State v. Bonhart

• Decision Date: 15 December 1969
• Citation: 223 Tenn. 582,448 S.W.2d 669,1 Pack 582
• Parties: , 223 Tenn. 582 STATE of Tennessee, Petitioner, v. Charles W. BONHART, Respondent.
• Court: Tennessee Supreme Court

Page 669

448 S.W.2d 669

1 Pack 582, 223 Tenn. 582

STATE of Tennessee, Petitioner, v. Charles W. BONHART, Respondent.

Supreme Court of Tennessee.

Dec. 15, 1969.

David M. Pack, Atty.Gen., Paul E. Jennings, Asst.Atty.Gen., Nashville, and Donand D. Strother, Asst.Dist.Atty.Gen., Memphis, for petitioner.

J. Harold Ellis, Memphis, for respondent.

OPINION

DYER, Chief Justice.

This case comes to this Court by grant of writ of certiorari. After consideration of the matter we are of the opinion that the holding of the Court of Criminal Appeals is correct and are pleased to adopt the opinion of that court written by Judge Oliver as the opinion of this Court. The opinion of the Court of Criminal Appeals is as follows:

This is an appeal by the State. In separate indictments, the defendant Bonhart was indicted for unlawful possession of marijuana and for carrying a pistol. In a pre-trial hearing of a motion to suppress evidence (relating specifically to weapons, cartridges, and marijuana cigarettes) filed pursuant to T.C.A. § 40--519, the trial court sustained the motion and suppressed use of the specified items as evidence.

The District Attorney General filed a motion for a new trial or a rehearing, in connection with which he also filed his affidavit stating that the court's order suppressing the evidence was in effect a final judgment in the case because without that evidence the State was unable to proceed with the prosecution. The motion for a new trial being overruled, the State excepted and prayed and was granted an appeal to this Court.

The vital question presented here is whether the State has a right to appeal from the trial court's interlocutory order suppressing the evidence. In its brief and argument the State recognizes that this is the presiding issue in this case. Actually, the question raises a two-fold issue; (1) the appealability of interlocutory orders and judgments, and (2) the right of the State to appeal in criminal cases.

It was decided long ago in this State, consonant with the general law, that interlocutory orders and judgments are not appealable, except as provided by statute in equity causes. T.C.A. § 27--305; Payne v. Satterfield, 114 Tenn. 58, 84 S.W. 800 (1904); Warfield v. Thomas' Estate, 185 Tenn. 328, 206 S.W.2d 372; Carmichael v. Hamby, 188 Tenn. 182, 217 S.W.2d 934; Dykes v. Meighan Construction Co., 205 Tenn. 175, 326 S.W.2d 135; Boyce v. Williams, 215 Tenn. 704, 389 S.W.2d 272. The rule and its undergirding principles were well stated in Payne v. Satterfield, Supra:

It is a well-settled rule, save where changed by statute, that questions arising in a course of legal proceedings cannot be reviewed in an appellate court until a final decision in the cause has been rendered below. (Citing cases). This rule was designed to avoid the delay and confusion arising from multiplied and successive appeals from interlocutory decisions on matters arising in the progress of the cause before final judgment. It is insisted, however, that there is to be found in section 4889 of Shannon's Code (T.C.A. § 27--305) a provision which modifies this rule, so as to remove the objection that the present appeal is premature. That section is as follows: 'The chancellor or circuit judge may in his discretion allow an appeal from his decree in equity causes, determining the principle involved and rendering an account for a sale or partition before the account is taken or the sale or partition is made; or he may allow such appeal on overruling a demurrer; or he may allow any party to appeal from a decree which settles his right although the case may not be disposed of as to others.'

This section is part of article 7 of chapter 14, which is entitled by Mr. Shannon, in his edition of the Code, 'Appeal from the Circuit and Chancery Court in Equity Cases.' Section 4887 (T.C.A. § 27--301) of that article provides that either party dissatisfied with the judgment or decree of the circuit or chancery court in a matter of equity, tried according to the forms of the chancery court, may on appeal have a re-examination in the Supreme Court of the whole matter of law and fact appearing in the record. Section 4888 (T.C.A. § 27--302) provides for the trial, upon a demand of either party, of issues of fact in the chancery court. Then follows section 4889 (T.C.A. § 27--305), which has just been quoted. We think that the appeal allowed before a final decree provided for in this section is by its terms and by its location in the Code necessarily confined to equity cases tried either in the circuit or chancery court, and that such a case as is the present, involving no equitable principle, is not within the provision of this section, and that the parties thereto are not entitled to its benefit.

T.C.A. § 27--305, referred to and quoted in Payne v. Satterfield, Supra, now reads as follows:

Discretionary appeal before final decision.--The chancellor or circuit judge may, in his discretion, allow an appeal from his decree in equity causes determining the principles involved and ordering an account or a sale or partition or other character of reference, before the account is taken or the sale or partition is made or the reference had; or he may allow such appeal on overruling a demurrer; or he may allow any party to appeal from a decree which settles his right, although the case may not be disposed of as to others; or he may allow any party to appeal from a judgment or decree which settles the rights of the parties, although the amount of damages or compensation has not been determined.

However, this statute permitting appeals from interlocutory orders or decrees in equity cases has no application in criminal cases. State v. Vaughn, 156 Tenn. 343, 1 S.W.2d 527; Allen v. State, 194 Tenn. 296, 250 S.W.2d 539; Cogburn v. State, 198 Tenn. 431, 281 S.W.2d 38. In Cogburn, the plaintiffs in error appealed from a judgment based upon a jury verdict finding them presently insane. Sustaining the State's motion to strike the appeal, our present Chief Justice wrote for the Court:

Under the facts of the instant case the judgment here is not final.

'It is a proceeding preliminary to the trial upon the guilt or innocence of the defendant, and the only effect it can have on such trial is to postpone it, in the event the issue is found for the defendant.

It is purely a collateral issue, similar to those involved upon an application for continuance, or the qualification of a talesman when the jury is being impaneled. It is also somewhat analogous to cases where the question of the admission of evidence is presented and tried by the presiding judge, such as the competency of dying declarations and of secondary evidence of the contents of lost documents.' Jordan v. State, Supra. (124 Tenn. 81, 135 S.W. 327, 34 L.R.A.,N.S., 1115).

Thus in view of this fact that the judgment is not final the State very forcibly and reasonably argues that the appeal should be dismissed for this reason. In support of this argument the State says:

'In Jordan v. State, 124 Tenn. 81 (135 S.W. 327, 34 L.R.A.,N.S., 1115), it is expressly held that an appeal would not lie from a judgment against one finding him presently sane. The same rule definitely must be applicable to a judgment finding him presently insane. In McLean v. State, 1 (Tenn.) Cas. (Shannon) 474, it was held that it was no such final judgment where a plea of former conviction was interposed and denied as to permit an appeal therefrom. In State v. Bass, 153 Tenn. 162 (281 S.W. 936), it was held that an order to suppress evidence was interlocutory and not final to the extent that an appeal could be perfected therefrom. In Homolko v. State, 155 Tenn. 467 (295 S.W. 66), it was held that no appeal lay from an order entering nolle prosequi. In State v. Vaughn, 156 Tenn. 343 (1 S.W. (2d) 527), it was held that an appeal would not lie from an order quashing an indictment and ordering it re-committed to the grand jury. In Mason v. State, 169 Tenn. 52 (82 S.W. (2d) 862), it was held that no appeal lay from an order retiring the case from the docket. In Allen v. State, 194 Tenn. 296 (250 S.W. (2d) 539), it was held no appeal lay from an order striking pleas of former jeopardy and of former suits pending, and in Helton v. State, 194 Tenn. 299 (250 S.W. (2d) 540), it was held that the writ of certiorari would not lie where the matter complained of was interlocutory and not a final judgment.'

The general rule is stated in 4 C.J.S. Appeal & Error § 92, p. 238:

It is the general rule, therefore, that an appeal, writ of error, exceptions, or other proceeding for review will not lie from or to an interlocutory or intermediate decision unless it is expresly permitted by statute, rule, or constitutional provision, * * *.

The general rule is applied even though the court below may have mistakenly supposed that the judgment, order, or decree was a final one within the meaning of the law.

A judgment, order, or decree which is not final may not be reviewed merely because it is, or is alleged to be, null and void. (Ibid. p. 246. See also 24 C.J.S. Criminal Law § 1644, pp. 991--998.)

In State v. Bass, 153 Tenn. 162, 281 S.W. 936, the Court sustained the defendant's preliminary motion to quash the search warrant and suppress the evidence seized. The State appealed. Dismissing the appeal, the Court said:

As outlined above, the procedure in this State affords a citizen aggrieved by an unlawful...