Manning v. State

Decision Date15 October 1973
Citation500 S.W.2d 913
PartiesHarry MANNING, alias, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
CourtTennessee Supreme Court

Samuel B. Schlanger, Asst. Public Defender, Nashville, for plaintiff-in-error.

David M. Pack, Atty. Gen., of Tenn., William C. Koch, Jr., Asst. Atty. Gen., Arnold Peebles, Jr., Tom P. Thompson, Jr., Asst. Dist. Attys. Gen., Nashville, for defendant-in-error.

OPINION

W. M. LEECH, Special Justice.

Defendant was convicted of armed robbery with a resulting punishment of ninety-nine years. The Court of Criminal Appeals reversed and remanded for a new trial raising an issue which had not been raised during trial, in the motion for new trial, or by assignment of error on appeal--that issue being the trial court's failure to instruct the jury on the defense of alibi. Therefore, this Court granted certiorari to review the action of the Court of Criminal Appeals.

Essentially, the State assigns two errors. First, the State asserts that it was error for the Court of Criminal Appeals to consider the unassigned error in this case. The State agrees that an appellate court can recognize error on its own motion but argues that this practice should be limited to the technical record.

That argument is not tenable. Davidson v. State, 223 Tenn. 193, 443 S.W.2d 457; James v. State, 215 Tenn. 221, 385 S.W.2d 86; Stallard v. State, 187 Tenn. 418, 215 S.W.2d 807. Our appellate courts, as in this instance, appear to act in accordance with the language in Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798:

'In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.'

This Court has recognized that interpretation in Jacobs v. State (unreported opinion, February 16, 1971) wherein the dissenting opinion of Judge Walker of the Court of Criminal Appeals was adopted as the opinion of this Court. Therein, it was stated:

'This court, of our own motion, of course, may notice errors not presented to the trial court or raised here; but I do not think this is a proper case to do so or that it is required by the facts before us. The chief function of an appeal in a criminal case is to see that justice is done to the appellant. A defendant who did not secure a fair trial should have another. That is not involved here.'

Judge Oliver wrote much the same thing in this case, saying that the right to act on unassigned error exists where not '(T)o do so would be nothing less than knowingly perpetrating a palpable injustice.'

The precise question, then, becomes whether the defendant was denied a fundamentally fair trial by the failure of the trial judge to charge alibi. The resolution of this question involves the evidence presented in the case and an interpretation of our leading case on the failure to charge alibi, Poe v. State, 212 Tenn. 413, 370 S.W.2d 488.

The relevant evidence is as follows: Around 5:30 P.M. on November 8, 1971, Robert Sheehan left his place of employment and walked south on Third Avenue in Nashville. As he walked, two men, later identified as the defendant and a co-defendant, Wolfe, stepped in front of him. The defendant stuck a pistol in Sheehan's stomach and said, 'Do exactly as I tell you or I'll blow a hole in you,' and then ordered Sheehan to go into a nearby well-lighted alley where Wolfe took Sheehan's wallet, stuffed its contents into his pocket and returned the wallet to him. In the wallet were two $20 bills and one $10 bill wrapped in a page torn from a magazine on which there was a picture of a suit, and three one dollar bills. Reporting the incident immediately, Sheehan returned to the place where he was robbed. Spotting the robbers, he started to a nearby liquor store to call the police again, when he saw a patrol car and stopped it and told the policemen what had happened. Sheehan and the policemen then drove back to the place where the robbers were last seen. The two men were still in the vicinity and upon seeing them, the policemen pulled the patrol car behind them, ordered them to stop, and arrested them. The defendant had a gun. Wolfe had two $20 bills and one $10 bill wrapped in a page torn from a magazine and three one dollar bills.

Sheehan positively identified the defendant in court as the man who robbed him. As a rebuttal witness for the State, Wolfe testified that he and the defendant robbed Sheehan and that he took his money while the defendant held a gun on him.

Testifying in his own behalf, the defendant denied having anything to do with robbing Sheehan. He testified that in the afternoon of November 8, he was at the Bamboo Lounge playing pool; that he then went to the Sixth Avenue Lunch and was with his girl friend, Wolfe, and a man named Robert; that while there, Wolfe and Robert borrowed his gun, left the place and returned twenty minutes later; that Robert then left for New Orleans; that about 7:00 P.M. he and Wolfe left to meet some people; that as they were walking along Third Avenue, they saw a man operating his car backward and forward in a parking lot as though looking for something, and that he and Wolfe were arrested shortly thereafter by Policeman Ezell who was accompanied by Mr. Sheehan; and that his revolver, the same one he had loaned to Wolfe earlier, was taken from him. Clearly, the defendant was attempting to raise the issues of identity and alibi.

There was other evidence in the record (which the Court of Criminal Appeals found admissible) that the defendant had robbed one Heathcott three days prior with a gun in the same area using the same words, 'Don't lie to me or I'll blow a hole through you.'

The Court of Criminal Appeals interpreted Poe v. State, supra, as holding that where the evidence raises the issue of alibi, it is the duty of the trial judge to give instructions on that issue, without request. And failure to so instruct is error as this deprives the accused of his constitutional right to a fair trial. In other words, failure to so instruct affects the fundamental fairness of the trial and requires recognition of the unassigned error and reversal. The State assigns as their second contention that the court below misapplied Poe. With this, we agree.

A close reading of Poe and its foundation cases reveals that the case stands for the proposition that the evidence must first Fairly raise the defense of alibi before this Court will reverse for failure to charge. In Poe, this Court stated:

'The trial judge charged the jury upon the subject of reasonable doubt, but failed to give them any instruction on the issue of alibi. While there was no special request for such instruction, we think, In the circumstances of this case, that it was the duty of the Trial Judge, without any request, to give the jury proper instructions which would fairly submit to them this issue of defendant's alibi. It was fundamental to his defense and such instruction was essential to a fair...

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  • State v. Adkisson
    • United States
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    ...163 U.S. 632, 658, 16 S.Ct. 1127, 1137, 41 L.Ed. 289, 298 (1896); State v. Mackey, 553 S.W.2d 337, 340 (Tenn.1977); Manning v. State, 500 S.W.2d 913, 914 (Tenn.1973); Davidson v. State, 223 Tenn. 193, 208-09, 443 S.W.2d 457, 464 (1969); Huffman v. State, 200 Tenn. 487, 494-95, 292 S.W.2d 73......
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