Bethany v. State

565 S.W.2d 900, 1978 Tenn. Crim. App. LEXIS 294
CourtCourt of Criminal Appeals of Tennessee
DecidedFebruary 2, 1978
StatusPublished
Cited by54 cases

This text of 565 S.W.2d 900 (Bethany v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bethany v. State, 565 S.W.2d 900, 1978 Tenn. Crim. App. LEXIS 294 (Tenn. Ct. App. 1978).

Opinions

OPINION

BYERS, Judge.

The Appellant was convicted on six charges of committing a crime against nature (fellatio) and sentenced to serve not less than ten (10) years nor more than fifteen (15) years in the penitentiary on each count. Three of the sentences were ordered to be served consecutively and three concurrently which effected a sentence of not less than thirty (30) nor more than forty-five (45) years.

The Appellant, a scoutmaster, engaged in acts of fellatio with six of seven young boys he took on a camp-out. Two of these boys were older than twelve and the rest were twelve or younger. Three or four of these boys committed acts of fellatio upon each other. One of the boys did not engage in any act of fellatio with anyone.

The Appellant has assigned six errors. Two of the errors complain of the court’s refusal to give requested charges to the jury; one says the court should have declared a mistrial because of the State’s argument to the jury, their questioning of a witness and the bringing of several of the boys back into the courtroom for this wit[902]*902ness to identify; two of the assignments attack the sufficiency of the evidence, particularly claiming that there is no corroboration of accomplice testimony to support the verdict; and, one assignment says the trial court erred in not running all the sentences concurrently.

The judgments are affirmed.

The trial judge refused to charge the special request submitted by the Appellant because he had covered these matters in his general charge to the jury. We have examined these requests and the charge given by the trial judge and agree that he accurately charged the law. There was no requirement, therefore, that he give the charges requested. Bostick v. State, 210 Tenn. 620, 360 S.W.2d 472 (1962). Additionally, one of the charges sought to have the court instruct the jury that all of the boys, as a matter of law, were accomplices in all cases if the act of fellatio was committed on them as alleged. This was not an accurate statement of the law in this case and the trial judge was not required to give the charge. Raine v. State, 143 Tenn. 168, 226 S.W. 189 (1920).

The Appellant complains because the Assistant District Attorney General stated that a witness had been mistaken in the identification of one of the boys who was on the camp-out. The evidence showed some confusion by the witness on the identification of one of the boys who was on the camp-out. The argument by the prosecution to the jury was supported by the evidence and was thus proper. The questioning of the witness, which is another basis for the mistrial motion, was to clear up the confusion by the witness on the identification of the boy as was the bringing of the boys back into the courtroom. This was not improper, and the trial judge properly denied the motion for a mistrial.

The Appellant’s most strenuous complaint is a claim that each of the young boys involved in these separate charges were accomplices in all of the offenses and that no independent evidence was introduced to corroborate their testimony.

The Appellant relies upon Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811 (1959), and Boulton v. State, 214 Tenn. 94, 377 S.W.2d 936 (1964). In response to this, the State says that T.C.A. § 39-606 has changed the rule of Sherrill which holds that a participant in a crime against nature is an accomplice and further says that, even if this rule has not been changed, there is sufficient corroborative evidence of the accomplices’ testimony to support the verdict.

We do not agree with the State that T.C.A. § 39-606 has changed the Sherrill rule. However, we think the facts in the case before us are materially different from the facts in Sherrill and Boulton, supra, and find that there is sufficient corroboration of the alleged accomplices’ testimony to support the verdict of the jury.

The portion of T.C.A. § 39-606 which the State insists changed the Sherrill rule is an amendment to that statute passed by the Tennessee Legislature in 1969 and is as follows:

“Any male or female under the age of twelve (12) years who shall be unlawfully sexually molested or fondled under the provisions of this section is declared to be not an accomplice of the person charged with the violation of this section.”

The State says that the act should be construed in pari-materia with T.C.A. § 39-707 because they construe T.C.A. § 39-606 to have the general purpose of establishing that a child under twelve is not an accomplice in any sexually related offense in which he participates. Although this state has adopted the general rule that statutes relating to the same subject or having the same general purpose shall be construed in pari-materia, Gates v. Long, 172 Tenn. 471, 113 S.W.2d 388 (1938), we do not think that the amended portion of T.C.A. § 39-606 falls within the same subject, or has the same general purpose, as T.C.A. § 39-707, crimes against nature.

The amendment to T.C.A. § 39-606 deals with a specific subject — assault and battery upon a female under the age of twelve with the intent to unlawfully sexu[903]*903ally molest or fondle her, and assault and battery upon any male under the age of twelve years with intent to unlawfully sexually fondle him. T.C.A. § 39-707, on the other hand, proscribes an act which may be committed by adults with other adults or by adults with children. To construe these acts in pari-materia would be a strained and unintended construction.

Even though we do not apply T.C.A. § 39-606 in this case on the question of the accomplices’ testimony, the Appellant’s reliance on Sherrill and Boulton is not supported by the facts in this case. In Sherrill the defendant was prosecuted for a single act performed by two boys. In Boulton the defendant was prosecuted for a single act performed against one boy. In each of those cases, the only evidence presented was the testimony of the participants in the crime.

In the case sub judice, the Appellant was prosecuted for six separate acts of fellatio committed against six different boys.

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Cite This Page — Counsel Stack

Bluebook (online)
565 S.W.2d 900, 1978 Tenn. Crim. App. LEXIS 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bethany-v-state-tenncrimapp-1978.