Mowery v. State
| Decision Date | 08 December 1961 |
| Citation | 352 S.W.2d 435,13 McCanless 250,209 Tenn. 250 |
| Parties | , 209 Tenn. 250 Jack MOWERY, Plaintiff in Error, v. STATE, Defendant in Error. |
| Court | Tennessee Supreme Court |
Billy R. Ridenour, Sweetwater, for plaintiff in error.
Lyle Reid, Asst. Atty. Gen., for defendant in error.
The plaintiff in error, defendant, was indicted for armed robbery, tried and convicted and sentenced to serve ten years in the State Penitentiary. The verdict of the jury was approved by the trial court and the defendant has now appealed to this Court and assigned certain errors, including one to the effect that there is no material evidence to support the verdict and that the evidence preponderates against the verdict and future that the defendant was indicted, tried and convicted under the armed robbery statute being Sec. 39-3901 T.C.A. when the indictment and prosecution should have been under Sec. 2-2201 T.C.A., or Sec. 39-4207 T.C.A. These sections of the Code will be referred to hereinafter.
Four witnesses for the State appeared and testified that an election was being held on August 4, 1960, and that three of them were officials of such election. Sometime between the hours of 2:45 o'clock and 4:00 o'clock, P.M. two men armed with pistols entered the Ho Precinct of Monroe County where the election was being held and by threatening to shoot the election officials if they interfered, took from their possession and against their will the ballot box containing the ballots of voters and voter registration books. The testimony is to the effect that the defendant Mowery was the person who took the ballot box at the point of a pistol and that during the commission of the offense he threatened to blow out the brains of one or more of the election officials unless they complied with his orders and got over against the wall. The defendant testified to an alibi and he was supported in this defense by several witnesses among them being a constable by the name of Cochran and several other witnesses whose testimony it will not be necessary to detail in this opinion. It is sufficient to say that the jury found beyond a reasonable doubt that the defendant was guilty of armed robbery in violation of Sec. 39-3901 T.C.A. as charged in the indictment, the pertinent part of said indictment being that:
'Jack Mowery did on the 4th day of August, 1960, with force and arms, in the County of Monroe aforesaid, then and there, unlawfully, feloniously and forcibly did take by force and violence, accomplished by the use of a deadly weapon, to-wit: a pistol, from the person of A. M. Stakley, the office and Bernard Caughron, Robert J. Dailey and Riley Waton, the judges of the Ho voting precinct of Monroe County, Tennessee and from their custody, and against their will, one ballot box, lock and Registration Book of a value of Ten ($10.00) Dollars, which ballot box, lock and registration book were in the custody and control of the said A. M. Stakley, Bernard Caughron, Robert J. Dailey and Riley Watson at the said time and place.'
Sec. 39-3901 T.C.A. under which section this defendant was indicted, tried and convicted provides as follows:
Therefore, the defendant was tried under a section of the Code of Tennessee which allows the jury, and did allow the jury in this case, to inflict the death penalty by electrocution. As a matter of fact, that is the penalty provided for in said section with the proviso that the jury may commute the punishment to imprisonment for life or for any period of time not less than ten years.
There is another section of the Code which provides for punishment for breaking up an election, the same being Sec. 2-2201 T.C.A., as follows:
'If any person by force or violence break up or attempt to break up any legalized political convention, primary or final election by assaulting the officers thereof, or by destroying or carrying off the ballot box, or by the use of other forcible or violent means to prevent a nomination being fairly made, or election from being fairly and legally conducted, he shall be guilty of a misdemeanor.'
There is another section of the Code being Sec. 39-4207 which, at first blush might also apply to the facts of the case at bar, said Code section being as follows:
'Any person who shall feloniously steal or take by robbery, any writ, process, or public record; any bond, promissory note, bill of exchange, order, or certificate; any book of accounts respecting goods, money or other things any deed or contract in force; any receipt, release, or defeasance; any instrument of writing whereby any demand, right, or obligation is created, ascertained, increased, extinguished, or diminished; or any other valuable paper writing, shall be punished by imprisonment in the penitentiary not less than three (3) years nor more than fifteen (15) years.'
There is another section being Sec. 39-1942, which provides:
'Any person who takes or destroys any of the articles embraced in § 39-4207, with the intent to injury or defraud, shall be punished as if guilty of larceny.'
In the case of State v. Lewis, 198 Tenn. 91, 278 S.W.2d 81, the Court in dealing with two statutes prohibiting the same wrong and prescribing different degrees of punishment which is the exact situation we have in this case, i. e., the armed robbery statute provides for punishment by death and the statute relating to breaking up elections prescribes the penalty as a misdemeanor, the Court said:
'Two statutes prohibiting the same wrong and prescribing different degrees of punishment cannot exist at same time.'
The legislative body of our government has anticipated that such a conflict in our statutes might arise and in order to provide for such a contingency and to clarify such a situation, it has enacted Sec. 1-303 T.C.A. as follows:
'If provisions of different titles or chapters of the Code appear to contravene each other, the provisions of each title or chapter shall prevail as to all matters and questions growing out of the subject-matter of that title or chapter.'
In the case of Haley v. State, 156 Tenn. 85, 87, 299 S.W. 799, 800, the indictment charged that the defendant drew a check on a named bank for $10.00 and procured J. S. Hall's Sons to cash same. Since he had no account at such bank, said check was protested for nonpayment. In the second count of the indictment, the defendant was charged with procuring $5.00 in the same manner from Nu-Way Dry Cleaning Company. The defendant, in that case, was indicted on two counts predicated upon procuring money under the False Pretense Statute. The Court held that Ch. 178, Acts of 1915, covered the entire subject-matter of fraudulently obtaining money or other property by means of a check which was not paid and that said Act superseded and repealed so much of the former Act as deals with that subject. In other words, the bad check statute of 1915, together with the penal provisions cover the entire subject-matter of obtaining money by means of a worthless check and the Court, speaking through Mr. Justice McKinney, stated:
.
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(Emphasis supplied)
In the case of State ex rel. v. Safley, 172 Tenn. 385, 112 S.W.2d 831, 833, the Court said:
'A special provision in a statute will control a general provision which would otherwise include that mentioned in the particular provision.'
In the case of Burnett v. Maloney, 97 Tenn. 697, 37 S.W. 689, 34 L.R.A. 541, the Court said:
This rule is founded upon or expressed by the maxim, Generalia specialibus non derogant, i. e., general words do not derogate from special.
Again, in the case of State v. Safley, supra, the Court held [...
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State v. Welch
...other."Two statutes prohibiting the same wrong and prescribing different degrees of punishment cannot exist at same time." Mowery v. State , 352 S.W.2d 435, 437 (citing State v. Lewis , 198 Tenn. 91, 278 S.W.2d 81, 82 (1955) ). The burglary statute and the "serial shoplifter" statute prohib......
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...intent in enacting the serial shoplifting statute was to repeal subsection 39-14-402(a)(3) by implication. See Mowery v. State, 352 S.W. 2d 435, 438 (Tenn. 1961) (quoting State v. Lewis, 278 S.W.2d 81, 82 (Tenn. 1955)) ("Two statutes prohibiting the same wrong and prescribing different degr......
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Gatlin v. State
...either with or without a repealing clause, and notwithstanding it may omit material provisions of the earlier statutes." Mowery v. State, 352 S.W.2d 435,438 (Tenn. 1961) (citation omitted). Tennessee Code Annotated section 40-30-105(b), which covers the same subject as the statute at issue ......
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Horn v. State
...supplied.) 198 Tenn. at 95, 278 S.W.2d at 82. This is precisely the situation in the instant case. This Court, in Mowery v. State, 209 Tenn. 250, 352 S.W.2d 435 (1961), in an excellent and exhaustive opinion by the late Justice Weldon White, further amplified and clarified these rules of co......