State v. Jefferson
| Decision Date | 18 August 1975 |
| Citation | 529 S.W.2d 674 |
| Parties | STATE of Tennessee, Petitioner, v. James Thomas JEFFERSON, Respondent. |
| Court | Tennessee Supreme Court |
R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, for Petitioner.
Avon N. Williams, Jr., Nashville, for respondent.
Certiorari was granted in this case for the sole purpose of reviewing the limited remand ordered by the Court of Criminal Appeals in the opinion prepared by Presiding Judge Walker.
After carefully reviewing the record, it is the judgment of this Court that the Court of Criminal Appeals has correctly dealt with all issues. The judgment of the Court of Criminal Appeals is therefore in all things affirmed and the case remanded to the Criminal Court of Davidson County for an evidentiary hearing as ordered by the Court of Criminal Appeals.
The opinion of the Court of Criminal Appeals will be for publication as an appendix to this opinion.
Affirmed and remanded.
APPENDIX
In four indictments the Davidson County grand jury on July 23, 1968, charged the defendant below, James Thomas Jefferson, with (1) first degree murder of John Robert Bolte; (2) rape of Barbara Bolte; (3) assault with intent to murder Barbara Bolte; and (4) assault with intent to murder Dara Bolte, the 18-month-old daughter of John Robert and Barbara Bolte.
Jefferson was first tried for the rape of Mrs. Bolte. That trial commenced October 28, 1969, and ended December 20, 1969, when a mistrial was declared because the jury was unable to agree on a verdict.
In this case he was tried for the murder of John Robert Bolte. Selection of the jury began January 18, 1971, and was completed February 17, 1971. Presentation of proof began February 18, 1971, and on March 5, 1971, the jury found the defendant guilty of murder in the first degree and fixed his punishment at 99 years in the penitentiary. Jefferson appeals in error from this conviction and sentence.
The bill of exceptions contains almost 10,000 pages, with 42 volumes of testimony heard on the selection of the jury and 27 volumes of trial testimony.
We find that the case must be remanded for a hearing on the plea in abatement and for hearing on the procedure used to select prospective jurors in this case. We have carefully examined all of the other assignments of error and find them to be without merit for the reasons we state here.
We first consider the defendant's contention that the court erred in refusing to quash the indictment. It charges that the defendant:
'. . . (U)nlawfully, feloniously, willfully, deliberately, premeditatedly and maliciously, or in the perpetration of or while attempting to perpetrate a rape, robbery, burglary or larceny, did make an assault with an axe upon the body of one John Robert Bolte, and he the said John Robert Bolte (sic), he the said James Thomas Jefferson, then and there did unlawfully, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, or in the perpetration of or while attempting to perpetrate a rape, robbery, burglary or larceny, kill and murder, against the peace and dignity of the State of Tennessee.'
The defendant says the indictment is duplicitous and vague in that it fails to apprise the defendant of the specific offense of which he is charged; that the allegations are repugnant and in a single count there are charges of alternative offenses.
Generally, two distinct offenses cannot be charged in the same count of an indictment. Forrest v. State, 81 Tenn. 103; Wynne v. State, 45 Tenn. 319. TCA 40--1806, however, provides:
If an indictment in one count charges a defendant with only one offense although it charges different means, not repugnant, it is valid. See Davis v. State, 194 Tenn. 282, 250 S.W.2d 534; Griffin v. State, 109 Tenn. 17, 70 S.W. 61. This indictment charges the defendant with one offense, the first degree murder of John Robert Bolte although it charges different means or intents with which the crime was committed. The means and intents are not repugnant.
The defendant also alleges in the motion to quash that the felony murder charge is vague and indefinite because it specifies four separate offenses without indicating the identity of the victims or the circumstances of the perpetration of the crime. We find no merit in this contention. See Jordan v. State, 156 Tenn. 509, 3 S.W.2d 159. This indictment is sufficiently clear for the defendant to prepare his defense, for the court to exact the punishment and to protect the defendant from future prosecution for this homicide.
The court did not err in overruling the motion to quash the indictment.
The defendant says the court erred in refusing to permit him to introduce evidence on his plea in abatement and in overruling it.
On August 7, 1968, the defendant filed a plea in abatement alleging that (1) the grand jury which returned the indictment was chosen by a white judge pursuant to Chapter 53, Section 7, Private Acts of 1947, and that no Negro can be elected to the office of criminal judge in Davidson County; (2) that jury lists for grand and petit juries are prepared by a Board of Jury Commissioners and that no Negro has ever been appointed a jury commissioner; (3) that since 1950 never more than one Negro has served on a grand jury for a single term of court and the judges and jury commissioners have deliberately limited the number of Negroes selected for grand and petit juries, solely on account of their race; (4) the indictment was unconstitutional because it was obtained as a result of an unlawful search and seizure; (5) Sections 4, 5 and 7 of Chapter 53, Private Acts of 1947, violate the Tennessee and Federal Constitutions.
The trial judge properly held no hearing was required on the allegations that the grand jury was selected by a white judge and that no Negro can be elected to that office. The mere absence of a black criminal judge is not evidence of systematic exclusion in the selection of grand juries. The same rule applies to the allegation that no Negro has been appointed a jury commissioner. The greatest strictness prevails in the construction and application of pleas in abatement. They must possess the highest degree of certainty known to the law in every particular. Chairs v. State, 124 Tenn. 630, 139 S.W. 711. These allegations about the white judges and white jury commissioners do not meet the requirements for an evidentiary hearing.
The trial judge granted a hearing on the search and seizure question but overruled all other allegations of the plea in abatement.
In attacking Chapter 53 of the Private Acts of 1947, the defendant specifically urges that sections 4, 5 and 7 are unconstitutional because they vest (1) discretion in the criminal court judge to select jurors contrary to the general law of Tennessee and make possible systematic discrimination against Negroes in selection of juries and (2) the standards to be used are vague, subjective and indefinite so that the judges have complete discretion in selection of juries as to recially discriminate. He alleges that such discrimination occurred in the grand jury that indicted him.
The Private Act of which the defendant complains has been challenged in other cases. It has been held constitutional and indictments returned by grand juries selected under it have been held valid. Canady v. State, 3 Tenn.Cr.App. 337, 461 S.W.2d 53; McQuiddy v. State, Tenn.Cr.App., Nov. 1968 (unreported).
Flynn v. State, 203 Tenn. 337, 313 S.W.2d 248, discusses the constitutionality of the Private Act controlling grand jury impaneling in Shelby County. That Private Act is similar to that governing the selection of Davidson County grand juries. Flynn held the provisions of TCA 40--1501 directory and not mandatory; that the impaneling of the grand jury as was done there constituted a de facto grand jury at least. In the absence of fraud or prejudice, the indictments of a de facto grand jury are as valid as those presented by a de jure grand jury.
The defendant also challenges the constitutionality of the Private Act alleging that the standards to be used are vague, subjective and indefinite so that the judges have complete discretion in the selection of juries as to racially discriminate. He specifically challenges the requirement that the jurors be 'upright and intelligent men of fair character and sound judgment.'
In Carter v. Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549, the Alabama statute was challenged which statute required jury commissioners to select for jury service those persons who are 'generally reputed to be honest and intelligent and . . . esteemed in the community for their integrity, good character and sound judgment . . ..' The United States Supreme Court held this statute constitutional:
The statute before us is substantially the same as the Alabama statute and the requirement that jurors be 'upright and intelligent men of fair character and sound judgment' is proper. The trial judge correctly denied the plea in abatement on that ground without an evidentiary hearing.
We now turn to the allegations of the plea in abatement that the judges and/or jury commissioners have deliberately limited the number of Negroes selected for grand and petit jury service solely on account of race. The state contends that...
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