Tipton v. State

• Decision Date: 31 May 1930
• Citation: 28 S.W.2d 635
• Parties: TIPTON v. STATE.
• Court: Tennessee Supreme Court

Page 635

28 S.W.2d 635

TIPTON v. STATE.

Supreme Court of Tennessee.

May 31, 1930.

Error to Circuit Court, Obion County; R. A. Elkins, Judge.

Wallace Tipton was convicted of selling whisky within four miles of a schoolhouse, and he brings error.

Judgment modified, and, as modified, affirmed.

W. M. Miles, of Union City, for plaintiff in error.

The Attorney General, for the State.

SWIGGART, J.

The plaintiff in error Wallace Tipton, was indicted in the circuit court of Obion county, for selling whisky within four miles of a schoolhouse, in violation of Acts 1909, c. 1. The indictment charged only a single sale of whisky.

When the plaintiff in error was arraigned, the Attorney General gave notice that the state would offer in evidence the record of a previous conviction of the plaintiff in error for a violation of the same statute, and would thus seek his conviction for a felony as a "persistent violator," under the Public Acts of 1917, c. 5.

The trial jury was then impaneled, selected, and safeguarded as in cases of felony, and returned a verdict of guilt, fixing the punishment of the plaintiff in error at confinement in the penitentiary for a maximum term of two years. Judgment was rendered accordingly, from which this appeal was granted.

When the record of the previous conviction was offered in evidence, the plaintiff in error admitted its verity, but not its competency. The trial judge instructed the jury that if they should find the plaintiff in error guilty in the present case, they should fix his punishment as provided in the act of 1917, as for a felony.

It is provided by statute that in all felony cases, to which the Indeterminate Sentence Law of 1913 (chapter 8) applies, the jury shall fix the maximum term of imprisonment. Pub. Acts 1923, c. 52. At the date the act of 1917 was passed, the jury had no concern with the punishment to be imposed upon a verdict of guilt in such cases, which was fixed only in the judgment rendered upon the verdict. When the case at bar was tried, however, the act of 1923 made it necessary that the act of 1917 be given in charge, in order that the jury might assess the proper punishment.

The record before us leaves no doubt of the guilt of the plaintiff in error, and previous decisions of this court clearly demonstrate the lack of merit of all assignments of error, save those hereinbelow discussed.

Chapter 5 of the Public Acts of 1917 is as follows:

"Section 1. Be it enacted by the General Assembly of the State of Tennessee, That any person or persons, who having been once indicted or presented and duly convicted of the violation of the law against selling or tippling intoxicating liquors, as a beverage, within four miles of a school house, where a school is kept in this State, and who shall, thereafter, directly or indirectly violate the provisions of such law, shall be considered a persistent violator thereof, and shall be deemed guilty of a felony and upon conviction, shall be imprisoned in the State penitentiary not less than one year and one day nor more than two years.

"Sec. 2. Be it further enacted, That it shall not be necessary for the second or subsequent indictment or presentment to allege or charge a former indictment or presentment and conviction thereon for such violation. The original indictment or presentment and record of conviction, or certified copies of the same from any Circuit or Criminal Court within the State, shall be prima facie evidence of a former indictment or presentment and conviction thereon upon the trial for any second or subsequent violation of said law."

It is first urged for the plaintiff in error that this statute is expressly amendatory of the Acts of 1909, c. 1, and that it does not sufficiently recite the title or substance of the law amended, as required by the Constitution, art. 2, § 17. If the statute is expressly amendatory of the earlier law, we think the substance of the law amended is sufficiently stated. "The subject of a law may be stated without referring to any particular act." Minter v. State, 145 Tenn. 678, 682, 238 S. W. 89, 90.

The more serious contention of the plaintiff in error is that he was tried and convicted for a felony upon an indictment which charged him only with a misdemeanor, and that, given this application and effect, the statute of 1917 is unconstitutional and void, as in conflict with the Constitution of Tennessee, art. 1, §§ 9 and 14.

By article 1, § 9, of the Constitution, it is provided that "in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof."

Article 1, § 14, provides: "That no person shall be put to answer any criminal charge but by presentment, indictment * * * or impeachment."

These constitutional guaranties of the Constitution of 1870 are phrased in substantially the same language in the Constitutions of 1834 and 1796.

The constitutional requirements as to the substance of an indictment or presentment are, therefore, only that it state "the nature and cause of the accusation."

It was held at an early date that it is "left to the Legislature to prescribe what shall constitute the `accusation' — in what form the crime shall be charged." Sizemore v. State, 40 Tenn. (3 Head) 26; State v. Stephens, 127 Tenn. 282, 154 S. W. 1149.

When not otherwise provided by statute, "the indictment must charge the crime with certainty and precision, and must contain a complete description of such facts and circumstances as will constitute the crime." Pearce v. State, 33 Tenn. (1 Sneed) 63, 67, 60 Am. Dec. 135. And the facts must be stated with such certainty that "the Court may know what judgment is to be pronounced upon conviction." Hall v. State, 43 Tenn. (3 Cold.) 125, 128.

Notwithstanding these stringent rules of the common law with reference to the content of an indictment, this court, in Sizemore v. State, supra, sustained an indictment for possessing counterfeit coins, which did not charge that the possession was with the intent to pass them, an essential element of the offense charged. This ruling was grounded upon a statute which expressly provided that such averment was unnecessary, although required to be proved. Holding that the statute "certainly cures this indictment," the court, through Judge Caruthers, said: "There is no argument against a plain statute. It puts an end to reasoning, and stops investigation. Unless, indeed, it be in conflict with the Constitution, and then, of course, it is a nullity." The court then held the statute constitutional, as above shown, because the Constitution has left it to the Legislature to prescribe "what shall constitute the `accusation' — in what form the crime shall be charged."

So, under the rules of the common law, an indictment must aver the commission of the offense within the jurisdiction of the court, the venue, but when the Legislature prescribed by statute that this averment should no longer be necessary, the statute was held constitutional. State v. Quartemus, 50 Tenn. (3 Heisk.) 65; Code of 1858, § 5125; Shannon's Code, § 7088.

The effect of the statutes considered in the cases cited is that in every indictment for possessing counterfeit coins, the essential element of the accusation that the possession was with fraudulent intent is constructively present by operation of law; and that in every indictment or presentment, the averment of venue is included by operation of law.

So in the case before us, the indictment was properly read and construed by the trial judge as including the provision of the general law that, if the proof should show the plaintiff in error to have been previously convicted of violating the same statute, the punishment upon conviction of the offense charged should be confinement in the penitentiary, as for a felony, instead of a fine and jail sentence, as for a first offense.

Does the statute, as thus construed and applied by the trial judge, deprive the plaintiff in error of his constitutional right to be charged with crime only by an indictment or presentment containing the nature and cause of the accusation against him?

Except for the provision of the statute that it shall not be necessary for a second or subsequent indictment to allege or charge the former conviction, we would be compelled to hold the indictment before us insufficient and defective. It is so ruled in a lengthy list of cases collected and cited in the note in 58 A. L. R. at page 64. Such an averment would clearly be required by the general rule of pleading, noted above, that the offense charged must be stated with sufficient certainty "to enable the court to pronounce judgment upon a conviction, according to the right of the case." See Shannon's Code (all editions) § 7080. The clear import of the statute of 1917 is, however, that an indictment drawn pursuant to its provisions shall constitute an exception to the general rule.

Legislative provisions for an increased and heavier punishment for a second or repeated violation of law are not new nor the result of modern conceptions. Neither is it a new development of the criminal law to authorize the imposition of the increased punishment on a second conviction, without an averment of the first or former conviction in the accusation. "Statutes providing for such increased punishment were enacted in Virginia and New York as early as 1796 and in Massachusetts in 1804; and there have been numerous acts of similar import in many states." Graham v. West Virginia, 224 U. S. 616, 623, 32 S. Ct. 583, 585, 56 L. Ed. 917, 921.

A Massachusetts statute of 1817 authorized the imposition of an additional or increased punishment, upon a second conviction for felony, even though the fact of the first or prior conviction was not discovered until after the subsequent conviction and the rendition of judgment thereon. Proceedings by information were authorized to be...