Simmons v. State

• Decision Date: 06 May 1955
• Citation: 281 S.W.2d 487,2 McCanless 587,198 Tenn. 587
• Parties: , 198 Tenn. 587 James Howard SIMMONS v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 487

281 S.W.2d 487

2 McCanless 587, 198 Tenn. 587

James Howard SIMMONS v. STATE of Tennessee.

Supreme Court of Tennessee.

May 6, 1955.

Rehearing Denied Aug. 2, 1955.

Maddox, Maddox & Lassiter, Huntingdon, for plaintiff in error.

Knox Bigham, Asst. Atty. Gen., for the State.

BURNETT, Justice.

This appeal is from a conviction of possessing whisky wherein the plaintiff in error was fined $300 and given a six-month workhouse sentence.

The State has made a motion:

'1. To strike the entire transcript and dismiss the appeal. This for the reason that the instrument purporting to be a transcript of the record is nowhere authenticated by the Clerk of the lower Court as being a true and correct copy * * *.

'2. The instrument purporting to be a bill of exceptions, be stricken from the record. The order overruling the motion for a new trial is not dated. This order allowed sixty days for the filing of the bill of exceptions but in the state of the record it is impossible to determine when the sixty days commenced or expired. The signature of the trial judge to the bill of exceptions is not dated and it does not appear that the bill of exceptions was ever filed with the Clerk of the lower Court.'

To this motion the plaintiff in error has filed a statement of the Clerk of the Circuit Court accompanied with a certified copy of the verdict, motion for new trial, the overruling thereof which shows that the same was filed on March 5, 1954 and that it was entered on the minutes of that date, that is, the motion for new trial was filed on March 5, 1954, it was overruled on the same date and the order overruling it was entered on the minutes of the court on the same date. This statement of the clerk of the court also shows that the original bill of exceptions contained the notation that:

'Filed March 30, 1954, Willie B. Joyner, Deputy Circuit Court Clerk.'

There is no certificate or showing by the Clerk or is the transcript authenticated as a true and correct copy. Too, the signature of the trial judge to this purported bill of exceptions is not dated. With these exceptions, that is, these corrections of the transcript as are authorized by the diminution of the record, and an act of the Legislature of 1955 regulating the authentication of a bill of exceptions the transcript of the bill of exceptions can be considered by us.

Frankly we dislike very much to get these transcripts wherein the bill of exceptions has not been properly authenticated or certified and thus we are required under the authorities of this State, of more than 100 years, to sustain a motion to dismiss the appeal with the exception of things that can be considered on the technical record. It is much easier for us in working up the case, and it is far preferable, to consider the case on the merits rather than on these technicalities. The latest case on the question is that of Wilson v. State, 197 Tenn. 17, 270 S.W.2d 340. This case cites some of the case and particularly that of Burkett v. Burkett, 193 Tenn. 165, 245 S.W.2d 185 which has a very clear analysis of prior decisions dating back to Davis v. Jones, 40 Tenn. 603, setting forth controlling precedence for the conclusion that we are forced to reach of why we cannot consider a case on its merits. See also Hamilton v. Wolfe, 194 Tenn. 428, 250 S.W.2d 910. The motion of the State thus will have to be overruled.

A highway patrolman searched an automobile upon one of the State highways and found therein six cases of whisky. This search was made without a search warrant and of course when that was determined in the course of the trial upon motion of the defense the jury was excused and the highway patrolman interrogated at length on this question. The substance of his testimony was to the effect that a short time before he stopped this car of the plaintiff in error and searched it he had been stopped by an informer near the West End Station in the City of Huntingdon and told that a certain automobile, describing it, would be traveling along this highway, where he was eventually detained and arrested and searched and six cases of whisky found.

At this point the defense asked the highway patrolman the name of the informer. When the highway patrolman declined to give it in the first instance, and later that he did not know it, the defense moved to take the case from the jury because the patrolman refused to furnish the name of his informer. The basis of this motion was our case of Smith v. State, 169 Tenn. 633, 90 S.W.2d 523. This case was recently affirmed in Shields v. State, 197 Tenn. 83, 270 S.W.2d 367, on somewhat the reverse of the proposition to that in the Smith case. In other words in the Shields case the constable Shields was being prosecuted for shooting or an unlawful act in Blount County and part of his defense was that he had been informed that there was a felony about to be committed and when he was asked who his informer was the trial judge required him to give the name of his informer and it was under this that this Court then overruled one of Shields' assignments of error on appeal in holding that the trial court was correct in requiring Shields to give the name of his informer. It so happened in the Smith case that this Court concluded the informant's name was necessary so that he might be called to see if the officer's information was reasonable.

It seems to us that the instant case is entirely different from either of those. In the case now before us the highway patrolman testified that the man who had informed him was a resident of Carroll County and that this informant had previously given him information which had always been reliable. Of course this was objected to by the defense and a very interesting argument is made of why this evidence of previous information should not be given. We must remember that the information thus elicited from the patrolman and the statements made here are all in the absence of the jury. Here the trial judge is investigating as to where the information came from and we think that if he determines from this investigation that the information furnished the officer upon which the arrest and search were made was from a reliable source which the officer was justified in believing that he thus may act upon such information. It seems to us that the reason for the rule announced in the Smith case supra, is to permit an inquiry into the reasonableness of the ground of the officer's belief that a felony is being committed. Thus when the trial judge has the slightest doubt or any doubt about the question he may require the informant's name to be given so that the informant may be summoned and interrogated if it is necessary to do so to get at the reasonableness of his belief that a felony is about to be committed. Of course if the name of this informer is given this permits further inquiry into his reliability and gives the court adequate information upon which to base a conclusion about the matter. The Smith case, supra, does not say that it will be mandatory that the name of the informer be given in all cases where there is not a warrant but it is to the effect that the name of the informer may be required for such an inquiry. The Smith case, supra, does not have the effect of holding that the search will be invalid simply because the officer does not know the name of the informer. It seems to us that this is just a way of emphasizing what the trial court should do and to be satisfied that there was a reasonable ground for the officer's belief that a felony was about to be committed. Of course it oftens happens that the name of the informer is concealed for many reasons, but if the trial court from other things that it hears is satisfied of the reasonableness of the information that a felony is about to be committed then it seems to us that it is the duty of the trial court to go ahead and permit the evidence of the search. In the case it was the testimony of the officer that he had previously acted upon ihnformation of this informer and that he had found this information reliable. Further the fact that this man's information had proven to be correct as to the amount and route, as well as to the description of the automobile. It seems to us thus for these reasons that the evidence presented justified the trial judge in finding that the highway patrolman had reasonable grounds for believing that a felony was about to be committed.

It seems to us that the rule--and a fair rule--to be followed in this State is that which is set out in Jones v. State, 161 Tenn. 370, 33 S.W.2d 59 which is to the effect that if the information comes from a reliable source, which the officer is justified in believing, he may act upon it. Judge Chambliss in writing this opinion referred to various others including that of Dittberner v. State, 155 Tenn. 102, 291 S.W. 839 and an unpublished opinion of Martin v. State, wherein the difference between an arrest for a felony and a misdemeanor and the right to do so is set out. In conclusion he says this [161 Tenn. 370, 33 S.W.2d 61]:

'The fact that the informant gave his information in such detail, that this advance information was corroborated by the appearance at the time and place of the party accused, further supported by the appearance of the informant on the spot and his identification of the accused, or circumstances which, taken together, afforded a reasonable cause under our statute for the arrest.'

This rule as announced in the Jones case is the universal rule as far as we can find. The question is annotated in 74 A.L.R. pp. 1390 and 1429. The Jones case has been repeatedly followed by us and particularly in Thompson v. State, 185 Tenn. 73, 203 S.W.2d 361, and Epps v. State, 185 Tenn. 226, 228, 205 S.W.2d 4, an opinion in which the writer of the present opinion wrote wherein the distinction is pointed out. A review of all recent authorities (checking on this in Shepard's) shows us that Jones v. State, supra,...