State v. Black

• Decision Date: 16 June 1975
• Citation: 524 S.W.2d 913
• Parties: STATE of Tennessee, Petitioner, v. John Edward BLACK, Respondent.
• Court: Tennessee Supreme Court

Page 913

524 S.W.2d 913

STATE of Tennessee, Petitioner, v. John Edward BLACK, Respondent.

Supreme Court of Tennessee.

June 16, 1975.

John B. Hagler, Jr., Asst. Atty. Gen., R. A. Ashley, Atty. Gen., Nashville, for petitioner.

J. Fred Friedman, Memphis, for respondent.

OPINION

HARBISON, Justice.

Respondent John Edward Black was convicted in the Criminal Court of Shelby County, Tennessee of robbery by the use of a deadly weapon and of assault with intent to commit murder in the second degree. The Court of Criminal Appeals affirmed the conviction for robbery, but the majority of that Court reversed the conviction of assault with intent to commit murder. The majority opinion was to the effect that this second conviction could not stand in light of the ruling of this Court in Acres v. State, 484 S.W.2d 534 (Tenn.1972). The dissenting member of the Court felt that the case was controlled by Duchac v. State, 505 S.W.2d 237 (Tenn.1973), and that the convictions for both offenses should be affirmed.

Because in this and in several other recent cases the apparent conflict between the two decisions of this Court cited above has been emphasized, we have granted the petition for certiorari filed by the State in order to deal with the issue of convictions for multiple offenses in a single trial.

Although there were disputed issues of fact in the courts below, for purposes of our review the facts established by the record show that the respondent and two companions on the night of February 8, 1971 robbed Talmadge B. Whitehorn at gunpoint as he was leaving the Tijuana Lounge in Memphis. After taking a considerable sum of money, a watch and a ring from Whitehorn, respondent stepped back and shot the victim in the leg from a distance of about 12 to 18 inches away. The robbery had clearly been completed prior to the infliction of this wound.

The issue before the Court is whether these acts committed at the same time and as part of a single episode constitute a single offense or whether convictions may stand both for armed robbery and assault with intent to commit murder.

The problem presented here is actually one of identity of offenses, which is one facet of the broader subject of double jeopardy. There are numerous reported cases in this state on the general subject of former jeopardy, arising in many different contexts, and containing language which in some instances seems conflicting and difficult to reconcile. The issue presented here, as we view it, is one of identity of offenses, as stated previously, but the issue has frequently arisen not only in cases involving single trials but also in the context of successive prosecutions for offenses committed at approximately the same time, and in the context of prosecutions for offenses of a continuing nature, such as unlawful cohabitation and the like. Some aspect of double jeopardy may arise in many different types of cases, and the circumstances which give rise to the question are so varied and the fact situations so numerous that we do not deem it expedient to attempt to formulate a rule to fit all possible situations. The cases, from their nature, have to be dealt with by analysis of the particular situations as they arise. Nevertheless, some review of the holdings in the Acres and Duchac cases, and the authorities upon which they were based, seems appropriate here.

In the case of Acres v. State, 484 S.W.2d 534 (Tenn.1972), the defendant was indicted for murder in the first degree of one Charles C. Wilder, and also for armed robbery of the same individual. Defendant and another individual had escaped from the Eastern State Hospital and were hitchhiking when they were picked up by the victim. They commandeered his automobile at gunpoint, and one of them shot the victim, who died the next day. They also robbed the victim, but from the statement of facts contained in the opinion, it is not possible to ascertain whether the robbery occurred in the course of, before or after the shooting.

This Court, in considering the question of whether or not two separate convictions could be allowed to stand, said:

'There is no doubt that these two offenses were committed at the same time and were parts of a single continuing act inspired by the same criminal intent essential to each offense, and were susceptible to but one punishment, and conviction of one is a bar to conviction of the other . . .' 484 S.W.2d 537.

But the Court also stated:

'The acts of murder and robbery are inseparable. It is only because the murder was in the course of robbery that it was first degree. If the murder had been without intent of robbery it would have been a lesser degree, because the element of intent that makes it first degree is the intent to rob.' Ibid.

The statements last quoted seemingly have reference to the provisions of T.C.A. § 39--2402, generally known as the 'felony-murder' rule.

Although the indictment charged first degree murder in the common law form of averments, it is well settled in this state that under such an indictment proof is admissible that the defendant was in the perpetration of a felony when the homicide occurred. Sullivan v. State, 173 Tenn. 475, 121 S.W.2d 535 (1938).

Several members of the Court of Criminal Appeals have construed the Acres case as an example of the felony-murder rule, and, if considered in that light and confined to the felony-murder principle, the case appears to have been properly decided and is not inconsistent with the holding in Duchac, hereinafter discussed.

In support of the material first quoted above, however, the court cited a number of other Tennessee cases, which did not involve the felony-murder principle. Cited was the case of Cronan v. State, 113 Tenn. 539, 82 S.W. 477 (1904), in which the Court had held that separate convictions of burglary and larceny, growing out of the same act, could not stand. In that case the Court said:

'It is true that the defendant below might have been convicted under the indictment as framed thee for feloniously breaking and entering the house referred to or for larceny. Judgment, however, could not be entered against him for both. On a conviction under the first count the crime averred in the second would be included.' 113 Tenn. at 542, 82 S.W. at 478.

The Cronan case, therefore, simply involved the issue of a lesser included offense and the familiar principle that one convicted of the higher charge could not also be convicted of a less serious but included offense. See T.C.A. §§ 40--2518, 2520; Strader v. State, 210 Tenn. 669, 362 S.W.2d 224 (1962). ¹

Also cited and relied upon in the Acres case was State v. Covington, 142 Tenn. 659, 222 S.W. 1 (1920). In that case the defendant had been tried and acquitted upon a charge of illegal transportation of intoxicating beverages into and within the state. Thereafter the defendant was indicted for unlawfully receiving intoxicating liquors and unlawfully being in possession of them. To the second indictment the defendant interposed a plea of former acquittal, alleging therein that the offense for which he had been acquitted was 'the identical offense' as the one subsequently being charged, and rested on 'the identical facts' upon which the second indictment was based. The State moved to strike this plea, thereby admitting the truth of the factual allegations contained therein, and both the trial court and this Court held under those circumstances that the plea was well taken.

The Court said:

'The plea, which must be taken as true, says that this was one transaction, so that if the state were permitted to split this one transaction into three parts and charge the defendant with receiving in one indictment--possessing in the second, and transporting in the third--and the defendant should be found guilty in each case, then the court could impose a fine of $500, and an imprisonment of six months in each case. While the statute only contemplated a maximum fine of $500, and an imprisonment of six months for the entire transaction.' 142 Tenn. at 662, 222 S.W. at 2.

It is apparent that that case did not present the same situation as was presented in either the Acres or Duchac cases, or as is presented in the present case--that is, a conviction for multiple offenses in a single trial. The case did involve a principle of double jeopardy, which the Court, in quoting from 16 C.J. 272, stated as follows:

"There is also another rule which declares that, if the prosecution under the second indictment involves the same transaction which was referred to in the former indictment, and it was or properly might have been, the subject of investigation under that indictment, an acquittal or a conviction under the former indictment would be a bar to a prosecution under the last indictment. This rule is sometimes called the 'same transaction test."' 142 Tenn. at 663, 222 S.W. at 2.

Also cited and relied upon in Acres was the case of Patmore v. State, 152 Tenn. 281, 277 S.W. 892 (1925). The defendant in that case was convicted under an indictment with two counts charging possession of a still and also the unlawful manufacture of whiskey. The Court stated that under some circumstances where it was clear that the two offenses were wholly separate and distinct, it would be proper to have two convictions and two punishments. The Court stated, however:

'Our own cases appear to prohibit the practice where the offenses grow out of one transaction and involve but one criminal intent.' 152 Tenn. at 284, 277 S.W. at 893.

The Court held that the two offenses in that case did grow out of the same transaction and that evidence of the manufacturing afforded proof of the possession. Accordingly the Court permitted only the higher of the two sentences to stand.

Probably one of the leading cases in Tennessee on the entire subject, and one which was cited in the Acres case, is the case of Dowdy v. State, 158 Tenn. 364, 13 S.W.2d 794 (1928). Defendant in that case was convicted for public...