Doyle v. State

• Decision Date: 11 February 1970
• Citation: 458 S.W.2d 637,3 Tenn.Crim.App. 171
• Parties: James DOYLE, Appellant, v. STATE of Tennessee, Appellee.
• Court: Tennessee Court of Criminal Appeals

Page 637

458 S.W.2d 637

3 Tenn.Crim.App. 171

James DOYLE, Appellant, v.STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee.

Feb. 11, 1970 Certiorari Denied by Supreme Court April 20, 1970.

Hugh W. Stanton, Jr., and John P. Colton, Jr., Memphis, for appellant.

David M. Pack, Atty. Gen., Thos. E. Fox, Deputy Atty. Gen., Nashville, Phil M. Canale, Jr., Dist. Atty. Gen., Eugene C. Gaerig, Asst. Dist. Atty. Gen., Memphis, for appellee.

OPINION

RUSSELL, Judge.

James Doyle appeals from the dismissal of his petition for post conviction relief without an evidentiary hearing.The petition is lacking in allegations about the actual conviction, stating only that it was for murder in the first degree.He seeks a new trial because of (1) the alleged insufficiency of the evidence, and (2) alleged prejudice to him from the alleged systematic exclusion of Negroes from the grand and petit juries which dealt with his case.

The actual pleadings tell us no more about the case, because the State of Tennessee did not reach the point precedurally of having to file an answer.The State's motion to strike was sustained.

The Public Defender raises the question, on appeal, of the absence in the record of any authority for the holding of the petitioner, 'as is required by Ussery v. Avery, --- Tenn. ---; 432 S.W.2d 656(1968)'.This holding is not applicable for a number of reasons.First, Ussery dealt with a petition brought under our Habeas Corpus statutes, T.C.A. § 23--1801 et seq.This petition specifically sought relief under the Post Conviction Procedure Act, T.C.A. § 40--3801 et seq. A petition so brought does not fall within the holding of Ussery.The requirements relative to the State's answer in a proceeding such as this are governed by T.C.A. § 40--3814.We would note that in this caseT.C.A. § 40--3804 dealing with the prescribed contents of a post conviction relief petition were not complied with.As we see it, there was no mandatory requirement upon the State to comply with Ussery in this case, even if an answer had been procedurally called for.SeeTrolinger v. Russell, Tenn.Cr.App., 446 S.W.2d 538.In the case sub judice, the question of proper answer content was never reached, because the petition was struck upon motion.

We must look to a prior proceeding by Doyle for our background information.We may, of course, take judicial notice of prior proceedings by the same petitioner.State ex rel. Wilkerson v. Bomar, 213 Tenn. 499, 376 S.W.2d 451.We find that a previous habeas corpus petition was finally disposed of by our Supreme Court in a reported case styled State ex rel. Doyle v. Henderson, Warden, reported in 221 Tenn. 156, 425 S.W.2d 593.In that case it appeared that Doyle had been tried and convicted of first degree murder and sentenced to 99 years in the penitentiary.He was indigent then, as now; and contended that he had been deprived of his constitutional right to an appeal.It appeared that no evidence was introduced on behalf of Doyle.After he was sentenced, the trial judge asked in open court it he desired to appeal and his counsel replied negatively.Our Supreme Court held, under the facts of the case, that this effectively waived his right to appeal.

This, in, turn, disposes of the first question before us.The sufficiency of the evidence for conviction is a question to be disposed of on appeal.Here, his appeal was waived.He may not now use a petition for post-conviction relief as a substitute for an appeal.Habeas corpus and post-conviction proceedings may not be employed to question or review or test the sufficiency of the evidence at the original trial.39 C.J.S.Habeas Corpus§ 29(J), p. 518.Fernandez v. Klinger, 346 F.2d 210(9th Cir.1965), cert. den.382 U.S. 895, 86 S.Ct. 191, 15 L.Ed.2d 152.Nor may same be used to determine the question of guilt or innocence.State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667;State ex rel. Dickens v. Bomar, 214 Tenn. 493, 381 S.W.2d 287.

We now reach the final question raised by this appeal; i.e., does the allegation of systematic exclusion of Negroes from jury service require an evidentiary hearing.The State's brief is grounded upon the premise that the conviction was upon a plea of guilty, but this was not ...