Harris v. State
| Citation | 534 S.W.2d 868 |
| Parties | William HARRIS, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error. |
| Decision Date | 15 October 1975 |
| Court | Tennessee Court of Criminal Appeals |
B. F. Lowery, Lebanon, for plaintiff in error.
R. A. Ashley, Jr., Atty Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, R. David Allen, Asst. Dist. Atty. Gen., Lebanon, for defendant in error.
OPINION
William Harris was convicted of possessing marihuana for the purpose of resale and his punishment was fixed at two (2) to five (5) years in the penitentiary. The State's case was grounded upon a sale to a T.B.I. undercover agent, who implicated both Harris and a co-defendant, Linda James, in the alleged sale. The jury acquitted Linda James.
The case was carried directly to the Grand Jury and Harris was indicted on July 18, 1974, and a capias issued that day. In other words, no arrest warrant was issued for him on this charge prior to his indictment. On August 7, 1974, defense counsel filed, first, a motion for abatement of the indictment, because he was 'charged and indicted and * * * not afforded a preliminary hearing'. Counsel relied upon T.C.A. § 40--1131, as amended effective April 4, 1974. On the same day defense counsel filed a motion for a preliminary hearing, again relying upon T.C.A. § 40--1131. The technical record is unclear as to when these motions were acted upon. After a term caption apparently applying September 16, 1974, which was the trial commencement date, and the minute entries dealing with the trial, appears an order overruling said motions, and it bears the penned notation, 'Enter 3--26--75'.
Error is assigned upon the refusal to 'dismiss the indictment * * * on the grounds (sic) that he was not accorded a preliminary hearing * * * pursuant to T.C.A. Section 40--1131'.
The question is simply whether or not the 1974 amendment to T.C.A. § 40--1131 mandates a preliminary hearing in this case. We hold that it does not.
Prior to the 1974 amendment, the right to a preliminary hearing clearly did not exist after presentment or indictment. Shadden v. State, Tenn.Cr.App., 488 S.W.2d 54 (1972); Hilton v. State, Tenn.Cr.App., 503 S.W.2d 951 (1973); Brown v. State, Tenn.Cr.App., 489 S.W.2d 855 (1972). Effective April 4, 1974, the Legislature added this language
This language clearly applies only to a situation wherein an accused has been arrested on a warrant prior to indictment, and has no application to the situation in the case sub judice, wherein the very first action against the accused was the return of the indictment. The amendment by clear implication says that while the fact of indictment cuts off the right to a preliminary hearing, as the statute had read and the cases had said, in those cases wherein a warrant had been served prior to indictment and a motion made within thirty (30) days of arrest to abate the indictment for want of a preliminary hearing, it would be abated. The relief specified is not a post-indictment preliminary hearing, but abatement of the indictment.
The contention made on behalf of plaintiff-in-error that his motion for abatement was made within thirty (30) days of his arrest confuses the arrest of him on a post-indictment capias with the pre-indictment arrest contemplated by the statute but not found in this record.
If the Legislature means to say that no person shall be indicted and put to trial on an indictment until they have first had a preliminary hearing then the wording of T.C.A. § 40--1131 will have to be changed. The statute, as written in 1971 and added to in 1974, only covers the case of one arrested on a charge and not given a preliminary hearing prior to indictment. It has no application to a case wherein the first State action is an indictment or presentment, as here. Obviously, a post-indictment 'preliminary hearing' would be a mutation of procedures creating many procedural problems. If broader discovery procedures are desired by the Legislature a direct approach, with procedures tailored to that purpose, would serve far better than bending a probable cause proceeding to serve a discovery purpose.
We hold that it was not error for the trial judge to refuse to abate this indictment for want of a preliminary hearing.
Error is assigned upon the alleged insufficiency of the evidence supporting the conviction. The State's undercover agent testified that he purchased a pound of marihuana from the accused for one hundred sixty-five dollars ($165.00). The verdict of the jury, approved by the trial judge, accredits the testimony of the prosecution witnesses and establishes the State's theory of the case. Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768.
The plaintiff-in-error complains of the introduction of evidence of his prior arrest. This did not actually happen. When the T.B.I. undercover agent was being examined by the prosecuting attorney, this was asked and answered:
'Q. * * *I want to ask you what was the nature of this conversation with the defendant, Mr. Harris, with Mrs. James present, what was that conversation about?
'A. I was about--we were trying to line up more marijuana.
'Q. How much more?
'A. Approximately, somewhere between one and ten pounds. It was to the effect on how much he could deliver. He told me he was going to go pick up ten pounds.
'Q. Did he tell you that he was also going to sell that to you?
'A. Yes, sir, he did.
'Q. And did he deliver it to you?
'A. No, sir, he did not.
'Q. What happened?
'A. He was arrested on--
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