the matter before the jury returned its verdict, as above indicated.
The record shows that defendant was represented by able counsel at his trial. The motion for a new trial primarily raised the question that the evidence was insufficient to support the verdict. Obviously, this is a fact question where, in the absence of a bill of exceptions, the presumption certainly is that the evidence abundantly supports the findings of the jury against the defendant on the issue raised.
We have carefully reviewed this technical record and find no error therein. It results that we must affirm the defendant's conviction.
Counsel for plaintiff in error has filed herein a courteous, dignified and forceful petition to rehear in which he raises two questions that were not presented in the first instance, the case coming to us on the technical record. In our original opinion we determined that there was no error in the technical record.
The two questions now raised are (1) that the verdict of the jury finding the defendant guilty of an attempt to commit a felony did not specify what felony, and (2) a conviction to commit a felony under § 39-603, T.C.A., was not proper because the offense was predicated upon § 39-605, T.C.A., making an assault and battery with the attempt to have carnal knowledge of a female twelve years and upward, etc., a felony, which but for the statute, would be an attempt itself. We think that counsel for the petitioner may have had in mind § 39-606, T.C.A. After a thorough examination of the matter we are convinced that it would make no difference which of these Sections, that is, § 39-605, T.C.A., or § 39-606, T.C.A., counsel had in mind.
We think that the second question is sufficiently answered by our opinion in Jones v. State, 200 Tenn. 429, 292 S.W.2d 713, wherein we held that a defendant could be convicted of an attempt to commit rape under an indictment charging assault and battery with unlawful intent to commit rape. We think the statement just above made clearly warrants our conclusion that an indictment under either § 39-605 or § 39-606, T.C.A., includes an attempt to commit a felony under § 39-603, T.C.A. Since we fully discussed this matter in the Jones case, supra, we will not further comment on the question.
The other question now for the first time presented is...
To continue reading
Request your trial
-
Francis v. State
...upon which the trial court based his action is presumed to have been sufficient in the absence of a Bill of Exceptions. Clark v. State, 214 Tenn. 555, 381 S.W.2d 898. In the absence of such a record this court cannot say that the trial judge acted arbitrarily and abused his discretion to th......
-
Arendall v. State
...absence of a Bill of Exceptions, the presumption is that the evidence was sufficient to warrant and sustain the verdict. Clark v. State, 214 Tenn. 555, 381 S.W.2d 898. The same principle is clearly applicable Finally, in a letter addressed to a member of this Court, Marlowe raises the conte......
-
McDonald v. State
...of felony he is also on trial for all its lesser included offenses. Strader v. State, 210 Tenn. 669, 362 S.W.2d 224; Clark v. State, 214 Tenn. 555, 381 S.W.2d 898; Bartlett v. State, 1 Tenn.Cr.App. 60, 429 S.W.2d 131; TCA § Thus, if there are facts to substantiate any of the lesser degrees ......
-
Hall v. State
...guilty of the lesser included offense of attempt to commit a felony. The verdict need not specify the felony attempted. Clark v. State, 214 Tenn. 555, 381 S.W.2d 898. GALBREATH and RUSSELL, JJ., concur. ...