Phillips v. State
| Decision Date | 22 May 1969 |
| Citation | 1 Tenn.Crim.App. 352,443 S.W.2d 515 |
| Parties | William R. PHILLIPS, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. |
| Court | Tennessee Court of Criminal Appeals |
Joe P. Binkley, Nashville, for plaintiff in error.
George F. McCanless, Atty. Gen., Robert H. Roberts, Asst. Atty. Gen., Nashville, Will Terry Abernathy, Dist. Atty. Gen., Covington, for defendant in error.
Plaintiff in error, William R. Phillips, appeals from the verdict of a jury and the judgment of the Circuit Court of Tipton County of an attempt to commit the felony of burglary and the resulting one (1) to five (5) year sentence.
The particular crime involved was an attempt to break into the coin receptacle of a public telephone located in a booth outside Dorsey Robbin's Motel on Highway 50 in Covington.
The only assignment of error addresses itself to the verdict which the defendant contends was so unintelligible as to render it invalid.
As originally reported by the foreman of the jury, the verdict was somewhat confusing. As read to the court the verdict was, 'Guilty of an attempt to commit burglary or larceny; sentence, one to five years in the penitentiary.'
The trial court by judicious inquiry corrected the confusion: 'Gentlemen, if I understand your verdict, you find the defendant guilty of attempt to commit burglary, and you sentence him to a maximum of five years in the State Penitentiary.' To which the foreman agreed by responding, 'One to five,' and by nodding his head affirmatively.
The trial judge then passed formal judgment on the defendant who was asked to stand:
'William R. Phillips, on the jury's finding of guilty of attempt to commit burglary, the Court sentences you to a minimum of one year and a maximum of five years in the State Penitentiary.'
We find nothing unintelligible about the verdict and certainly the judgment as pronounced by the court is clearly based on the verdict which sustains it.
The technical record recites the verdict as read by the foreman rather than the corrected verdict as elicited by the judge as set out in the Bill of Exceptions. It is well settled law in this state that the recital in the Bill of Exceptions concerning the verdict is controlling over a contrary Minute entry. Helton v. State, 195 Tenn. 36, 255 S.W.2d 694.
Actually, it makes little difference how garbled the verdict is so long as the trial judge makes sure he understands the meaning of the jury before entering the judgment which must be based and rendered upon the verdict. This was clearly done in this case. That the verdict may have been unintelligible in its original form does not affect the validity of a sound judgment based upon the correct meaning of the verdict as explained by the foreman in response to corrective inquiry by the judge. It is not the verdict, but the judgment that must withstand the ultimate test of intelligibility. 'A verdict as such, is not appealable; only a judgment rendered on the verdict is appealable.' 4 Am.Jur.2d (Appeal & Error, § 77.)
The verdict, even if not corrected, would not have been disjunctive because larceny is included in the offense of burglary. In order to resolve ambiguity, under proper circumstances, it has been held 'that the disjunctive 'or' may, in some cases, be properly interpreted to mean the conjunctive Baldwin v. State, 213 Tenn. 49, 372 S.W.2d 188.
But by his commendable actions the trial judge removed any ambiguity as to what the jury meant and correctly pronounced judgment in accordance with their findings. That judgment is affirmed.
The indictment in this case charged the defendant with entering a pay-telephone booth 'with the intent to commit the felony of larceny,' and that after doing so he committed third degree burglary by breaking the coin receptacle, 'all in Violation of Section 39--904 and 39--902 of Tennessee Code annotated.'
Thus, this indictment charged both an attempt to commit larceny and third degree burglary in the same count, presumably in reliance upon Fox v. State, 214 Tenn. 694, 383 S.W.2d 25, in which our Supreme Court held that if one lawfully enters a public pay-telephone booth and therein breaks into and burglarizes the coin receptacle he is guilty of third degree burglary. However, Fox does not help to resolve the presiding question presented by this record.
The insurmountable difficulty in this case is that the verdict of the jury is in the alternative of disjunctive, in that the jury reported that they found the defendant guilty 'of attempt to commit burglary Or larceny.' And the jury did not change that verdict. Although the court undertook to change the jury's verdict by stating that as he understood it, the jury found the defendant guilty of 'attempt to commit burglary, and you sentence him to a maximum of five years in the State Penitentiary,' the jury foreman only replied, 'One to five.' The court thereupon pronounced sentence:
'WILLIAM R. PHILLIPS, on the Jury's finding of guilty of attempt to commit burglary, the Court sentences you to a minimum of one year and a maximum of five years in the State Penitentiary.'
The court was without any authority to undertake to change the jury's verdict in that manner, and what the court said could not and did not have that effect.
The trial court should have sent the jury back to the jury room with directions to amend their verdict and put it in proper form. State ex rel. Myers v. Brown, 209 Tenn. 141, 351 S.W.2d 385; Riley v. State, 189 Tenn. 697, 227 S.W.2d 32; George v. Belk, 101 Tenn. 625, 49 S.W. 748. What the Court said in George v. Belk is quoted approvingly and reaffirmed in Riley v. State and State ex rel. Myers v. Brown, supra:
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Russell v. State
...Court and the bill of exceptions the recital in the bill of exceptions is controlling over the contrary minute entry. Phillips v. State, 1 Tenn.Cr.App. 352, 443 S.W.2d 515; Bailey v. State, Tenn.Cr.App., 479 S.W.2d 829. It is proper to note this discrepancy for the purpose of the The convic......