Francis v. State

• Decision Date: 06 April 1973
• Citation: 498 S.W.2d 107
• Parties: Alfred FRANCIS, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 107

498 S.W.2d 107

Alfred FRANCIS, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

April 6, 1973.

Certiorari Denied by Supreme Court July 16, 1973.

Fillauer, Dietrich & Mobbs, Cleveland, for plaintiff in error.

David M. Pack, Atty. Gen., Bart Durham, Asst. Atty. Gen., Nashville, Earle G Murphy, Dist. Atty. Gen., Cleveland, for defendant in error.

OPINION

OLIVER, Judge.

Represented by retained counsel below and here, Francis has duly perfected an appeal in the nature of a writ of error to this Court challenging the validity of his second degree murder conviction and 10-to-15-year penitentiary sentence adjudged by the Criminal Court of Bradley County where he was tried upon an indictment charging him with the first degree murder of Kenneth L. Wright.

By his first two Assignments of Error here the defendant (a Negro) reasserts the contention made in his motion for a new trial that the trial court erred in overrulign his motion to quash the indictment. That motion attacked the indictment on the basis that Negroes were systematically excluded from jury service in Bradley County and from the Grand Jury which returned the indictment against him. An insurmountable barrier stands in the defendant's way. It will be noted that in this motion to quash the defendant does not urge any defect appearing on the face of the indictment, and there is none. The settled law of this State is that a motion to quash an indictment lies only where it is defective or invalid upon its face. State v. Smith, 1 Tenn.Cr.App. 163, 432 S.W.2d 501; Yearwood v. State, 2 Tenn.Cr.App. 552, 455 S.W.2d 612.

In Raine v. State, 143 Tenn. 168, 186, 226 S.W. 189, 195, the Court succinctly stated the rule of law applicable to motions to quash an indictment or presentment:

'Of course, on a motion to quash an indictment, the infirmity relied on must appear on the face of the indictment, and extraneous evidence cannot be resorted to for the purpose of establishing such infirmity.'

In State v. Davis, 204 Tenn. 553, 322 S.W.2d 232, the Court said:

'. . . A motion to quash an indictment goes solely to the proposition as to whether the indictment is regular upon its face.

'Motion to quash an indictment will not be sustained unless it is defective or invalid upon its face. Wireman v. State, 146 Tenn. 676, 244 S.W. 488; Price v. State, 199 Tenn. 345, 287 S.W.2d 14.'

The Court reiterated this rule in Smith v. State, 207 Tenn. 219, 338 S.W.2d 610:

'This assignment must be overruled for at least one reason and that is a motion to quash will not lie, unless the indictment is defective on its face. State v. Davis, 204 Tenn. 553, 322 S.W.2d 232.'

This Court has no alternative but to follow the law so plainly enunciated and so long established. Thus, although the trial court permitted introduction of evidence pro and con upon the matter raised by the motion to quash, plainly 'extraneous evidence cannot be resorted to for the purpose of establishing such infirmity.' Raine v. State, supra.

The fact that the trial judge permitted introduction of such evidence did not and could not convert the motion to quash into a plea in abatement, and could not and did not alter the salutary and firmly established rule that an indictment infirmity such as Francis alleged cannot be reached by a motion to quash.

But beyond all of that, we have nevertheless carefully scrutinized the evidence permitted and heard by the trial judge and we agree with him that the defendant wholly failed to establish that members of his race were systematically excluded from jury service in Bradley County and from the indicting Grand Jury.

The next Assignment is that the trial court erred in overruling the defendant's motion for a change of venue. Kenneth L. Wright was a Bradley County Deputy Sheriff. The defendant killed him on August 22, 1971. The motion for a change of venue states that after the defendant was placed in the Bradley County Jail the same day, Deputy Sheriff Lee Moore went to his cell and shot him several times; that on March 9, 1972 Moore was convicted of assault with intent to commit voluntary manslaughter and was sentenced to pay a fine of $100 and to imprisonment for 11 months and 29 days in the county workhouse; that the defendant testified as a prosecution witness in Moore's trial and was interrogated on cross-examination with reference to prior convictions which would be inadmissible in his own trial scheduled for March 20, 1972 and that some of the prospective jurors called for his trial were present at Moore's trial when he testified; and that this latter circumstance together with prejudicial press and radio publicity made it improbable that he could receive a fair and impartial trial in Bradley County. Various Xerox copies of newspaper article were attached to the motion.

The trial court's order overruling the motion for a change of venue recites:

'Upon hearing the defendant in his motion for change of venue and upon considering the newspaper clippings filed in this cause, it appears to the Court that the defendant has not shown that there is any undue excitement or that any other situation exists that would prevent the defendant from receiving a fair trial, that the defendant is under a $25,000.00 bond and comes and goes as he pleases and has not been abused by anyone.'

Although it thus appears that a hearing was conducted on this motion and that the court heard the defendant, there is no transcript of that hearing in this record. Nor are the copies of newspaper articles included in the Bill of Exceptions and cannot be considered on appeal. Driscoll v. State,191 Tenn. 186, 232 S.W.2d 28; Baldwin v. State, 204 Tenn. 639, 325 S.W.2d 244; Chico v. State, 217 Tenn. 19, 394 S.W.2d 648. The evidence 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 the prejudice of the defendant by overruling the motion for a change of venue. That is the test. Absent a clear showing of such abuse, this Court cannot reverse the action of the trial judge. Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121; Swain v. State, 219 Tenn. 145, 407 S.W.2d 452; Wilson v. State, 2 Tenn.Cr.App. 138, 452 S.W.2d 355; TCA § 40--2201.

Moreover, the fact that the jury found him guilty of the lesser offense of second degree murder and did not even give him the maximum sentence for ther offense (TCA § 39--2408) effectively refutes any contention that the jury was prejudiced against him.

In order to put the defendant's fourth Assignment, as well as his final one, in proper perspective, we summarize the salient facts obviously accredited by the jury. About mid-morning of Sunday, August 22, 1971, Policeman John McLain was on regular patrol alone in Cleveland, Tennessee only a short distance from the corporate boundary line. When he observed the defendant approaching from her rear at an estimated speed between 50 and 60 miles per hour in a 30-mile zone, he started to pull off the street into a grocery store parking lot. Being close upon the patrol car and without waiting for it to clear the street, the defendant cut around it and resumed his excessive speed. Although Officer McLain pursued him for this traffic violation, the defendant disregarded the blue flashing lights on the police cruiser and continued at 70 to 80 miles per hour until he reached and entered his driveway located about a mile and a half beyond the city limits. McLain never lost sight of the defendant and stopped short of the driveway and got out. The defendant got out of his car. His breath smelled of alcohol. When McLain asked to see his driver's license, the defendant refused, and, when asked why he was driving so fast, told the officer it was none of his business. McLain returned to his patrol car and radioed for assistance 'from the county,' (obviously meaning the county sheriff's office) and the defendant got in his car and drove it to his house at the end of the driveway. McLain then placed the patrol car across the driveway entrance. The defendant then came back up the driveway in his car, stopped and got out. His attiude of belligerence had changed to ostensible friendliness, and he offered the officer $50 'if you will let me go,' to which McLain replied that he couldn't to that and 'I try to make an honest living.' Still appearing friendly, the defendant said he was a truck driver and did not have a driver's license and that was the reason 'I didn't give them to you was because I don't have one,' and again asked the officer to let him go. McLain noticed that the defendant's shirt resembled a police uniform shirt, and since he was talking in a friendly manner 'I asked him where he got the Shirt, just trying to break the ice and conversation and maybe see a way out of it to let the man go on home and forget the whole incident,' and the defendant took exception to that question and replied, 'It is none of your business where I got this shirt. What's it to you?' Then McLain asked him if he would agree to stay at home the remainder of the day and not get out on the streets anymore because he was drinking too much to be driving, and told him 'If he would stay there and not drive anymore than day that we would just forget the whole incident.' The defendant agreed and said that would be fine with him. Thereupon, with the defendant standing beside him, McLain again called 'the county' and advised that he did not need assistance.

When McLain completed his radio call and started to leave, the defendant suddenly said, 'Get out of the car. I'm going to kill you. I am going to beat you to death right here.' When McLain opened the door and started to get out of the patrol car, the defendant took two or three steps backward and reached toward his...