Rosenthal v. State

• Decision Date: 05 April 1956
• Citation: 292 S.W.2d 1,4 McCanless 178,200 Tenn. 178
• Parties: Gerard ROSENTHAL v. STATE of Tennessee. 4 McCanless 178, 200 Tenn. 178, 292 S.W.2d 1
• Court: Tennessee Supreme Court

Page 1

292 S.W.2d 1

Gerard ROSENTHAL v. STATE of Tennessee.

4 McCanless 178, 200 Tenn. 178, 292 S.W.2d 1

Supreme Court of Tennessee.

April 5, 1956.

Rehearing Denied June 8, 1956.

Wilkes & Haynes and Gwinn & Gwinn, Memphis, for plaintiff in error.

Nat Tipton, Advocate General, Nashville, for the State.

SWEPSTON, Justice.

Gerard Rosenthal was indicted for the homicide of Richard Carter, was found guilty of murder in the first degree and sentenced to death by electrocution, from which he has appealed.

There are eleven assignments of error, the first two of which are respectively no evidence to support the verdict and that the evidence preponderates against the verdict of guilty and in favor of the innocence of the defendant.

We have reviewed the evidence under these two assignments and have overruled them. Same is filed with the Clerk of the Supreme Court, but need not be included for publication of this opinion.

The third assignment of error is that 'the constitutional rights of defendant were violated by holding him incommunicado for six days after his arrest, conducting a preliminary hearing in the private office of Inspector Wiebenga instead of in the Court room, and denying him access to counsel during that period of time; this interference with his constitutional rights, including his arraignment in the second division of the Criminal Court in the absence of counsel employed by him and known to be representing defendant by the public prosecutors.'

Counsel did not see fit to discuss this assignment and the only Tennessee cases cited are inappropriate. Giles v. State, 185 Tenn. 429, 206 S.W.2d 412, was where a confession was ruled inadmissible in evidence because the accused had been questioned by a magistrate whom he considered to be questioning him simply as his friend, and he answered the questions that the magistrate asked him. Poindexter v. State, 183 Tenn. 193, 191 S.W.2d 445, was a case where, after counsel was appointed for an indigent prisoner, he was given only ten minutes in which to prepare his defense, which of course, was held to be inadequate. The case of Woods v. State, 99 Tenn. 182, 41 S.W. 811, which is cited as 199 Tenn. erroneously, does not touch any question involved in this assignment.

In Wynn v. State, 181 Tenn. 325, 181 S.W.2d 332, this Court has held that the investigating officers may detain a suspect for a reasonable length of time, 72 hours in the case cited, for the purpose of making an investigation, pointing out that in the Ashcraft case it was not the detention of the defendants for 36 hours, but was the mistreatment they received which caused the Supreme Court, Ashcraft v. State of Tenn., 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192, to hold that the confession obtained under those circumstances was inadmissible. See, also, the case of East v. State, 197 Tenn. 644, 277 S.W.2d 361. There is no claim to any physical mistreatment in this case.

The only showing at all on the question of whether he was denied the right to counsel is the defendant's own affidavit for the purpose of the motion for a new trial. But the police officers testified that he said that he did not want to employ private counsel, that the defendant said that he did not want an attorney at that time but that he would be defended by the Public Defender. The Trial Judge settled that question so far as we are concerned when he overruled the applicable grounds of the motion for a new trial. As a matter of fact the record reflects that the Public Defender and the City Judge Boushe did see to it that a plea of not guilty was entered for him.

It is not shown in any way that the defendant was prejudiced by anything that was done and it is not amiss to note that in Steele v. State, 189 Tenn. 424, at page 432, 225 S.W.2d 260, this Court said that there is no obligation on the part of the Trial Court to appoint counsel for one charged with a crime until arraignment on the formal charge against him because it is only when the indictment is returned that it can be ascertained that such person will be charged with crime and entitled to appointment of counsel. Defendant's counsel suggest that they would have filed a petition for writ of habeas corpus if they had known he was being detained; however, it is purely speculative as to whether or not such would have been effective and we cannot assume that it would have been effective.

The fourth assignment is that the Trial Court erred in allowing the former District Attorney General John Heiskell, who was still in office when the indictment was returned, to testify that no promises were made to Tuzzo and that his statements were corroborated. The record failed to show that there was any objection to this testimony and any exception preserved with reference to it or made a ground or a motion for a new trial. It is not therefore available to the defendant on this appeal. Moreover, in reading the record we think that when the Attorney General made the statement that Tuzzo's statement was corroborated, his attention was directed more to the statement of Tuzzo as to where the gun was concealed in the woods near Tunica, which statement was in truth later corroborated because the gun was found there.

This assignment is overruled.

By the fifth assignment of error complaint is strenuously made that the Court erred in failing to declare a mistrial when the Assistant Attorney General stated in the presence of the jury that it was a frame-up when counsel for plaintiff in error and the expert witness Raney were in the act of trying to make a demonstration before the jury.

It must be conceded that the Assistant Attorney General was entirely out of order in making such remark and that he deserved the reprimand given him by the Court and that defendant's counsel had adequate reason to be incensed personally at such an accusation. The record shows, however, perfectly clearly that the Trial Judge immediately excluded the jury and that a number of jurors testified they did not hear the remark and they wondered why the Judge had excluded them from the room. It seems that the lawyers immediately engaged in quite a confused wrangle and babel of voices among themselves but no juror testified he heard the remark and they obviously did not understand what was occurring, so we are unable to see where the defendant was prejudiced in any way.

The assignment must, therefore, be overruled.

By the sixth assignment complaint is made of the failure of the Trial Court to grant the new trial for newly discovered evidence. This evidence consisted of the affidavit of a 17-year-old girl who lived down in Mississippi, and with whom Tuzzo was acquainted and had had some dates. She says she came to Memphis and visited Tuzzo in jail and that he told her that the defendant and he did not plot the murder of deceased, and that Tuzzo told her that Rosenthal told Tuzzo that it was an accident.

It is true that this girl came up to Memphis to see Tuzzo while he was in jail but it appears from the record that she stayed at a second-rate hotel and while there the police of Memphis paid her a call in her room and they testified that there was a man in the room with her at that time.

Defendant relies on Taylor v. State, 180 Tenn. 62, 171 S.W.2d 403, in which case there was a prosecution for unlawful intercourse with a girl under the age of consent, and the defense was that she was unchaste and a bawd and lewd woman within the meaning of the statute. The Court there held that there was a showing of reasonable diligence, that these two new witnesses were not available at the time of the trial, and the offered evidence was not merely cumulative or of an impeaching nature, but was such that their testimony would probably bring about a different result because they proposed to testify that each of them had intercourse with this girl.

We do not think the Court erred in refusing to grant a new trial for two reasons. It appears that this interview took place on January 30, 1955, while both Tuzzo and Rosenthal were in the Shelby County jail and that the trial occurred on March 14 thereafter. To put it mildly, it is passing strange that this girl knew Rosenthal, as the record reflects she did, and she acquired this valuable information from Tuzzo, but did not impart same to Rosenthal or his two lawyers. So far as the record shows there was no showing of diligence by the defendant or his counsel as is required under Ross v. State, 130 Tenn. 387, 170 S.W. 1026....