State ex rel. Rivera v. Henderson
| Decision Date | 12 January 1967 |
| Citation | 410 S.W.2d 726,23 McCanless 452,219 Tenn. 452 |
| Parties | , 219 Tenn. 452 STATE of Tennessee ex rel. Robert RIVERA, Plaintiff in Error, v. C. Murray HENDERSON, Warden Tennessee State Penitentiary, Defendant in Error. |
| Court | Tennessee Supreme Court |
Paul Welker, Clarksville, for plaintiff in error.
George F. McCanless, Atty. Gen., Paul E. Jennings, Asst. Atty. Gen., Nashville, for defendant in error. W. B. Lockert, Jr. Dist. Atty. Gen., Ashland City, represented the State in the trial court.
This is an appeal by Robert Rivera, now confined in the Tennessee State Penitentiary at Nashville, from the denial of a habeas corpus petition heard in the Circuit Court of Stewart County.
On 12 July 1957 Rivera, along with co-defendants, was convicted of two counts of armed robbery receiving a sentence of fifteen years under each count with said sentences to run consecutively. These two cases are docket numbers 143 and 144. On 30 January 1958 Rivera, along with co-defendants, was convicted of armed robbery, receiving a sentence of ten years. This last case is docket number 146 and it runs consecutively to the sentences in 143 and 144 making a total time of forty years.
There is filed in the record a letter from C. Murray Henderson, Warden of the Tennessee State Penitentiary at Nashville. Under this letter it is apparent Rivera has served the ten year sentence imposed under docket number 146. This leaves at issue only the sentences imposed under docket numbers 143 and 144.
Upon arrest Rivera, along with co-defendants, was given a preliminary hearing before W. H. Keel, a Justice of the Peace in Stewart County. Upon indictment to these charges defendant, along with co-defendants, went to trial on a plea of not guilty. The State called W. H. Keel as a witness who upon direct examination testified as follows:
Q. Now, Squire Keel, before the jury retired, you had testified, and I believe for it to be certain, this may be a little repetition. I would like for you, sir, now so that there can't be any misunderstandings and quibblings about the matter, just state to the Court and jury what did happen after the trial was called? Just go in it fully about all of the occurrences, what occurred?
A. I asked the defendants if they had counsel or somebody to represent them, and they said they didn't have. I asked them if they wanted one, and I told them that they were entitled to counsel and would give them a chance to get them a lawyer if they wanted one. If they wanted one.
And so I later tried to appoint a lawyer for them. Tried to get them a lawyer.
And had Bill Lewis, called Bill Lewis in. He didn't accept it. That is, he said he couldn't accept it on--
THE COURT (interposing) You need not say why he didn't. He didn't accept?
Q. (continuing) That is the legislature in session at that time?
A. At that time I think so.
Q. Was Mr. Atkins a member of the legislature?
A. I think so.
Q. Go ahead.
A. So at that time, Moore asked if he could represent, could act as representative for all of them, or counsel for all of them.
And so I asked them if that was satisfactory and they said yes.
And so he went ahead and acted as a spokesman for all of them.
Q. Just there, did each one of them give his assent to Mr. Moore acting for them?
A. Yes.
Q. Now, of course, you were asked about Mr. Atkins being a member of the legislature, it hand't convened at that time, but was he away? Was he away at that time?
A. I understood that he was.
Q. Not available to say the least of it?
A. That is right, not available.
Q. I believe you have stated that each one agreed or assented that Mr. Moore speak for them?
A. That is right.
EXAMINATION BY THE COURT:
Q. Just one question . Before you go, I want to ask him one question if I may. Before they spoke, Squire Keel, did you advise them that what they said, that they didn't have to make a statement and that what they said would be held against them? Did you advise them of that?
A. After I read the charge to them, I asked each one of them if they had any statement to make, and told them that they didn't have to make a statement unless they wanted to and it would be held against them.
Q. (continuing) Now, under those circumstances, I am not asking you what they did, but under those circumstances did each one of them make a statement to you about their innocence or guilt?
A. They did.
Q. As they were called up?
A. Yes, they pleaded guilty to the charge.
We are faced with the question of whether, is it error requiring reversal, where the State is allowed to prove in the trial under an indictment or presentment on plea of not guilty, that defendant did in fact plead guilty to these charges at the preliminary hearing. This same issue, though under different circumstances, arose in Brooks v. State, 187 Tenn. 67, 213 S.W.2d 7 (1948) where it was held to be error for the State to ask the defendant on cross examination 'if he did not plead guilty to the charge.' This question had reference to a plea of guilty on arraignment which was later changed to not guilty. In the Brooks case Mr. Justice Burnett (Now Chief Justice) in giving the logic and reason for so holding quoted from Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 as follows:
A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full...
To continue reading
Request your trial
-
Rivera v. State
...Court upon appeal from the trial court's dismissal of his petition for the writ of habeas corpus. State ex rel. Rivera v. Henderson, 219 Tenn. 452, 410 S.W.2d 726 (Jan. 12, 1967). The defendant does not question the sufficiency of the evidence to sustain the verdict of the jury. His first a......
-
State ex rel. Phillips v. Henderson
...upon him at his subsequent trial. White v. State of Maryland (1963) 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; State ex rel. Rivera v. Henderson (1967) Tenn., 410 S.W.2d 726. Such would be the case if an accused entered a plea of guilty at the preliminary hearing and testimony was later of......