King v. State

• Decision Date: 02 June 1965
• Citation: King v. State, 216 Tenn. 215, 391 S.W.2d 637, 20 McCanless 215 (Tenn. 1965)
• Parties: , 216 Tenn. 215 Joseph Blaine KING, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Supreme Court

Page 637

391 S.W.2d 637

20 McCanless 215, 216 Tenn. 215

Joseph Blaine KING, Plaintiff in Error, v.STATE of Tennessee, Defendant in Error.

Supreme Court of Tennessee.

June 2, 1965.

Charles C. Guinn, Etowah, for plaintiff in error.

George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Nashville, for defendant in error.

HOLMES, Justice.

The plaintiff in error, Joseph Blaine King, hereinafter referred to as defendant, was convicted of assault with intent to commit voluntary manslaughter and sentenced to serve not less than one year and not more than one year and one day in the State Penitentiary.He has duly appealed to this Court and has filed numerous assignments of error.

We shall first consider assignment of error number three, by which the defendant contends he was placed in double jeopardy upon the trial from which this appeal was perfected because he was then placed on trial for assault with intent to commit murder in the first degree, of which offense he theretofore had been acquitted.

The record shows that on March 16, 1964, the defendant was indicted for assault with intent to commit murder in the first degree.On July 20, 1964, he was tried on this indictment and found guilty of assault with intent to commit murder in the second degree.His punishment on that trial was fixed at confinement in the County Jail for 11 months and 29 days and that he pay a fine of $250.00.On July 23, 1964, the Trial Judge, on his own motion, granted the defendant a new trial.Thereafter, on November 17, 1964, the defendant was put on trial for the offense of assault with intent to commit murder in the first degree, under this same indictment, and was convicted of assault with intent to commit voluntary manslaughter.

The record leaves no doubt that the defendant was, in fact, placed on trial for the greater offense of assault with intent to commit murder in the first degree.The Trial Judge, in his charge, read to the jury the indictment charging the defendant with assault with intent to commit murder in the first degree and fully charged to the jury the elements of that offense, as well as the punishment prescribed by T.C.A. Sec. 39-604.The Court, of course, charged the jury the law of the lesser included offenses.At no point did the Trial Judge advise the jury that on a former trial the defendant had been acquitted of the greater charge of assault with intent to commit murder in the first degree.

In many States it is held that a verdict of guilty of a lesser included offense on an indictment charging a more serious crime is an acquittal of all grades of the offense above that of which the defendant was found guilty.Authorities from many States are collected in 61 A.L.R.2d 1141.Since 1957, with the decision of Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, this has become the rule in the Federal Courts.This rule has obtained in Tennessee from the beginning of our jurisprudence, State v. Norvell, 10 Tenn. 24, to the present time, Saunders v. State, 208 Tenn. 347, 345 S.W.2d 899.

The brief filed by the State admits it was error to try the defendant on the second trial for the offense of assault with intent to commit murder in the first degree after he had been acquitted of that offense by the jury on the first trial.The State urges, however, that, since the defendant on the second trial was not found guilty of the greater offense, this constituted harmless error.In support of this position, the State relies upon Slaughter v. State, 25 Tenn. 410, andRaine v. State, 143 Tenn. 168, 226 S.W. 189.

In Slaughter, the defendant was indicted and tried for murder in the first degree.On his plea of not guilty, he was found guilty of voluntary manslaughter.His motion for a new trial was granted and he was again tried for murder in the first degree and found guilty of voluntary manslaughter.He appealed from this second conviction on the technical record only.In Slaughter, the Court stated:

'The question is now presented whether the court erred in putting the defendant on his trial a second time upon this indictment.There is no bill of exceptions, and the record does not state whether the court directed the jury to confine enquiry to the question of manslaughter.If he were tried for murder, it was erroneous, and, had he been convicted for that offense, the court would certainly have reversed the judgment.* * * From the verdict, as it is recorded, it is to be inferred that the defendant was tried for manslaughter only.The jury say the defendant is guilty of manslaughter, and say nothing as to the murder, thereby indicating that they were instructed to regard the question of murder as settled by the former verdict.But, if the record made it appear that the defendant was erroneously tried a second time for the murder, such erroneous proceedings wrought no injury to him; he is found guilty of manslaughter only, and is in no worse situation than if he had been put on his trial for that offense alone.'25 Tenn. at 414.

The Court, at the conclusion of its opinion in Slaughter, further stated:

'The order granting a new trial may have the effect of setting aside the entire verdict; but as the verdict of acquittal of the murder protected the defendant, by the Constitution, from any subsequent trial for the offence, the court, at the subsequent trial, having the whole record before him, was bound to see that he was protected and to regard so much of the order setting aside the verdict as a nullity, and so to try him for manslaughter only, which we must presume was done.'(Emphasis supplied)25 Tenn. at 415.

Since there was no bill of exceptions in Slaughter, the charge of the Trial Judge on the second trial of that case was not before this Court.The Court concluded its opinion by applying the well settled rule that since the charge was not included in the record the Court would presume the charge was correct and would presume that the Trial Court instructed the jury they could consider no degree of homicide greater than voluntary manslaughter.

In Tennessee the prohibition against double jeopardy is contained in Article 1, Section 10, of our Constitution.It provides, 'That no person shall, for the same offense, be twice put in jeopardy of life or limb.'

In discussing the meaning of this constitutional provision, the Court, in Holt v. State, 160 Tenn. 366, 24 S.W.2d 886, stated:

'The right not to be put in jeopardy a second time for the same offense is as important as the right of trial by jury, and is guarded with as much care.

'* * * Jeopardy signifies the danger of conviction and punishment which the defendant in a criminal prosecution incurs when duly put to trial before a court of competent jurisdiction.8 R.C.L. p. 133.The rule is designed to protect the individual, obnoxious to the government, from successive harassing prosecutions for a single offense.It might properly be called a rule designed to encourage repose and peace.'(Emphasis supplied)160 Tenn. at 371, 372, 24 S.W.2d at 887.

Jeopardy attaches when one is put to trial on a valid indictment before a court of competent jurisdiction and the jury is sworn to try the issue and make deliverance.The protection afforded by this provision of our Constitution is not merely protection from punishment for an offense of which the defendant has been once acquitted, but protection from 'successive harassing prosecutions for a single offense.'Therefore, the constitutional right of the defendant not to be twice put in jeopardy was invaded when the defendant was put on trial for the offense of which he had been previously acquitted regardless of whether or not he was convicted of that offense.

That the Harmless Error Statute is not applicable to a situation where there has been an invasion of a constitutional right was stated by the Court in Church v. State, 206 Tenn. 336, 356, 333 S.W.2d 799, 808, as follows:

'It is argued by the State that the charge of the court herein complained of was harmless error, and that effect should be given Section 27-117, T.C.A.

We are not in agreement with this insistence, as it would be an invasion of a constitutional right of the defendant, in view of all of the facts and circumstances involved.'

Our investigation has disclosed that Slaughter v. State, supra, has been cited with approval by a number of courts for the proposition that the conviction of the lesser offense constitutes an acquittal of the greater offense charged in the indictment.One of these cases is State v. Dennison, 31 La.Ann. 847.In that casethe defendant was indicted for murder, was tried and found guilty of manslaughter.On appeal the conviction was set aside and the cause remanded.Thereafter, the defendant was again put on trial for murder and again found guilty of manslaughter.In reversing this second conviction, the Louisiana Court stated:

'This being the case, there was error in ruling the prisoner to trial on the charge of murder, and, although he was only convicted of manslaughter, the erroneous ruling may have been seriously to his prejudice.'31 La.Ann. 849.

Another case citing Slaughter is State v. Tweedy, 11 Iowa 350.There the defendant, on trial for murder in the second degree, was found guilty of manslaughter.A new trial was granted and upon second trial for murder in the...