State ex rel. Grandstaff v. Gore

• Decision Date: 06 January 1945
• Citation: 184 S.W.2d 366,182 Tenn. 94
• Parties: STATE ex rel. GRANDSTAFF v. GORE, Warden.
• Court: Tennessee Supreme Court

184 S.W.2d 366

182 Tenn. 94

STATE ex rel. GRANDSTAFF v. GORE, Warden.

Supreme Court of Tennessee.

January 6, 1945

Error to Criminal Court, Davidson County; Charles Gilbert, Judge.

Proceeding by the State, on the relation of one Grandstaff, for a writ of habeas corpus to Tom Gore, Warden of the State Penitentiary, to secure relator's release therefrom. Judgment dismissing the writ, and relator brings error.

Affirmed and writ denied.

Homer B. Weimar, of Nashville, for appellant.

Nat Tipton, Asst. Atty. Gen., for appellee.

CHAMBLISS Justice.

This appeal is from a judgment of the Criminal Judge of Davidson County dismissing a writ of habeas corpus by which the relator Grandstaff seeks to secure his release from the State Penitentiary.

In 1940, Grandstaff was convicted in Shelby County of housebreaking and larceny, of which he had been charged in the indictment. The jury, in addition to finding him guilty of the offense charged, also found that he was an habitual criminal. Thereupon, he was duly sentenced to life imprisonment, in accordance with the provisions of Chapter 22, Public Acts of 1939.

It appears that the accused prayed and was granted an appeal from this judgment at that time, but filed no bill of exceptions, and the judgment was affirmed.

Relator (1) challenges the validity of the judgment in that it sentences him to life imprisonment upon a recital of a conviction of housebreaking and larceny only, and (2) he says that he was deprived of a fair trial in that he was not given notice that he would be prosecuted as an habitual criminal until so short a time before his trial that he had no opportunity to prepare and present his defense to this charge, and that (3) if he had had this opportunity he would have been able to show that he had been formerly convicted only twice of offenses of the nature and degree prescribed by the habitual criminal statute above cited.

Looking to the technical record only, which is all that was brought up on the original appeal, when the return of the jury, as appears from the minutes, found the accused guilty of the offense charged in the indictment of housebreaking and larceny, and, also, that he was an habitual criminal, the judgment below, as was shown by the minutes, not only properly adjudged him guilty of the offense of housebreaking and larceny, but, as required by the terms of the Act, fixed his punishment therefor at life imprisonment. Being an habitual criminal is not made an independent offense. The Act provides only that if, upon conviction of a felonious offense, it is made to appear that the accused has a record of crime which brings him within the terms of the Act, then his punishment for the offense for which he is then tried shall be life imprisonment. McCummings v. State, 175 Tenn. 309, 134 S.W.2d 151; Tipton v. State, 160 Tenn. 664, 28 S.W.2d 635; 25 Am.Jur., 260, § 1; Notes 58 A.L.R. 20; 82 A.L.R. 345; 116 A.L.R. 209; 24 C.J.S., Criminal Law, p. 1143, § 1958. This judgment, which was affirmed by this Court, was neither void nor on its face voidable.

It is true that in the judgment of affirmance in this Court there is no recital of this finding that the accused was an habitual criminal, in explanation of the fixing of the term of imprisonment at life. As shown, the judgment below is not subject to objection in substance, or in form. Conceding, but not deciding, that the judgment of affirmance in this Court called for a recital of this explanatory matter (despite the fact that the judgment here is based on that below, which may be looked to), the motion heretofore made and now pending to amend the judgment entry in this Court is granted.

There are several procedural obstacles in the way of the attempt of relator by this proceeding to re-open and have a retrial of his case, contrary to well established practice. The writ of habeas corpus may not be made to perform the office of a writ of error. It is available only when the judgment assailed is void, or when the term of imprisonment has expired. State ex rel. Karr v. Taking District, 84 Tenn. 240; Lynch et al. v. State ex rel. Killebrew, 179 Tenn. 339, 166 S.W.2d 397. Moreover, as we said in Adams v Russell, 179 Tenn. 428, at page 434, 167 S.W.2d 5, in concluding that opinion, in any event, this application, as was true in that case, is premature. It can hardly be seriously questioned that the relator is legally subject to imprisonment for the term fixed by the statute for housebreaking and larceny, of which it is undisputed that he was legally convicted, and which term has not expired, and no presumption obtains that one with such a confessed criminal record would be granted parole.

However waiving these considerations, we have elected to examine the merits which the relator now belatedly seeks to set up and rely on and see whether or not, even if he had produced on the hearing of his case all the evidence he now proposes to submit, the result would have been affected.

Relator rightly construes our habitual criminal statute as justifying the infliction of life punishment upon a conviction of an offense which would render him infamous only when it is made to appear that he has been theretofore convicted of three separate offenses of the grade and nature specified. The particular insistence which we understand to be made by the relator is that, while he had theretofore been convicted in other States of more than the required number of offenses, only two of them were within the prescribed terms of our statute. To be more specific, it appears to be conceded by relator that, while, prior to his conviction in Shelby County in 1940 of larceny and housebreaking, he had been convicted of other offenses, twice in Wisconsin, once in Michigan, once in New York and once in Texas, only one of his convictions in Wisconsin and his...