Whitwell v. State

• Decision Date: 20 January 1975
• Citation: 520 S.W.2d 338
• Parties: Dennis WHITWELL and Forrest McClain, Petitioners, v. STATE of Tennessee, Respondent.
• Court: Tennessee Supreme Court

Page 338

520 S.W.2d 338

Dennis WHITWELL and Forrest McClain, Petitioners, v. STATE of Tennessee, Respondent.

Supreme Court of Tennessee.

Jan. 20, 1975.

William M. Leech, Jr., Columbia, for petitioners.

R. A. Ashley, Jr., Atty. Gen., C. Hayes Cooney, Asst. Atty. Gen., Nashville, M. A. Peebles, Dist. Atty. Gen., Columbia, for respondent.

OPINION

FONES, Chief Justice.

Defendants below, Dennis Whitwell and Forrest McClain, were charged in separate indictments, with grand larceny of cattle and receiving and concealing stolen property, the same cattle. They were jointly tried. The jury requested further instructions on two occasions and returned from their deliberations the third time and reported that they could not agree. Thereupon, the following colloquy occurred between the Judge and the jury foreman:

'The Court--gentlemen, I want to ask you just a question or two, might help us and might help you, too, kind of see where we are, i'm looking at the case of Forrest McClain, have you decided whether or not Forrest McClain is guilty of grand larceny, or--

Juror--yes, sir, we got by that and we find him not guilty of that--

The Court--what about the case of Whitwell?

Juror--well, him too, both of them.

Juror--Judge, we've considered grand larceny and we've all decided that the defendants did take and load the cattle and they did have them in their trucks but we don't think they knew they were stealing at the time.

The Court--is that the verdict of all of

Juror--yes, sir, we can't agree on anything

Juror--yes, sir, we canht agree on anything else.

Juror--why are you asking us here for, we've already voted; why do you want us to vote out here in front of everybody?

The Court--well, is that the finding of all the jury, as to both Whitwell and McClain?

Jurors--yes, sir.

The Court--all right--I guess we'll just have to declare a mistrial as everything else.'

The trial judge's statement that he would have to declare a mistrial as to everything else (obviously everything other than grand larceny), concluded a three-day trial, on January 5, 1973. Under said date, an order was entered in the Minute Book that the jury having reported that they could not agree, was dismissed, and a mistrial entered and the case was continued to the next term of court. On January 11, 1973, defendants filed a written motion seeking the entry of a judgment of not guilty as to the offenses in the two indictments and the included offense of petit larceny. In essence, it was the contention of the defendants in said motion that the jury had returned a verdict of not guilty as to grand larceny and a verdict that the defendants did not know they were stealing at the time they took the cattle; that said verdict, as a matter of law, nullified criminal intent, an essential element of both the lesser included offense of petit larceny and the offense of receiving and concealing stolen property.

Following the hearing of said motion, on the 16th day of February, 1973, the trial judge ruled that the jury had returned a verdict of not guilty as to the offense of grand larceny, '. . . but that the offense of receiving and concealing stolen property and petit larceny being the remaining offenses within the indictment, have not been, by a jury, determined and that a mistrial as to those offenses should be declared by the court and that a certain date for the trial of the remaining offenses should be set.' In a subsequent paragraph of the order, the cases were set for trial on June 19, 1973.

Thereafter, defendants filed a petition for the writs of certiorari and supersedeas in the Court of Criminal Appeals and the second trial has been continued pending action on said petition. On presentation of said petition to one member of that Court an order was entered directing the issuance of the writ and that the case be heard by a three-judge panel.

The theory and contention of defendants in that Court, and here, is that there was a jury verdict of not guilty of the offense of grand larceny, and that there was also a verdict exonerating them of any criminal intent, and that it follows, as a matter of law, from the facts in this case appearing in the record of the first trial which is before the Court, that they have been fully exonerated of all offenses included in the two indictments and the trial judge's order setting a date for the second trial violates the constitutional right protecting against double jeopardy.

The Court of Criminal Appeals, with one Judge dissenting, held that the writ of certiorari is not available to review said order of the trial judge; that the trial judge was not acting illegally, nor beyond his jurisdiction, and that defendants have a plain, speedy and adequate remedy by pleading double jeopardy at the beginning of the second trial; that should the trial judge overrule the plea and defendants be convicted, they could then raise the question on appeal.

Judge Russell, dissenting, held the writ available to review the issue of double jeopardy, basically for the reason that the constitutional protection against double jeopardy is intended to protect against a second trial for the same offense, as well as a second punishment. With respect to the merits of defendants' contention, the dissenting judge held that the acceptance of the verdict of not guilty to grand larceny in the context of this case was an exoneration of all charges.

We granted the writ of certiorari and heard oral argument.

The State contends, first, that the writ of certiorari cannot be employed to review defendants' contention of double jeopardy at this stage; second, that there was no jury verdict at all, and third, if there was a verdict of not guilty as to grand larceny, the trial judge was correct in ordering a second trial on the lesser offense of petit larceny and the offense of receiving and concealing stolen property.

If defendants have been acquitted of all three charges included in the two indictments, as they contend, a second trial upon any one or more of the same charges is constitutionally impermissible, state and federal.

The common-law rule, the Tennessee and the United States constitutional provisions against double jeopardy protect an accused from the peril of both a second punishment and a second trial for the same offense. Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874); Kepner v. U.S., 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904); Stroud v. U.S., 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919); Green v. U.S., 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); King v. State, 216 Tenn. 215, 391 S.W.2d 637 (1965).

It is quite apparent that if the writ of certiorari is not available to the defendants in the posture of this case, then courts in Tennessee are powerless to protect defendants from the ordeal of a second trial, unconstitutional at its inception.

In discussing the use of writ of certiorari in McGee v. State, 207 Tenn. 431, 340 S.W.2d 904 (1960), Mr. Justice Felts, writing for the Court, said:

'The phrase 'exceeded the jurisdiction conferred,' and the phrase 'acting illegally,' both refer to action by such inferior tribunal beyond, not within, its jurisdiction. Referring to the phrase 'acting illegally,' this Court, in the Hunt case, supra, said:

'Without undertaking to define that phrase of the statute with exactness or to say what it includes, we think it clear that the common-law writ, as distinguished from the statutory writ, or Certiorari in lieu of appeal, may not be resorted to for the correction of technical or formal errors, not affecting jurisdiction or power, or for the correction of defects that are not radical, amounting to an illegality that is fundamental, as distinguished from an irregularity."

We have no hesitation in holding that ordering a defendant to trial a second time in the same court, for the same offense, is an illegality that is fundamental, as distinguished from an irregularity. We are not content to say that, in Tennessee, defendants can have only one-half of the constitutional protection against double jeopardy; that, while we will protect them against double punishment upon their appeal after a second trial, we have no procedural vehicle to protect against two trials for the same offense.

Appropriate here is the following statement from a Missouri case, quoted with approval in Conners v. City of Knoxville, 136 Tenn. 428, 189 S.W. 870 (1916):

'The statement that certiorari will not issue where either appeal or error goes, though frequently met with in text-writers, and in some reports, is neither strictly true nor accurate. There are marked exceptions. Thus, where the exigencies of the case are such that the ordinary methods of appeal of error may not prove adequate, either in point of promptness or completeness, so that a partial or total failure of justice may result, then certiorari may issue. Harris Certiorari, § 64.'

Not every plea of double jeopardy is ripe for review by certiorari upon being overruled. Here we have the entire record of the first trial properly before the Court, and all that is required to determine the validity of defendants' contention is to interpret the action of the jury and then determine whether, in the context of the evidence in the first trial, defendants were acquitted of all charges. No additional evidence or pleading at the second trial is required before the appellate courts can pass upon the issue presented by defendants, raising a question of illegality in the action of the trial judge in putting them to trial a second time in the same court for the same offense.

Much is said in the majority opinion of the Court of Criminal Appeals about the necessity of pleading double jeopardy in the trial court. The view we take of this case renders the authorities cited inapplicable. The written motion of defendants filed in the trial court, heretofore referred to, expressly alleges that the defendants were placed in jeopardy, tried by a jury, and found not guilty of...