Wright v. State

• Decision Date: 22 October 1965
• Citation: 217 Tenn. 85,394 S.W.2d 883
• Court: Tennessee Supreme Court

Page 883

394 S.W.2d 883

John William WRIGHT v STATE of Tennessee.

21 McCanless 85, 217 Tenn. 85, 394 S.W.2d 883

Supreme Court of Tennessee.

Oct, 22, 1965.

James C. Cunningham, Clarksville, for plaintiff in error.

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

BURNETT, Chief Justice.

The plaintiff in error, John William Wright, was convicted of burglary in the third degree on one count of the indictment, which was submitted to the jury prior to the second count, wherein he was charged as being an habitual criminal. After the conviction in the first count of burglary in the third degree, the second count was submitted to the jury, and the jury found him guilty on the second count. The jury fixed his punishment at ten (10) years in the State penitentiary on the first count, and the law, of course, fixes his punishment at life imprisonment on the habitual criminal count.

There is no question made as to the conviction in the first count of burglary in the third degree. The sole complaint made to the conviction of being an habitual criminal is based upon the trial judge's instruction to the jury and his refusal to give a requested instruction to the jury. In part of this complaint it is argued that the evidence preponderates against the verdict and in favor of the innocence of the accused. As a matter of fact there is no disagreement about the evidence supporting the conviction as an habitual criminal as coming within the requirements of the statute (T.C.A. Sec. 40-2801 et seq.).

The proof shows without any doubt that there were three previous convictions of this plaintiff in error within the purview of T.C.A. Sec. 40-2801, entitled 'Persons Defined as Habitual Criminals', and with the conviction of burglary in the third degree under the first count in this case it was sufficient to warrant the punishment under the statute (T.C.A. Sec. 40-2802) of the defendant as an habitual criminal.

The argument of the plaintiff in error is to the effect that the jury might under the law find the defendant not to be an habitual criminal in spite of the foregoing evidence; and it is said that the instruction of the trial judge was in error because it did not permit the jury to so find. In other words, it is inferentially argued, or may be read between the lines of the argument in the brief as well as that made in Court, that the judge should tell the jury that this is the law but you don't have to pay any attention to it if you don't want to. If you don't think the Legislature was right in fixing these different crimes and defining what brings one within the habitual criminal statute then don't pay any attention to it but go on and turn him loose. This is the effect of the argument herein on this feature of the case.

What we have just said is borne out by the affidavits of five jurors which were taken after the conviction and filed in support of the motion for a new trial. In other words, in these affidavits the jurors agreed unquestionably that the State had shown sufficient convictions within the habitual criminal statute (T.C.A. Sec. 40-2801 et seq.) to convict the man as being an habitual criminal, but these five, who made the affidavits, did not believe that the crimes for which he had been convicted were serious enough to be considered as making the man an habitual criminal. It seems to have been their idea that to make a man an habitual criminal he must be convicted of far more serious crimes than third degree burglary or things of that type, and it was for this reason that they questioned what they had done, even though they did convict him as an habitual criminal, because as they understood the charge of the court, if the man had been convicted of crimes as defined in the habitual criminal statute (T.C.A. Sec. 40-2801 et seq.) then there was nothing else for them to do. In other words, they had no right to totally disregard these things. As a matter of fact they didn't have the right to disregard what the Legislature had defined as making an habitual criminal even though juries sometimes do, and even though they had a right under the charge herein, as in all criminal charges that are properly given, to be the judges of both the facts and the law as given to them by the court.

As a matter of fact these affidavits by these five jurors should have been totally disregarded as was said many years ago by this Court in Scruggs v. State, 90 Tenn. 81, 15 S.W. 1074:

'The affidavit presented no good ground for a new trial. No rule of practice is better settled then that jurors will not be allowed to stultify themselves and vitiate their verdict by swearing they misunderstood the charge of the court. Norris v. State, 3 Humph. 333; Saunders v. Fuller, 4 Humph. 518; Wade v. Ordway, 1 Baxt. 229; Roller v. Bachman, 5 Lea 160; Richardson v. McLemore, 5 Baxt. 586; Cartwright v. State, 12 Lea 621.'

The last clause of Article 1, Section 19 of the Constitution of Tennessee provides, as follows: '* * * and in all indictments for libel, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases.' The question involved in this lawsuit is whether or not the trial judge's instruction herein complied with this constitutional requirement. He charged first on this feature of the case thus:

'It is sufficient for me to say that you are, in all criminal cases, the sole judges of the facts and of the law, as laid down to you by the court. The law, and the rules under which you may weigh the testimony of the witnesses, are set out and explained to you in this charge.'

We might say that we have very carefully read and re-read the charge herein and find it an example of a perfect charge to be given in criminal cases. We find everything adequately covered.

Later when asked for a clarification on this feature of the case the trial judge gave an additional instruction directly on the subject thus:

'Gentlemen, I say again to you that you are the sole judges of the facts and of the law, so laid down to you by the court, in any criminal case. You must apply the law and the facts to each other, and in so doing arrive at your verdict. If after doing so you are convinced beyond a reasonable doubt of the guilt of the defendant you should so find and such should be your verdict. If after doing so you are not convinced beyond a reasonable doubt of the guilt of the defendant you should acquit him and your...