Evans v. State

571 S.W.2d 283, 1978 Tenn. LEXIS 643

Opinions

OPINION

COOPER, Justice.

Petitioner, Donald Ray Evans, was convicted of first degree burglary, with the punishment for that crime being fixed by the jury at five to ten years in the penitentiary. The punishment was enhanced to life imprisonment under the provisions of T.C.A. § 40-2801 et seq. upon the jury’s finding that the petitioner was an habitual criminal. On appeal, the Court of Criminal Appeals affirmed the judgment. We granted certiorari to clarify certain language in the principal opinion of that court concerning the number of convictions required to bring the habitual criminal statutes into play, and also to determine if the petitioner’s prior felony convictions were such as to support his sentencing as an habitual criminal. While the petitioner has raised several other issues in his assignments, we believe that these were disposed of correctly by the Court of Criminal Appeals, and do not merit further consideration by this court.

The habitual criminal act, T.C.A. § 40-2801 et seq., does not create an independent offense, but merely serves to enhance the punishment for a crime committed by a person who is an “habitual criminal.” Harrison v. State, 217 Tenn. 31, 394 S.W.2d 713 (1965). An habitual criminal is defined in T.C.A. § 40-2801 as

[a]ny person who has either been three (3) times convicted within this state of felonies, not less than two (2) of which are among those specified in §§ 39-604, 39-605, 39-609, 39-610, 39-3708, 40-2712, 52-1432(a)(1)(A) or were for a crime punishable by death under existing law . or who has been three (3) times convicted under the laws of any other state, government, or country of crimes, not less than two (2) of which, if they had been committed in this state, would have been among those specified in said §§ 39-604, 39-605, 39-609, 39-610, 39-3708, 40-2712, 52-1432(a)(1)(A) or would have been punishable by death under existing laws . . . . [,]

with the provisos that petit larceny is not to be counted as one of the three convictions, and that each conviction must be for a separate offense, committed on a separate occasion. Under T.C.A. § 40-2803, when an habitual criminal is indicted for one of the offenses specified in § 40-2801, the indictment may also include a count charging that the defendant is an habitual criminal. In the event that the defendant is convicted of this, the principal offense, the jury then considers the habitual criminal count. Harrison v. State, 217 Tenn. 31, 394 S.W.2d 713 (1965). If the jury finds that the defendant was an habitual criminal at the time he committed the principal offense, the punishment for that offense is enhanced to life imprisonment, with the further provision that the defendant is not eligible for parole. T.C.A. § 40-2806.

The principal opinion of the Court of Criminal Appeals, over the strong disagreement of two of the judges, stated that the crime of which the defendant stands charged may be used as one of the three felonies that are required under T.C.A. § 40-2801 to impose habitual criminal status on the defendant. Under this reading of the statute, the State would need to show a total of only three convictions in order to impose the increased punishment set forth in T.C.A. § 40-2806: Two prior convictions, and the present conviction, the punishment of which the State seeks to enhance. In reaching this conclusion, the author of the principal opinion relied on some admittedly misleading dicta in Pearson v. State, 521 S.W.2d 225 (Tenn.1975). Such an interpretation of the habitual criminal act is incorrect. The act provides that “when an habitual criminal as defined in § 40-2801 shall commit” [emphasis supplied] one of the enumerated felonies, the punishment for that crime will be enhanced. T.C.A. § 40-2806. Clearly, then, to bring the defendant within the ambit of the statute, the State must show that he was an habitual criminal at the time he committed the principal offense. Of necessity, such a showing must be made independently of that offense. Therefore, we hold that the present offense, the punishment of which the State seeks to enhance, may not be used as one of the convictions necessary to bring the defendant within the definition of an habitual criminal. Wright v. State, 217 Tenn. 85, 394 S.W.2d 883 (1965); Brown v. State, 186 Tenn. 378, 210 S.W.2d 670 (1948); McCummings v. State, 175 Tenn. 309, 134 S.W.2d 151 (1939).

In his assignments of error, the petitioner has questioned whether the prior crimes of which he was convicted are such as will support a finding that he was an habitual criminal at the time he committed this burglary.

In so far as it is material to this aspect of the case, the record reflects that, prior to his present conviction for burglary, the pe titioner had been convicted twice of felonious escape and once of crime against nature in Tennessee, and of both larceny from the person and the attempted breaking and entering of a building in Michigan. Faced with this evidence, the petitioner quite understandably does not question whether the number of his prior convictions is sufficient to bring him within the definition of an habitual criminal. He does, however, contend that the nature of those offenses is inadequate to do so. As we noted previously, for a person to be an habitual criminal, at least two of the three convictions necessary to bring him within that status must be for certain felonies specified in T.C.A. § 40-2801. Of the crimes committed by the petitioner, only larceny from the person and crime against nature are arguably among those specified in T.C.A. § 40-2801, the former as a result of the inclusion, by reference to T.C.A. § 40-2712, of larceny among the specified offenses, and the latter as a result of the inclusion of both sodomy and buggery by reference to the same statute. If the petitioner’s conviction for larceny from the person was for “larceny” and if his conviction for crime against nature was for either “sodomy” or “buggery,” as those three terms are used in T.C.A. § 40-2712, then the petitioner’s sentencing as an habitual criminal may stand. If either proposition is false, then it may not, for then his prior crimes would not include two specified in T.C.A. § 40-2801, as required.

First, then, the question is whether the petitioner’s conviction for the offense of larceny from the person in Michigan may serve as one of the specified offenses. We note that, at the time this offense was committed, the statutes of Tennessee and of Michigan that defined this offense were, in all respects material to this case, identical. Compare Tenn.Code of 1932, § 10927, with Mich.C.L.A. § 750.357. Thus, the acts that the petitioner committed in Michigan, and which led to his conviction under the Michigan statute, necessarily would have supported a conviction of larceny from the person under T.C.A. § 39 — 4206 as it was in force at that time had they occurred in this state. The question thus becomes whether “larceny,” as that term is used in T.C.A. § 40-2712, includes the offense of larceny from the person under Tennessee law. “Larceny,” without further qualification, is a general term encompassing all of the statutory forms of larceny. See People v. Crane, 356 Ill. 276, 190 N.E. 355 (1934); State v. Cabell, 252 N.W.2d 451 (Iowa 1977). It is apparent from the language of T.C.A. § 40-2801 that the legislature understood the term’s use in T.C.A. § 40-2712 to be in this general sense, for after incorporating by reference “larceny” as used in that statute as one of the specified crimes under the habitual criminal act, they expressly excluded petit larceny from that category. Such a proviso would have been unnecessary had they not understood “larceny” as used in T.C.A. § 40-2712 to include all of the statutory forms of that crime. Thus, a conviction for any of these offenses — with the express exception of petit larceny — may serve as one of the specified offenses for the purpose of establishing a defendant’s status as an habitual criminal, and the trial judge’s instruction to the jury in this case to the effect that the petitioner’s conviction for larceny from the person could be employed for that purpose were correct.

The petitioner has also questioned whether his conviction for committing a crime against nature, as proscribed by T.C.A. § 39-707, may be counted as one of the two specified felonies. As we noted previously, T.C.A. § 40-2801 includes by reference the crimes listed in T.C.A. § 40-2712 as ones which may be used for this purpose, and among the crimes set forth in that statute are sodomy and buggery. There is no dispute but that the petitioner’s conviction for crime against nature must fall within the definition of one of the two to be considered a specified offense under T.C.A. § 40-2801.

Neither sodomy nor buggery is defined in T.C.A. § 40-2712, or elsewhere in the code. Furthermore, there appears to have been no authoritative determination by the courts of this state as to their respec tive meanings as employed in this statute.¹ Therefore, we must look to the common law. Cf. McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934). At common law, these two terms do not appear to have been employed with complete consistency.² However in our view of this case, only one aspect of their definitions is determinative, and on that aspect there appears to be little disagreement. The consensus of the authorities is that at common law neither sodomy nor buggery included any form of oral-genital sex, but rather, taken together, referred only to anal copulation among humans and to the copulation of a human with a beast. R. M. Perkins, Criminal Law 389-390 (1969). In view of the extreme penalty provided by the habitual criminal act, a conviction for acts outside the strict common law definitions of sodomy and buggery will not be held to be within the meaning of those terms as used in T.C.A. § 40-2712 absent a clear indication that such was the intent of the legislature.³ See, e. g., Chadwick v. State, 201 Tenn. 57, 296 S.W.2d 857 (1956). From this it follows that neither sodomy nor buggery as those terms are used in T.C.A. § 40-2712 is coextensive with the “crime against nature” prohibited by T.C.A. § 39-707, which has been interpreted as including several oral sex acts. See Stephens v. State, 489 S.W.2d 542 (Tenn.Cr.App.1973).

At trial, the judge instructed the jury to the effect that “crime against nature” and “sodomy” were synonymous, and that the petitioner’s conviction for the former could be counted as one of the two specified crimes required under T.C.A. § 40-2801. This instruction was incorrect, and, as the petitioner’s conviction for larceny from the person was the only other conviction that was for a specified crime that error was not harmless. As a result, the petitioner must receive a new trial on the question of whether he was an habitual criminal at the time he committed this burglary. At that trial, the judge should instruct the jury that the petitioner’s conviction for crime against nature may be considered to be one of the offenses specified under T.C.A. § 40-2801 only if the acts that resulted in his conviction for that offense were such as would have made him guilty of either sodomy or buggery at common law. The trial judge should further in struct the jury that, for this purpose, “sodomy” is defined as anal copulation among humans, while “buggery” is defined as the copulation of a human with an animal. While, as we noted previously, there is some disagreement among the authorities as to the precise meanings of these terms, the definitions that we have adopted have the advantages that they make the use of neither term redundant, and that, taken together, they embrace the core definitions of the two terms at common law.

The remaining assignments of error raised by the petitioner ai;e without merit, and are overruled. Accordingly, his conviction for burglary is affirmed. His sentencing as an habitual criminal is set aside, and the case is remanded for a new trial on the habitual criminal count of his indictment, consistent with this opinion.

BROCK and HARBISON, JJ., concur. HENRY, C. J., and FONES, J., concur in part and dissent in part.

Footnotes

1

. Beginning with Fisher v. State, 197 Tenn. 594, 277 S.W.2d 340 (1955), a number of cases have stated that Tennessee has adopted a broad definition of the term “sodomy.” See, e. g., Stephens v. State, 489 S.W.2d 542 (Tenn.Cr.App.1973). Cf. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). Strictly speaking, however, those statements have been dicta. The statute being construed in the decisions in which the statements appear was T.C.A. § 39-707, which prohibits “crimes against nature,” and they were made in the course of providing a definition for that phrase. At no time were the courts called upon to define “sodomy,” as it is used in T.C.A. § 40-2712. Thus, it would be more accurate to say that Tennessee has adopted a broad definition of “crime against nature.” That definition has been refined over the years so that it now includes virtually every unnatural sexual act. See, e. g., Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811 (1959); Stephens v. State, supra. We have no quarrel with that proposition. From it, however, it does not follow that the definition of either “sodomy” or “buggery” is similarly broad.

2

. “Buggery” has been held both to include any unnatural sexual act, and to be limited to copulation with animals. Compare Ausman v. Veal, 10 Ind. 356 (1858), with State v. Morrison, 25 N.J.Super. 534, 96 A.2d 723 (1953) and Comm. v. Poindexter, 133 Ky. 720, 118 S.W. 943 (1909). Similarly, “sodomy” has been held both to refer to any unnatural sexual act, and to be limited to anal homosexual copulation. Compare Smith v. State, 150 Ark. 265, 234 S.W. 32 (1921), with Ausman v. Veal, supra.

3

. That the legislature in enacting T.C.A. § 40-2712 intended to use both buggery and sodomy in a limited sense is shown by the inclusion of both in the statute. Obviously, had the broadest meaning of either term been intended, the use of the other would have been superfluous. The derivation of the two statutes is also persuasive. The first progenitor of T.C.A. § 39-707 was the Acts of 1829, ch. 23, § 17, which proscribed sodomy and buggery specifically. Section 71 of the same chapter made both crimes infamous. In the Code of 1858, § 4843, the wording was changed so as to use “crime against nature” in the statute defining the offense. However, the infamy statute continued to use the words “sodomy” and “buggery.” Code of 1858, § 3812. The difference in the language supports the inference that the legislature did not consider the acts referred to in the two statutes to be identical.