Tenpenny v. State

• Decision Date: 18 April 1925
• Parties: TENPENNY v. STATE.
• Court: Tennessee Supreme Court

270 S.W. 989

151 Tenn. 669

TENPENNY v. STATE.

Supreme Court of Tennessee.

April 18, 1925

Appeal from Circuit Court, Cannon County; John E. Richardson, Judge.

Clarence Tenpenny was convicted of felonious transportation of intoxicating liquor, and brings error. Reversed and remanded.

W. H Swiggart, of Union City, for the State.

COOK J.

Plaintiff in error was convicted of felonious transportation of intoxicating liquor under chapter 2, Acts of 1923, amendatory of chapter 12, Acts of 1917. The assignments of error require discussion of: (1) The preliminary inquiry to determine the admissibility of evidence introduced by the state; (2) whether the grand jury may exercise inquisitorial power over violations of chapter 2, Acts of 1923, amending chapter 12 Acts of 1917; (3) whether the presentment under the statute may include a count for felonious transportation of more than a gallon, a count for unlawful transportation of a gallon or less, and a count for unlawful receipt or possession of liquor from a common or other carrier.

When the state offered its evidence, the defendant objected that it was unlawfully obtained and not admissible under Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 20 A L. R. 639. Thereupon the trial judge instituted a preliminary inquiry to determine its admissibility according to the procedure suggested in Goodwin v. State, 148 Tenn 682, 257 S.W. 79.

The courts are sometimes required to adapt established procedure and harmonize existing law with situations that arise from new statutes. The problem is not always easy, because the courts must observe and declare the law; they cannot make it. This new statute made it a crime to transport or possess intoxicating liquor, and from the efforts to enforce the law many questions arise as to how far the police may go on exploratory expeditions after evidence to convict. We have no statute penalizing officers for unlawful arrest or unlawful search of unoffending persons.

As said in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, the efforts of the courts and their officers to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. Illegal practices should find no sanction in the judgment of the courts, which are charged at all times with the support of the Constitution, and to which the people have a right to appeal for the maintenance of fundamental rights. Hence the rule that illegal evidence cannot be received to produce a verdict of guilty. Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 20 A. L. R. 639; Hampton v. State, 148 Tenn. 155, 252 S.W. 1007; Craven v. State, 148 Tenn. 517, 256 S.W. 431; Goodwin v. State, 148 Tenn. 682, 257 S.W. 79; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654.

Article 1, § 7, of the Constitution, provides:

"That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offenses are not particularly described and supported by evidence, are dangerous to liberty, and ought not to be granted."

Section 6997, Shannon's Code, is an embodiment of the common law. Under it an officer may, without a warrant, arrest a person: (1) For a public offense committed or a breach of the peace threatened in his presence; (2) when the person has committed a felony, though not in his presence; (3) when a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.

It follows as a corollary that the officer cannot intercept search and arrest persons upon the highway except in the manner prescribed by article 1, § 7; section 7296 et seq., Shannon's Code; and section 6997, Shannon's Code. A search and arrest otherwise made is unlawful.

In Carroll et al. v. United States, 45 S.Ct. 280, 69 L.Ed. 543, decided by the United State Supreme Court March 2, 1925, construing the federal Prohibition Act it was held, that section 26, title 2 (U. S. Comp. St. Ann. Supp. § 10138 1/2mm), primarily enacted to accomplish the seizure and destruction of contraband, coupled with the provision which penalizes officers unlawfully entering private residences, clothed competent federal officers with power to search vehicles upon probable cause for believing they bear contraband. No statute in this state, either in express terms or by implication, confers such powers upon state officers.

Confronted with the duty to determine if the evidence obtained by officers by seizure was legally acquired and admissible, the practice was declared in Goodwin v. State, 148 Tenn. 687, 257 S.W. 80, to be:

"If objection is desired to be offered to evidence as incompetent because the result of an unlawful search, the objection should be made at the time the evidence is offered, and then disposed of by the trial judge in his discretion upon presentation before him, apart from the jury, of all pertinent facts. * * * This practice is by analogy supported by the rule approved in cases of dying declarations, admissibility of which is held to be a question for the court."

The trial judge is to determine whether the conditions exist under which the evidence may be admitted. Smith v. State, 9 Humph. 17.

The objection goes to the competency of the evidence, and raises a question to be determined by the judge upon the proof. Brakefield v. State, 1 Sneed, 217.

"The competency of a dying declaration is ordinarily a mixed question of law and fact. While this court, therefore, has power to review the action of the trial judge in such a matter, it being merely a question of the admissibility of evidence, we very seldom do so. Where the fact of the declarant's condition depends on the credibility of witnesses examined by the judge, great weight is to be attached to his conclusion. This court will not reverse, unless there is manifest error. Such is the rule in most appellate tribunals." Dickason v. State, 139 Tenn. 607, 202 S.W. 922.

A mixed question of law and fact is presented to the trial judge from which he must determine if the conditions exist under which the evidence may be admitted. Sound rules of judicial administration, of course, require that he shall control the preliminary inquiry, and circumscribe its scope, but enough evidence should be heard by him to show upon review, on appeal, that the evidence as a whole sustains his conclusion. This could not be done if he should limit the inquiry to the testimony of a single witness. In a preliminary inquiry to determine the admissibility of a dying declaration, after hearing the statement of a witness for the state that the declaration was made under a sense of impending death, the trial judge could not properly refuse to hear witnesses offered to show that the qualifying...