State v. Hudson

Decision Date21 February 1978
Citation562 S.W.2d 416
PartiesSTATE of Tennessee, Petitioner, v. Joe Eddie HUDSON, Respondent. 562 S.W.2d 416
CourtTennessee Supreme Court

Robert A. Grunow, Asst. Atty. Gen., Nashville (R. A. Ashley, Jr., Atty. Gen., of counsel), Nashville, for petitioner.

Anthony J. Sabella, Memphis, for respondent.

OPINION

BROCK, Justice.

We granted certiorari in this case to consider recurring problems which arise in the application of two of our criminal statutes, viz., T.C.A., § 39-4914 (using a firearm in the commission of a felony) and T.C.A., § 39-4901 (carrying a dangerous weapon with intent to go armed), to the situation presented when an accused employs a firearm to commit an assault with intent to commit murder (T.C.A., § 39-604) or an armed robbery (T.C.A., § 39-3901), or both, against a single victim on a single occasion.

The victim in this case, Mr. George Thomas Stewart, emerged from a bank in Memphis carrying a bag containing payroll cash in the amount of $5,150.67. He entered his truck and placed the money bag on the seat next to him at which time the defendant appeared at the door, pointed a pistol at him and demanded that he hand over the bag. The defendant reached into the truck and took the money bag; he then stepped back a short distance, fired a .38 caliber bullet into the victim's leg and fled.

Defendant was separately indicted and convicted in one trial of the following offenses and received the punishments indicated:

(1) Robbery by the use of a deadly weapon, T.C.A., § 39-3901 20 years imprisonment;

(2) Assault with intent to commit murder in the second degree, T.C.A., § 39-604 imprisonment for not less than one nor more than five years;

(3) Use of a firearm in committing a felony, to wit: armed robbery and assault with intent to commit murder, T.C.A., § 39-4914 imprisonment for not less than one more more than five years;

(4) Carrying a dangerous weapon with intent to go armed, T.C.A., § 39-4901 imprisonment for six months in the workhouse and a fine of $250.00.

The sentences for the T.C.A., §§ 39-604, 39-3901 and 39-4914 convictions were set to run consecutively, that for the T.C.A., § 39-4901 conviction concurrently.

The Court of Criminal Appeals affirmed the convictions for armed robbery and assault with intent to commit murder in the second degree but reversed and dismissed the other two convictions upon the theory, apparently, that they were merged into the convictions for robbery and assault.

The State concedes in its brief in this Court that insofar as the conviction "for use of a firearm in the commission of a felony" is based upon the defendant's use of the pistol in committing the robbery it cannot stand because the former offense "merged" into the armed robbery offense, but insists, nevertheless, that the conviction "for use of a firearm in the commission of a felony," is valid because the defendant also used the pistol in the commission of the offense of assault with intent to commit murder in the second degree, a separate and distinct offense into which the use of a firearm offense does not merge. The State also contends that the offense of carrying a dangerous weapon with intent to go armed does not merge into the other offenses and, thus, that the conviction for that offense may stand.

In State v. Black, Tenn., 524 S.W.2d 913 (1975), this Court reviewed many prior decisions of this Court dealing with problems of double jeopardy, merger of offenses and identity of offenses, and concluded:

"We do not find the formulation of the various 'tests' into catch words, such as 'same transaction' or 'same evidence' to be particularly helpful. As previously stated, each case requires close and careful analysis of the offenses involved, the statutory definitions of the crimes, the legislative intent and the particular facts and circumstances." 524 S.W.2d at 919.

However, the Court did approve and apply the rule for distinguishing offenses announced in Blockburger v. U. S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), viz., two offenses are distinct and separate if the statutory definition of each requires proof of a fact which the other does not require.

Applying to this case the principles approved in Black, we consider the nature and effect of T.C.A., § 39-4914, which provides:

"Any person who employs any firearm of any character as a means of committing or escaping from a felony is guilty of a felony, and on conviction of first offense shall be punished by imprisonment in the penitentiary for not less than one (1) year nor more than five (5) years, and on conviction of second offense shall be punished by imprisonment in the penitentiary for not less than five (5) years nor more than ten (10) years. The trial judge may in his discretion suspend all or part of the penalty imposed by this section.

"The period of confinement imposed by this section shall be in addition to any penalty provided by law as punishment for any other felony, and shall run consecutively, and not concurrently, with any other period of confinement."

The obvious purpose of this enactment was to provide additional punishment for one who employs a firearm as a means of committing a felony. It could have been achieved more easily if the legislature had not included the language " . . . is guilty of a felony, . . . " It certainly was not necessary to include that language in order to provide such additional punishment. To give a literal interpretation to the quoted phrase results, of course, in the conclusion that this statute creates and defines a new felony that is separate and distinct from the "principal" felony which is committed by means of a firearm. But such a construction would result in a statute that could not be applied as the legislature intended without running afoul of the double jeopardy prohibitions of our state and federal constitutions. Separate convictions for the "principal" felony and the new use of a firearm felony could not stand without violating the double jeopardy clause. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Woofter v. O'Donnell, Nev., 542 P.2d 1396 (1975); Raby v. State, Nev., 544 F.2d 895 (1976). In short, if the statute were so construed it would be self-defeating and nugatory. Accordingly, we conclude that the statute should be given a construction that will render it both constitutional and effective to carry out the obvious legislative intent.

We hold that this statute does not create a new felony, but, instead amends by implication our other felony statutes, with the exception to be discussed, infra, by adding a proviso to each such statute that if such felony is committed by means of using a firearm the offender shall, in addition to the punishment regularly prescribed for such felony, be further punished as set out in this statute, T.C.A., § 39-4914. See State ex rel. Anderson v. Winsett, 217 Tenn. 564, 399 S.W.2d 741 (1965). This Court held in the Winsett case that the legislature did not create a separate or distinct offense by providing increased punishment for the offender who used a deadly weapon in committing robbery. The Court concluded that by thus amending the robbery statute the legislature merely provided for increased punishment because of the presence of aggravating circumstances.

Although amendments of statutes by implication are not favored, they are recognized as a matter of necessity. English v. Farrar, 206 Tenn. 188, 332 S.W.2d 215 (1960); Pritchard v. Carter County Motor Co., 197 Tenn. 222, 270 S.W.2d 642 (1954); Texas Co. v. McCanless, 177 Tenn. 238, 148 S.W.2d 360 (1941). And, it is not necessary that such amending statutes recite the title or substance of the laws amended by implication. State v. Ritzius, 164 Tenn. 259, 47 S.W.2d 558 (1932); Illinois Cent. R. Co. v. Crider, 91 Tenn. 489, 19 S.W. 618 (1892).

Applying to this case the foregoing construction of T.C.A., § 39-4914, we conclude that the conviction for using a firearm in the commission of a felony is void, since that statute does not create a separate offense but provides only for increased punishment.

The form of the indictment, the verdict, and judgment should have been in compliance with the construction of T.C.A., § 39-4914, which we have set out above. The error, however, is rendered harmless if the judgment is revised by deleting the separate conviction for using a firearm in commission of a felony, T.C.A., § 39-4914, and revising the judgment for assault with intent to commit murder in the second degree by specifying that the assault was "committed by means of using a firearm, to wit: a pistol," and by providing that the punishment for that offense shall consist of the two sentences fixed by the jury for the assault and the use of a firearm in committing a felony convictions, those two sentences to run consecutively. So revised, the judgment will comply with the law as we have herein construed it, the verdict of the jury will be implemented, and no right of the defendant will be abridged.

We further hold that T.C.A., § 39-4914, is to be applied only with respect to those felonies for which the law does not otherwise provide an increase in punishment for use of a firearm in committing such felonies. We construe the legislative intent to be that T.C.A., § 39-4914, is not to be applied to those felonies for which the law already prescribes an enhanced penalty for the offender who commits such felonies by means of a firearm. Although the question is not free from doubt since "deadly weapon" obviously may include more than a "firearm," we conclude that robbery by use of a deadly weapon, T.C.A., § 39-3901, is a felony with respect to which T.C.A., § 39-4914, does not apply. We are not convinced that the legislature meant to twice enhance the penalty for one who commits robbery by means of a firearm. See Cole v. State, Tenn.Crim.App., 539 S.W.2d 46 (1976); People v. Floyd, 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862 (1969); State v. Harris,...

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