Wilkerson v. State

• Decision Date: 09 November 1962
• Parties: Jack WILKERSON, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error. 15 McCanless 32, 211 Tenn. 32, 362 S.W.2d 253
• Court: Tennessee Supreme Court

Page 253

362 S.W.2d 253

Jack WILKERSON, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.

15 McCanless 32, 211 Tenn. 32, 362 S.W.2d 253

Supreme Court of Tennessee.

Nov. 9, 1962.

Samuel M. Chambliss, Chattanooga, for plaintiff in error

George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Nashville, for the State.

WHITE, Justice.

The plaintiff-in-error, Jack Wilkerson, was convicted for having committed armed robbery and sentenced to serve twenty-five years in the State Penitentiary. He has appealed and has assigned errors which raise the following points: (1). the evidence preponderates against the verdict and in favor of the innocence of the defendant. (2). the defendant's contention of double jeopardy should have been sustained because he had been previously convicted of another robbery which grew out of the same set of circumstances; and (3). the prosecution of the defendant in separate trials for two offenses of armed robbery growing out of the same circumstances amounted to a denial of due process guaranteed him by the Fourteenth Amendment to the Constitution of the United States.

In the brief filed on behalf of plaintiff-in-error all of the assignments are considered together since 'all have to do with the same question of constitutional law; that is, whether the trial of an individual for robbing a store owner is barred by his previous conviction for robbing a customer in the store.'

The record shows that at about 10:00 o'clock P.M. on May 24, 1960, Jack Wilkerson came onto the premises of the United Liquor Store of Chattanooga, Tennessee, and announced to the manager of the store 'this is a hold-up' and then forced the manager to give to him approximately $700.00 and two bottles of vodka at the point of a gun. Thereafter, the manager was required to remove his trousers and to retreat to a back room of the store where he was locked in and then the janitor of the store was locked in another back room.

Shortly thereafter the witness, John Long says that he came into the store and upon entering found one man present whom he thought to be the clerk and that the man was behind the counter at the time. The man then came from behind the counter and placed something against his back and said 'go into the bathroom and you will not get hurt.' The defendant then took his billfold and locked him in the bathroom. He was later released by the manager.

Thereafter, the defendant was tried and convicted, upon proper indictment, for robbery of John Long, the customer, and the witness in the instant case, and was sentenced to serve thirty years in the State Penitentiary.

Upon arraignment of the defendant in the case at bar he entered a plea of autrefois convict, that is, that he had been formerly convicted of the same crime and stated specifically tht 'heretofore, on the 3rd day of October, 1961, defendant was convicted in the Criminal Court of Hamilton County of the same offense as charged in this case and said conviction constitutes a bar to further prosecution for said offense.'

Upon consideration thereof, together with the supplemental plea, explaining the factual basis upon which said plea of autrefois convict was made the Court overruled the same and upon the trial, a jury convicted the plaintiff-in-error and imposed the sentence hereinabove set out.

The defendant did not testify and no argument is made on his behalf relative to the weight of the evidence. The real contention of the plaintiff-in-error is that the robbery of Long, for which the plaintiff-in-error has been found guilty and sentenced to serve a term in the State Penitentiary, and the robbery of the United Liquor Store were a part of the same of...