Harrison v. State

Decision Date14 September 1965
Citation21 McCanless 31,217 Tenn. 31,394 S.W.2d 713
Parties, 217 Tenn. 31 Earl HARRISON, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
CourtTennessee Supreme Court

James Palmer Kelley, Nashville, for Earl Harrison.

George F. McCanless, Atty. Gen., Marne S. Matherne, Asst. Atty. Gen., Nashville, for the State.

DYER, Justice.

This case presents the question of procedure in the introduction of evidence under an indictment for a felony where there is a second count charging the alleged felon with being an habitual criminal under T.C.A. Secs. 40-2801 et seq.

The plaintiff in error was tried under a two count indictment. The first count charged armed robbery accomplished with a deadly weapon. The second count charged plaintiff in error, at the time of the commission of the offense charged in the first count, had been previously convicted of ten separate felonies set out and detailed therein and was an habitual criminal under T.C.A. Secs. 40-2801 et seq. The proof necessary to sustain both counts was introduced by the State in its evidence in chief. It is alleged such procedure is error in that it denied plaintiff in error a fair trial since the jury in determining his guilt or innocence, under the first count, had before it evidence of prior convictions of felonies.

Habitual criminal statutes do not create an independent crime but define a status prescribing circumstances under which there is an enhanced penalty for the present crime. To be more specific it is first necessary that the jury determine guilt of present crime (count one in the case at bar) before determining guilt or innocence of the habitual criminal count (count two in the case at bar) which finding, if guilty, enhances the punishment of the present crime. If the jury finds not guilty of the present crime then the habitual criminal count is not at issue. Tipton v. State, 160 Tenn. 664, 28 S.W.2d 635 (1930); McCummings v. State, 175 Tenn. 309, 134 S.W.2d 151 (1939); State ex rel. Grandstaff v. Gore, 182 Tenn. 94, 184 S.W.2d 366 (1945); Ex Parte Bailey, 60 Okl.Cr. 278, 64 P.2d 278, 1936; People v. Lamphear, 6 Ill.2d 346, 128 N.E.2d 892 (1955).

The greater number of our sister states have statutes which permit the imposition of an increased punishment for criminal offense where the defendant has been convicted of prior offenses and important procedural problems have arisen as to how and when prior convictions are to be alleged and proved. Several methods to meet this situation have developed and the prevailing view, either by statute or court decision, is generally designated as the common law method. See 33 New York University Law Review, 210.

The common law method requires an allegation, as a part of the indictment for the present crime, setting out in necessary detail the prior convictions subjecting the defendant to the greater penalty. The indictment is read to the jury including the charge of the present crime and the prior convictions enhancing the penalty upon conviction of the present crime. The prosecution enters its proof on both the present crime and former convictions as a part of its evidence in chief. This, of course, places before the jury knowledge of the former convictions before they have rendered their verdict on the defendant's guilt or innocence of the present crime.

The reason supporting the common law procedure is that the commission of former crimes is an essential element of the State's case which is required to be proved, as a material fact, beyond a reasonable doubt with the defendant having an opportunity to challenge; and as such it is deemed relevant and material to the State's case in chief. Following this line of reasoning, many jurisdictions, though recognizing that such evidence is prejudicial to the defendant, nevertheless, admit the evidence some with the admonition the trial court instruct the jury to use the evidence only on the issue of habitual criminality. See: Massey v. United States, 281 F. 293 (8th Cir. 922); People v. Jeffries, 47 Cal.App.2d 801, 119 P.2d 190 (1941); Waxler v. State, 67 Wyo. 396, 224 P.2d 514 (1950); State v. Lovejoy, 60 Idaho 632, 95 P.2d 132 (1939); State v. Bailey, 165 La. 341, 115 So. 613, 58 A.L.R. 1 (1928); State v. McClay, 146 Me. 104, 78 A.2d 347 (1951); State v. Waterhouse, 209 Or. 424, 307 P.2d 327 (1957); State v. Meyer, 258 Wis. 326, 46 N.W.2d 341 [217 Tenn. 36] (1951); State v. Lutz, 135 N.J.L. 603, 52 A.2d 773 (1947); State v. Martin, 275 S.W.2d 336 (Mo.1955).

The plaintiff in error in the case at bar entered a plea of not guilty to both counts of the indictment and the case was tried in accord with the common law method of procedure.

In State v. Ferrone, 96 Conn. 160, 113 A. 452 (1921) the Supreme Court of Errors of Connecticut adopted the following method of procedure. The indictment is divided into two parts each on a separate page. The first part sets forth the present offense with which accused is charged and the second part alleges the necessary information required to enhance the penalty upon conviction under the first part. In the absence of the jury the entire indictment is read to the defendant and his plea to each part taken. The next steps will depend on the pleas entered by the defendant. If, as in the case at bar, the defendant enters a not guilty plea to each count of the indictment then the prosecutor reads to the jury the first count of the indictment, containing the charge of the present crime, and a full trial is held with the issues confined to the guilt or innocence of the defendant under this count. If the jury returns a not guilt verdict under this first count the matter is ended. If the verdict of the jury is guilty, under the first count, then this same jury is read the second count and a trial held thereon confined to the issues raised by the second count.

The vital difference between the Connecticut method and the common law method is that former convictions are kept from the jury until the guilt or innocence of the accused, under the charge of the present crime, is determined. The reason for this is stated in State v. Ferrone, supra, as follows:

If cannot be believed that an accused man would ever have a fair trial, resulting in a verdict not affected by prejudice or by considerations by which the jury should not be influenced, if during that trial allegations that he has twice before been convicted of state prison crimes have been read to the jury, and evidence of his former convictions has been placed before them. 96 Conn. 160, 113 A. 452.

Utah, by statute has adopted essentially the Connecticut method. See U.C.A. Sec. 76-1-19. Other states have done so by judicial decision. See State v. Kirkpatrick, 181 Wash. 313, 43 P.2d 44 (1935); McWhorter v. State, 118 Ga. 55, 44 S.E. 873 (1903); McCallister v. Commonwealth, 157 Va. 844, 161 S.E. 67 (1931); and Heinze v. People, 127 Colo. 54, 253 P.2d 596 (1953).

In the case of McBride v. State, 200 Tenn. 100, 290 S.W.2d 648 (1959) the defendant was indicted for violation of the liquor laws. Upon a finding of guilty by the jury the State was then allowed to introduce previous similar violations enhancing the penalty. This procedure was assigned as error and this Court speaking through the late Mr. Justice Swepston said:

Complaint is made that the court did not charge the jury with regard to the punishment to be assessed until after they had found defendant guilty, after which the court then charged with reference to the punishment and permitted the introduction of evidence of previous similar violations of law by the defendant. There was no error in this because it could not have been handled in any other way. The other offenses were violations of the liquor laws and the introduction of same into evidence before the jury found him guilty would have violated the rule in regard to the admissibility of other offenses as fully discussed in Harris v. State, 189 Tenn. 635, 227 S.W.2d 8 and would have been prejudicial to defendant even though admitted solely for the purpose of aiding the jury in the determination of what punishment they should assess if they found him guilty. 200 Tenn. 105, 290 S.W.2d 651.

In Frost v. State, 203 Tenn. 549, 314 S.W.2d 33 (1958) the defendant was indicted for driving while intoxicated. Upon the trial the State invoked T.C.A. Sec. 59-1035 enhancing the penalty for previous similar convictions. The evidence of these previous convictions, over objection, was introduced by the State as a part of its evidence in chief which is the common law method on this point. There was timely objection to this procedure. This Court speaking through Mr. Justice Tomlinson referring to the holding in McBride v. State, supra (shown above in this opinion) said:

Such holding in the McBride case was undoubtedly correct and in accord with the general rule. That rule is stated in 24 C.J.S. Criminal Law § 1939b, p. 1167, wherein, in dismissing the order of trying the issues in a prosecution of accused as a second or subsequent offender the rule is stated to be that:

'In the absence of statutory provisions relating thereto, it has been held that the manner of presenting issues is discretionary with the trial court, * * *.' 203 Tenn. 552, 314 S.W.2d 35.

The Court found the language in the McBride case requiring the procedure used in that case to be mandatory was in fact dictum. The Frost opinion was reversed on other grounds than this procedural point and the late Mr. Justice Swepston (concurring in the results) said:

I concur in the reversal of this judgment, but my objection to the majority opinion is that the Court is now reneging on...

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