State ex rel. Austin v. Johnson

• Decision Date: 03 June 1966
• Parties: , 218 Tenn. 433 STATE of Tennessee ex rel. Billy Raymond AUSTIN v. Wilburn JOHNSON, Warden Tennessee State Penitentiary.
• Court: Tennessee Supreme Court

Page 244

404 S.W.2d 244

22 McCanless 433, 218 Tenn. 433

STATE of Tennessee ex rel. Billy Raymond AUSTIN v. Wilburn JOHNSON, Warden Tennessee State Penitentiary.

Supreme Court of Tennessee.

June 3, 1966.

Franklin Murchison, Jackson, for plaintiff in error.

George F. McCanless, Atty. Gen., and Edgar P. Calhoun, Asst. Atty. Gen., Nashville, for the State.

OPINION

BURNETT, Chief Justice.

This appeal results from the denial of a petition for habeas corpus on behalf of Austin.

In September, 1964, the grand jury returned two indictments against Austin. In each indictment he was charged with burglary in the third degree, larceny and receiving and concealing stolen property.

The case came on for trial in October, 1964, and Austin plead guilty to petit larceny as included in the second count of each indictment, and received a sentence of not more than two years in one case and of not more than three years in the other case. It was ordered that these sentences be served consecutively. Of course, the practical effect of the sentences is that the petitioner was sentenced to serve not less than two years nor more than four years in the penitentiary. See T.C.A. Sections 39--4204, 40--2708, 40--2710 and 40--2711.

While serving his time at the Shelby County Penal Farm Austin filed his first petition for habeas corpus, alleging that he was only seventeen years of age at the time of his conviction. This was joined in by the State and on December 10, 1964, the Criminal Court of Shelby County held that the petitioner was, in fact, only seventeen years of age at the time of these convictions, and that he had not been remanded to the juvenile court as required by law. T.C.A. § 37--242, § 37--243.

The trial court suspended the sentences and ordered the petitioner released from custody. On December 21, 1964, the juvenile court waived jurisdiction over petitioner and remanded him to the Criminal Court to be tried as an adult, pursuant to T.C.A. § 37--264, sub-section (1)(a).

At the January Term, 1965, the grand jury of Shelby County re-indicted petitioner for the same offenses, returning two indictments, each in three counts, as before. A motion to dismiss the indictments was filed, setting up the defense of former jeopardy. This motion was overruled. Thereafter, the petitioner entered pleas of guilty to the first count in each indictment, that is, burglary in the third degree, and was sentenced to three years in each case, the sentences to run concurrently. The practical effect, of course, of these sentences is that petitioner must serve no less than three years and not more than three years in the penitentiary. The petitioner was given credit for time spent in the workhouse before the commencement of his new sentences.

While the petitioner was serving the second set of sentences he filed a second petition for habeas corpus against the Warden of the State Penitentiary at Nashville, alleging he was, in fact, seventeen years old when convicted the first time, that he was thereafter released on his petition for the writ of habeas corpus, and that he was subsequently re-indicted and convicted a second time for the same offenses. This petition was filed in the Davidson County Criminal Court and was transferred pursuant to the statute to the Criminal Court of Shelby County for disposition, where the present suit was heard. In this suit an answer was filed in behalf of the Warden wherein the issue basically was the defense of former jeopardy. The Assistant Attorney General takes the position that this had been disposed of when the petitioner's motion was disposed of prior to his second conviction and that no jeopardy attached in the first transaction because the convictions were void.

The record contains considerable testimony of the hearing of the second petition. It is undisputed in this testimony that this petitioner was actually seventeen years of age at the time of his first convictions. There is much evidence though petitioner mislead authorities into prosecuting him as an adult the first time. At the time of his arrest the petitioner carried on his person a driver's license, employment card and draft card, all showing his age to be twenty. In addition, the petitioner admitted his age to be twenty at the time.

This appeal is limited to the question of whether or not Austin was twice placed in jeopardy when he was indicted and sentenced under the two cases above referred to. It is his contention, ably made, that the original judgments, or convictions, were erroneously set aside in the first habeas corpus proceeding for the reason that petitioner's age was not reflected upon the original judgments and, therefore, the original judgments were valid against collateral attack by habeas corpus. The argument in support of this contention is that the Criminal Court of Shelby County in sentencing the petitioner in the first case was a court of general jurisdiction. Bomar v. State ex rel. Stewart, 201 Tenn. 480, 300 S.W.2d 885, and State ex rel. Potter v. Bomar, 209 Tenn. 577, 354 S.W.2d 767.

Under the holding of the Court in Bomar v. State ex rel. Stewart, supra, it is contended the issue of age at the time of the conviction cannot be collaterally questioned when such infirmity is not reflected upon the face of the judgment, and that since the judgment in the first instance did not show the age of the boy the trial court had no right and authority to grant these petitions in view of our holding in the Bomar case. It is said in effect that since these judgments and first sentences cannot be collaterally attacked because the Criminal Court was one of general jurisdiction it cannot be said, since they were set aside, that the petitioner was not placed in jeopardy as he could have been required to serve the sentences imposed upon him under this first sentencing. In Bomar v. State ex rel. Stewart, supra, this Court did hold that when jurisdiction is lacking because of the age of accused there can be collateral inquiry, but the Court in its opinion made this statement:

'It may be that this Court in many cases involving a juvenile will feel the necessity of making an exception to this rule denying collateral attack in order to carry out this public policy purpose.'

In the Bomar case there had been an adjudication of the age at the time of the conviction, and that court of record had found that the accused was eighteen years of age. Later in the habeas corpus proceeding the youth attempted to prove he was only seventeen years of age. This Court held that we could not go behind this judgment and conviction in such a collateral proceeding to show that the judgment was void, when such an infirmity did not show upon the judgment itself subject, of course, to the statement just above quoted from the opinion.

The situation in the present case is not in point with the Bomar case. This is not an appeal from the habeas corpus proceeding which overturned the petitioner's first conviction because of his age. There was no appeal to overturn this conviction and the petitioner was set free and re-indicted and under the second indictments found guilty, and it was from these indictments and conviction that the present petition is filed. If the trial court erred in applying the law of habeas corpus, as to these first judgments, then the judgment in the petitioner's favor in these first habeas corpus proceedings is not void because the court did have jurisdiction. This Court held such when the State argued a habeas corpus judgment was wrong in Stinson v. State, 208 Tenn. 159, 344 S.W.2d 369. See also Fong Foo v. United States, 369...