White v. State
| Decision Date | 05 February 1973 |
| Parties | Jesse James WHITE, Petitioner, v. STATE of Tennessee, Respondent. |
| Court | Tennessee Supreme Court |
Russell X. Thompson, James E. Thompson, Hugh Stanton, Public Defender, Memphis, for petitioner.
David M. Pack, Atty. Gen., State of Tennessee, Everett H. Falk, Asst. Atty. Gen., Nashville, Phil M. Canale, Dist. Atty. Gen., Memphis, Jesse Clyde Mason, Jewett H. Miller, Asst. Dist. Attys. Gen., Memphis, for respondent.
This case comes to this Court by grant of the writ of certiorari to the Court of Criminal Appeals, and raises the issue of the duty and authority of the trial judge as the thirteenth juror in approving or disapproving a jury verdict.
In June, 1969, defendant White was found guilty by the jury under an indictment charging murder in the perpetration of a robbery, the jury fixing the penalty as death by electrocution. A motion for a new trial was timely filed which, inter alia, raised the issue the evidence preponderates against the verdict of guilt and in favor of the innocence of the defendant. On June 16, 1970, the following minute entry was recorded:
Comes the Attorney General on the part of the State and the defendant in proper person and by counsel of record, Mr. Russell X. Thompson and Mr. James E. Thompson; whereupon there comes on to be heard defendant's Motion for a New Trial, which Motion having been heard and fully considered by the Court is hereby OVERRULED. Thereupon, it is ordered by the Court that mittimus and execution issue on the Judgment heretofore imposed in the cause on June 19, 1969, which judgment was that he be punished at Death by Electrocution. Thereupon, the defendant prayed an appeal to the next term of the Court of Criminal Appeals sitting at Jackson, Tennessee for the Western Division of the State, which appeal is granted and the defendant is allowed Ninety (90) days in which to file his Bill of Exceptions and in which to perfect said appeal. It is further ordered by the Court that the Verdict in the above cause be reduced from Death by Electrocution to confinement for NINETY-NINE (99) YEARS IN THE STATE PENITENTIARY AT NASHVILLE, TENNESSEE.
Under date of July 7, 1970, there appears in the technical record an order signed by the trial judge designated 'Order Overruling Motion for a New Trial.' In this order the trial judge stated the evidence 'overwhelmingly proves the guilt of the defenant beyond a reasonable doubt and to a moral certainty . . ..' Then the trial judge in this order added the following:
However, the Court, over objection of the State, heard evidence during the Motion for New Trial as to the fact that the defendant's three co-defendants pleaded guilty receiving a sentence of 99 years in the State Penitentiary at Nashville, and it is the opinion of the Court that this defendant should receive the same punishment as the co-defendants, and that pursuant to Chapter No. 422 of the Public Acts of 1970 of the 86th General Assembly of the State of Tennessee, 1970 Session, the Court is approving the verdict herein of guilty and conditionally approving the punishment by requesting the Chief Justice of the Supreme Court of the State of Tennessee that in event that this conviction is affirmed that the Chief Justice of the Supreme Court of the State of Tennessee request the Governor of the State of Tennessee to commute the death penalty rendered herein to a sentence of 99 years in the State Penitentiary at Nashville, Tennessee, so as to be compatible to the sentences received by his co-defendants.
The Court of Criminal Appeals has reversed on the ground the trial judge as the thirteenth juror did not approve the verdict as required by law. That Court, by majority opinion, remanded the case for the jury to again fix the penalty, apparently feeling the trial judge did approve the verdict on the question of guilt or innocence.
The requirement the trial judge must approve the verdict in criminal as well as civil cases is well established. Curran v. State, 157 Tenn. 7, 4 S.W.2d 957 (1928); State ex rel. Richardson v. Kenner, 172 Tenn. 34, 109 S.W.2d 95 (1937); Messer v. State, i15 Tenn. 248, 385 S.W.2d 98 (1964); Halliburton v. State, 1 Tenn. Cr.App. 39, 428 S.W.2d 41 (1968).
Curran v. State, Supra, is a leading case on the duty and authority of the trial judge as the thirteenth juror. In the Curran case the jury returned a verdict of guilty of rape. Under the proof the only parties present at the time of the alleged crime was the victim and the defendant Curran. The trial judge overruled the motion for a new trial, but in so doing expressed some doubt the crime was committed, a determination which under the proof brought into issue the credibility of the testimony of the victim, and the defendant Curran. The trial judge expressly disclosed his conception that no responsibility lay on him to determine the truth or falsity of the testimony of these two witnesses. This Court reversed, holding the verdict of the jury did not receive the approval as required under our law. In the Curran case the Court stated:
In the case of Durant v. State, Manuscript Opinion, filed May 2, 1925, this court reversed a conviction for rape, because the trial judge, in overruling the motion for a new trial, said:
'I am of the opinion that the proof is sufficient to warrant the verdict of the jury, and I am glad that I do not have to pass upon the question of the guilt or innocence of the defendant, but simply on the question as to whether the proof justifies the veredict, and it is my opinion that it does, and I therefore, overrule the motion for a new trial.'
In the manuscript opinion above cited, Mr. Justice McKinney reviewed the authorities hereinabove cited, and said:
'In these cases the substance of the court's holding was that, under our system, (a) the trial court exercises the function of a thirteenth juror; (b) that he must weigh the evidence, pass upon the issues and decide whether they are supported by the evidence; (c) where he fails to do this the case will be reversed and remanded for a new trial; and (d) 'that he must be satisfied, as well as the jury' (meaning, in a criminal case, satisfied that the defendant is guilty).
'It is true that the trial court...
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