Davidson v. State

• Decision Date: 05 May 1969
• Citation: 443 S.W.2d 457,1 Pack 193,223 Tenn. 193
• Parties: , 223 Tenn. 193 Raymond DAVIDSON v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 457

443 S.W.2d 457

1 Pack 193, 223 Tenn. 193

Raymond DAVIDSON v. STATE of Tennessee.

Supreme Court of Tennessee.

May 5, 1969.

Rehearing Denied July 28, 1969.

H. T. Etheridge and Roger Murray, Jr., Jackson, for plaintiff in error.

George F. McCanless, Atty. Gen., and Albert D. Noe, IV, Asst. Atty. Gen., Nashville, and David P. Murray, Dist. Atty. Gen., and Whit LaFon, Asst. Dist. Atty. Gen., Jackson, prosecuted the case in the trial court for the State.

OPINION

BURNETT, Chief Justice.

The plaintiff in error was indicted for violating the liquor laws on September 7, 1967, and was tried for this offense on September 22, 1967, the jury returning a guilty verdict and fixing the defendant's punishment at ninety (90) days in jail and assessing a fine of two hundred and fifty ($250.00) dollars. After a motion for a new trial was seasonably filed and overruled, and a motion for a suspended sentence was made and likewise overruled, a judgment was entered and in due season the plaintiff in error perfected an appeal to the Criminal Court of Appeals where the case was heard and the suit dismissed because the technical record in the case showed the following:

'This day came the Grand Jury into open Court in charge of their sworn officer, James Davis, Deputy Sheriff of Madison County and returned the following indictments and presents to-wit:--One presentment against RAYMOND DAVIDSON charging him with V.L.L. Signed by the Foreman and Members of the Grand Jury. A TRUE BILL. Summon for the State, Charles L. Stanley, Jim McClintock, Marvin Wood.

DAVID P. MURRAY

Attorney General.'

The majority opinion dismissed the case and remanded it because, 'There is no violation of law known as V.L.L. and it is only by reading the briefs filed by the attorneys that one may surmise the defendant was tried for violation of Section 39--2507, which makes the possessing of intoxicating liquors a misdemeanor.' The Pre siding Judge of the Court of Criminal Appeals dissented while two opinions were written by the other two members sustaining the dismissal for the reason above set forth. One of these opinions cites many cases as authority for doing this. The dissenting opinion points out that this fact was not mentioned or brought out by either party prior to its argument and submission to the Court of Criminal Appeals which acted as above indicated. The Presiding Judge correctly in his dissenting opinion says this and then says that the statement of the case in the briefs of the plaintiff in error was that Davidson had been indicted for the offense of violating the liquor laws by receiving and possessing intoxicating liquors. This is correct. None of the parties had noticed this until the Criminal Court of Appeals in a majority opinion dismissed the action because there was nothing charged against the man except 'V.L.L.'

In due season the State filed herein a petition for certiorari and accompanying this petition for certiorari was a motion for diminution of the record asking to have the original presentment, or a certified copy thereof, sent to this Court. After a full study of the matter we were convinced that the petition for certiorari should be granted, which it was, and after this was done we sustained the motion of the State for diminution of the record and it was ordered that this be done. There is likewise accompanying the petition for certiorari the original presentment wherein this man was indicted. This presentment shows the man was indicted for 'unlawfully receiving intoxicating liquors in the State.' This was signed by the District Attorney General and duly certified by the Clerk of the Court, Mr. William Bond, certifying that this was a true copy of the presentment on file in this case.

We then come to the question of whether or not this record could be thus corrected to show what 'V.L.L.' in the indictment meant by a diminution of the record. In other words, it clearly appears that the Clerk in writing up this technical record as different offenses are so frequently referred to in the Criminal Courts by letters, as driving while drunk, violating the liquor laws, etc., merely used the letters instead of the language of the indictment. The statute, T.C.A. § 40--1710, requires that felony indictments be entered in full on the minutes of the court, but there is no requirement in our statute that misdemeanor indictments or presentments be so entered. The object of the statute in requiring indictments in felony cases to be spread upon the minutes proceeds upon the cautionary and conservative ground for use in the case when the original papers are lost or mislaid. This Court in 1876 in Glasgow v. State, 68 Tenn. 485, held that the failure to spread the indictment for a felony upon the minutes of the court neither enlarges nor dismisses the rights of the accused since the object of such a proceeding is simply to provide against the consequences of loss, abstraction or destruction of the original. It does not invalidate the indictment.

This Court in 1846 in the case of Brown v. State, as reported in 26 Tenn. (7 Humph.) 155, held that the Clerk's failure to endorse 'a true bill', the failure to have the signature of the foreman of the grand jury as is required in felony indictments and the spreading of this indictment upon the minutes of the court are immaterial when the original indictment is in existence. This same holding was later affirmed in 1887 in State v. Herron, 86 Tenn. 442, 7 S.W. 37. In the Brown case, supra, the Court used some language which is applicable to the situation here:

'The statute requiring indictments in the cases of felony to be spread upon the minutes proceeds upon cautionary and conservative grounds, because some indictments have been lost, not with the view to affix a higher or an exclusive verity to the record from the minutes, which is indeed a copy by the clerk from the original. And if there were any difference between them, both being in existence, perhaps the greater faith would be conceded to the original.'

And then the question was asked, 'Does the record in the case before us, in view of the decisions of this court, sufficiently show the finding of the bill of indictment by the grand jury and its return into court?' The question is discussed at some length and it was determined that this did not void the judgment. The Court said in State v. Herron, supra, that:

'But it was not contemplated by the legislature and should not be held by the courts, that his failure to perform that duty Shall vitiate the original indictment, and defeat a trial of the prisoner upon it, when the original indictment is itself actually in file in the case, with proper indorsement and signature upon it, as in the case before us. * * *

'Therefore, we think the omission disclosed by this record is not fatal to the indictment.'

This statute (T.C.A. § 40--1710) which has been thus construed by the Court a hundred years ago was applicable to felony indictments. The offenses for which the plaintiff in error here was indicted are both misdemeanors. (T.C.A. § 39--2506, and § 39--2507). It appears that there exists a loophole in the statute describing the procedural steps to be taken with regard to misdemeanor indictments if the decision of the Court of Criminal Appeals is to stand.

No question has been raised by the two able attorneys for the plaintiff in error as to the sufficiency of this technical record or as to the sufficiency of the minute entry of the presentment. Neither party noticed this apparently prior to its being pointed out and the suit dismissed by the Court of Criminal Appeals. The case was briefed and argued on entirely other grounds. The State likewise did not undertake to supplement the record by a motion suggesting diminution in regard to the possibility of the insuffency of the record in this respect, and apparently it was not noticed by either side until pointed out in the opinion of the Court of Criminal Appeals.

The question here under our statutes and their construction by the courts over the years is whether a certified copy of the presentment upon which the accused was tried may now be presented to this Court by a suggestion of diminution of the record so as to correct an obvious error in the transcript. It is thus after this Court has granted the petition for certiorari that it now has jurisdiction of this case, and, since it has jurisdiction of the case, it is the proper and correct thing for this Court to grant the diminution of the record so as to have the certified copy of the original of this presentment sent up, which it has done, and thus shows what the man was charged with doing and what the jury was told that he was charged with doing and their finding upon this presentment charging him with violating the liquor laws. This presentment and the way it is now prevails over the minutes as transcribed by the clerk. See Page v. Turcott, 179 Tenn. 491, 167 S.W.2d 350.

There is no doubt in our mind but that pleadings are a part of the technical record. Duane & Co. v. Richardson, 106 Tenn. 80, 59 S.W. 135; Johnson v. Johnson, 185 Tenn. 400, 206 S.W.2d 400; Caruthers, History of a Lawsuit, § 431, 8th Ed. An indictment or presentment is a pleading and thereby a part of the record. This being true we unquestionably and unhesitatingly allowed the State's motion for diminution of the record and thus it now will prevail over a copy of the minutes as transcribed in the technical record.

It seems to us that the Court of Criminal Appeals based their opinion on a false assumption, that is, that the respondent went to trial on a presentment 'charging him with V.L.L.' It thus results in view of this diminution as to what the man actually went to trial on that the decision of that court was incorrect and should be reversed, which it is.

The State in its petition for certiorari and brief points to a Florida case, that of Turner v. Shelfer, 91 Fla. 39, 107 So. 247 for the proposition that ...