Farris v. State
| Decision Date | 16 February 1976 |
| Citation | 535 S.W.2d 608 |
| Parties | James E. FARRIS, Petitioner, v. STATE of Tennessee, Respondent. William Wayne ROBINSON, Petitioner, v. STATE of Tennessee, Respondent. Roosevelt LEWIS, Petitioner, v. STATE of Tennessee, Respondent. |
| Court | Tennessee Supreme Court |
Stafford Hagwood, Nashville, for Farris.
Walker Gwinn, Memphis, for Robinson and Lewis.
Etrula Trotter, Asst. Atty. Gen., Nashville, for Farris and Robinson.
William J. Haynes, Asst. Atty. Gen., Nashville, for Lewis; Ray A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
The principal issue in these cases is the validity of § 2 of Chapter 163 of the Public Acts of 1973, which appears in § 40--2707 T.C.A. as the last paragraph thereof, and which reads as follows:
It shall be the further duty of the trial judge charging jurors in cases of criminal prosecutions for felony offenses to charge the said jury as to the provisions of this section and as to the provisions of §§ 40--3612, 40--3613, 41--332 and 41--334, wherever applicable.
Both the trial court and the Court of Criminal Appeal upheld this section.
We affirm the James E. Farris case for the reason that Farris did not assign error in this Court directed to this portion of the statute.
The remaining defendants charged the trial court with error in charging the jury as to parole eligibility. This opinion is concerned with these two cases.
The effect of the 1973 amendment is to require that trial judges, in criminal cases (with the exceptions noted in the statute), charge the jury with respect to parole eligibility, certain powers and duties of the Board of Pardons and Paroles, good behavior allowances, and the allowance of honor time. There is no requirement that the jury be charged as to the loss of honor time. (See § 41--335 T.C.A.).
The Court of Criminal Appeals passed upon and sustained the constitutionality of so much of Section 40--2707, T.C.A. as requires that the jury fix the minimum and maximum term, in the cases of Sharp v. State, 513 S.W.2d 189 (Tenn.Cr.App.1974), and Halpin v. State, 515 S.W.2d 658 (Tenn.Cr.App.1974). This is true; however, in these cases, no attack was made upon so much of the statute as requires that the judge charge as to the aforementioned parole considerations.
In Sharp, the Court of Criminal Appeals, speaking through Judge Galbreath, sustained Chapter 163 of the Public Acts of 1973 in the face of a challenge asserting that the Legislature invaded the province of the Judicial Branch of the government; however, that case did not touch upon the issue here presented.
In Halpin, the Court of Criminal Appeals had under consideration an assignment which read as follows:
The Trial Judge erred in charging the jury regarding the doubling of the minimum sentence, said charge being based on an unconstitutional statute. 515 S.W.2d at 660.
The opinion copies Section 1 of the act, as it then existed, in its entirety, but stops short of Section 2, which is involved in the instant case. The court held in clear and unequivocal language:
We do not think the defendants have any standing to attack the validity of this statute because they have not been adversely affected by it. 515 S.W.2d at 662.
This statement operates to render as dictum the holding of the Court of Crininal Appeals, as to the constitutionality of the statute, moreover, this holding has no relation to the issue here under consideration.
In summary, as to the precise question herein involved, we address a matter of first impression. We are not, however, handicapped by lack of analogous precedent.
Article II, Section 17 of the Constitution of the State of Tennessee provides, in pertinent part, as follows:
No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts, which repeal, revive or amend former laws, shall recite in their caption or otherwise, the title or substance of the law repealed, revived or amended.
The purpose of this constitutional provision is to assure that members of the Legislature and the Public be given notice of legislative proposals and to prevent surprise and fraud in enactments. State v. Hailey, 505 S.W.2d 712 (Tenn.1974).
Before discussing the precedents which in our view compel the conclusion that this Act is broader than its caption, it is necessary and proper that we consider the background of Section 40--2707 T.C.A.
The Indeterminate Sentence Law originated with Section 1 of Chapter 8 of the Public Acts of 1913, which provided in substance for sentences to an indefinite period not to exceed the maximum nor minimum term with allowances being made for good time and with the proviso that the person sentenced would be subject to release or parole and to final discharge by the Board of Pardons and Paroles, along with certain other provisions not here material. It is pertinent to observe that this section made absolutely no reference to the substance of any charge to be given to the jury.
This section was amended by Chapter 52 of the Public Acts of 1923 and as amended appears as § 40--2707 T.C.A.
The caption of Chapter 52 provided:
An act to be entitled an act to amend Section 1 of Chapter 8 of the Public Acts of 1913, so as to provide for the verdict of the jury to fix the maximum term in cases where maximum and minimum term is provided by law.
The body of the Act simply provides that the jury would fix the maximum term of the convicted defendant, would return a verdict in the form set forth in the amendment and would require that the trial judge in imposing judgment not fix a definite term but would sentence such person to the penitentiary for a period of not more than the term fixed by the jury, making an allowance for good time as now provided by law.
Again nothing in the caption or body of Chapter 52 of the Public Acts of 1923 even hints at any charge to be given to the jury.
Then came Chapter 163 of the Public Acts of 1973, the caption of which reads as follows:
An act to amend Section 40--2707 Tennessee Code Annotated, relative to Verdict and sentence on felony conviction. (Emphasis supplied).
There is nothing whatsoever about this caption to alert any legislator or any interested citizen that tucked away into the Act would be a requirement that the judge charge the jury on parole considerations. All remaining portions of the Act relate to 'verdict and sentence' as the caption said it would, but again the action was wholly and utterly silent on the charge to the jury.
Chief Justice Grafton Green indelibly established the law of this State relative to the unconstitutionality of acts containing matter not within the scope of their captions in Hays v. Federal Chemical Company, 151 Tenn. 169, 268 S.W. 883 (1925). Judge Green stated:
While conceding that it is not necessary for the title of an amendatory act to set out the amendments proposed to be made, if such amendments fall within the title of the original act, we think, when the title of the amendatory act does Specify the particulars in which the original act is to be amended, the body of the amending act should not contain other matters. Any other rule would be unsafe. If the title of an amending act merely indicates generally that amendments of the original act are to be made, then it rests upon all those affected by the original act to investigate, and see in what respects the original act is to be changed. If the title of the amending act, on the contrary, sets out the particular amendments that are to be made to the original act, it may be reasonably concluded that no amendments other than those stated are to be attempted. It would promote deception, if, under a caption undertaking to specify amendments to be made, other and different amendments were included in the body of the act. (Emphasis supplied). 151 Tenn. at 175, 268 S.W. at 384.
This was a case of first impression in 1924 but it established the law in Tennessee and it is upon this case that we base this portion of this opinion, feeling as did Judge Green, that if this act had simply stated that it was an act to amend § 40--2707 Tennessee Code Annotated, this would have been sufficient as legislators and concerned citizens would have been put on inquiry. But where the caption goes further and specifies 'verdict and sentence' it falls within the prohibition laid down by Judge Green in Hays and any portion of the act beyond this subject and not relating to verdict or sentence is wholly and utterly void. Nor can we cure the defect by saying that it is germane. The charge of the jury is no more germane to verdict and sentence than is the indictment, the voir dire examination of the jury, the opening statement, the closing arguments or any of the other stages during the progress of a criminal trial.
In Tennessee Electric Power Co. v. City of Chattanooga, 172 Tenn. 505, 114 S.W.2d 441 (1937), this Court speaking through Mr. Justice DeHaven, stated:
A statute reciting the title or substance of a former law and expressly purporting to amend same need not indicate the particular and specific character of the amendment, if the amendment is germane to and Embraced in the subject expressed in the original act. (citing cases). However, where the title of the amendatory act recites the title of the act to be amended and also Specifies the amendments to be made, the Legislation is thereby limited to the amendment specified and anything in the body of the act outside of these is void. (Emphasis supplied). 172 Tenn. at 517, 114 S.W.2d at 445.
In Armistead et al. v. Karsch et al., 192 Tenn. 137, 237 S.W.2d 960 (1951), this Court said:
When the Legislature is presented with a caption which says that it is to amend another Act of the Legislature, of course, the Legislature and those interested have notice of what this other Act is because it is in force and spread on the books, but when this amendatory Act goes further and says that the...
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