State v. Briggs
| Decision Date | 02 February 1976 |
| Citation | 533 S.W.2d 290 |
| Parties | STATE of Tennessee, Petitioner, v. Hugh L. BRIGGS and Montro Taylor, Jr., Respondents. |
| Court | Tennessee Supreme Court |
John B. Hagler, Jr., Asst. Atty. Gen., Nashville (R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel), for petitioner.
Stanley Fink, Walker Gwinn, Memphis, for respondents.
The respondents, Hugh Briggs and Montro Taylor, Jr., hereinafter called defendants, were convicted in the criminal court for Shelby County of first degree murder and robbery with a deadly weapon. The punishment assessed for the murder conviction was 100 years in the penitentiary and for the robbery conviction, life imprisonment. The Court of Criminal Appeals reversed the judgment of the trial court in each case with respect to each defendant. The State petitioned this Court for review by certiorari which was granted.
The record indicates that on December 19, 1971, the defendants and an unidentified accomplice entered a Memphis grocery supermarket disguised and armed. Immediately upon their entry into the store, the defendant Taylor shot and killed Mr. Alfred Frazier, the produce manager of the store. They then proceeded to rob the supermarket safe of its contents and fled the scene. At the trial the State was permitted, over the objection of the defendants, to introduce evidence concerning a robbery by the defendants of another supermarket subsequent to the robbery here on trial. Upon the authority of Harris v. State, 189 Tenn. 635, 227 S.W.2d 8 (1950), the Court of Criminal Appeals reversed the convictions holding that there were no circumstances in this case which would render the evidence of the other robbery relevant to the issues on trial. With this action of the Court of Criminal Appeals, we are in complete agreement, and we concur in the reversal of the judgments in the trial court and the remand of these cases to the trial court for a new trial.
Nevertheless, we have granted certiorari to consider another question which will arise on the new trial. That question is whether or not an accused who murders a person during the course of perpetrating a robbery may be convicted both for the armed robbery and for murder in the first degree committed in the perpetration of the robbery.
The Court of Criminal Appeals held that convictions for both offenses could not stand, relying upon the decision of this Court in Acres v. State, 484 S.W.2d 534 (Tenn.1972). Recently, this Court in State v. Black, 524 S.W.2d 913 (Tenn.1975), dealt rather extensively with this general problem which was identified as 'actually one of identity of offenses, which is one facet of the broader subject of double jeopardy.'
The Acres opinion has been generally understood as authority for the proposition that one who commits a murder in the perpetration of a robbery cannot be convicted both for the robbery and for first degree murder; the theory being that the robbery is a lesser included offense within the offense of first degree murder because under our statute, T.C.A. § 39--2402, the perpetration of the robbery serves, in lieu of premeditation, to constitute one of the essential elements of first degree murder.
So understood, the decision in Acres is contrary to the great majority of the decisions in this country dealing with this specific issue. State v. Hall, 86 Idaho 63, 383 P.2d 602 (1963); McChan v. State, 9 Md.App. 311, 264 A.2d 130 (1970); Brown v. State, 10 Md.App. 416, 271 A.2d 194 (1970); State v. Moore, 326 Mo. 1199, 33 S.W.2d 905 (1930); State v. Calvo, 240 La. 75, 121 So.2d 244 (1960), cert. den. 81 S.Ct. 170, 364 U.S. 882, 5 L.Ed.2d 103 (1960); Centers v. Commonwealth, 318 S.W.2d 57 (Ky.1958); State v. Orth, 106 Ohio App. 35, 153 N.E.2d 394 (1957); State v. Barton, 5 Wash.2d 234, 105 P.2d 63 (1940); Carmody v. Seventh Judicial District Court, 81 Nev. 83, 398 P.2d 706 (1965), 11 A.L.R.3d 828; Commonwealth v. Crecorian, 264 Mass. 94, 162 N.E. 7 (1928); Duvall v. State, 111 Ohio St. 657, 146 N.E. 90 (1924); People v. Johnson, 67 Cal.App.2d 195, 153 P.2d 784 (1944); Johnson v. People, 152 Colo. 586, 384 P.2d 454 (1963), cert. den. 84 S.Ct. 682, 376 U.S. 922, 11 L.Ed.2d 617 (1964). The holding in each of the foregoing cases is that robbery is neither the same nor an included lesser offense within the crime of murder in the first degree and that convictions for both offenses may properly be allowed to stand when murder is committed during the perpetration of a robbery. The reasoning which supports the decision in each of the foregoing cases is ably stated by the Supreme Court of Idaho in State v. Hall, supra, to-wit:
'The allegation that the homicide occurred in the perpetration of a felony, does not charge the accused with the commission of the felony referred to, nor make it an offense included in the murder charge; it merely characterizes the murder as to degree. . . .
'An 'included offense' is one which is necessarily committed in the commission of another offense; or one, the essential elements of which, are charged in the information as the manner or means by which the offense was committed . . .
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