Farris v. State

535 S.W.2d 608, 1976 Tenn. LEXIS 584

• Court: Tennessee Supreme Court
• Decided: March 30, 1976
• Status: Published

Opinions

OPINION

HENRY, Justice.

The principal issue in these cases is the validity of § 2 of Chapter 163 of the Public Acts of 1973, which appears in § 40-2707 T.C.A. as the last paragraph thereof, and which reads as follows:

It shall be the further duty of the trial judge charging jurors in cases of criminal prosecutions for felony offenses to charge the said jury as to the provisions of this section and as to the provisions of §§ 40-3612, 40-3613, 41-332 and 41-334, wherever applicable.

Both the trial court and the Court of Criminal Appeals upheld this section.

We affirm the James E. Farris case for the reason that Farris did not assign error in this Court directed to this portion of the statute.

The remaining defendants charged the trial court with error in charging the jury as to parole eligibility. This opinion is concerned with these two cases.

I.

The effect of the 1973 amendment is to require that trial judges, in criminal cases (with the exceptions noted in the statute), charge the. jury with respect to parole eligibility, certain powers and duties of the Board of Pardons and Paroles, good behavior allowances, and the allowance of honor time. There is no requirement that the jury be charged as to the loss of honor time. (See § 41-335 T.C.A.).

The Court of Criminal Appeals passed upon and sustained the constitutionality of so much of Section 40-2707, T.C.A. as requires that the jury fix the minimum and maximum term, in the cases of Sharp v. State, 513 S.W.2d 189 (Tenn.Cr.App.1974), and Halpin v. State, 515 S.W.2d 658 (Tenn. Cr.App.1974). This is true; however, in these cases, no attack was made upon so much of the statute as requires that the judge charge as to the aforementioned parole considerations.

In Sharp, the Court of Criminal Appeals, speaking through Judge Galbreath, sustained Chapter 163 of the Public Acts of 1973 in the face of a challenge asserting that the Legislature invaded the province of the Judicial Branch of the government; however, that case did not touch upon the issue here presented.

In Halpin, the Court of Criminal Appeals had under consideration an assignment which read as follows:

The Trial Judge erred in charging the jury regarding the doubling of the minimum sentence, said charge being based on an unconstitutional statute. 515 S.W.2d at 660.

The opinion copies Section 1 of the act, as it then existed, in its entirety, but stops short of Section 2, which is involved in the instant case. The court held in clear and unequivocal language:

We do not think the defendants have any standing to attack the validity of this statute because they have not been adversely affected by it. 515 S.W.2d at 662.

This statement operates to render as dictum the holding of the Court of Criminal Appeals, as to the constitutionality of the statute, moreover, this holding has no relation to the issue here under consideration.

In summary, as to the precise question herein involved, we address a matter of first impression. We are not, however, handicapped by lack of analogous precedent.

II.

Article II, Section 17 of the Constitution of the State of Tennessee provides, in pertinent part, as follows:

No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts, which repeal, revive or amend former laws, shall recite in their caption or otherwise, the title or substance of the law repealed, revived or amended.

The purpose of this constitutional provision is to assure that members of the Legislature and the public be given notice of legislative proposals and to prevent surprise and fraud in enactments. State v. Hailey, 505 S.W.2d 712 (Tenn.1974)..

Before discussing the precedents which in our view compel the conclusion that this Act is broader than its caption, it is necessary and proper that we consider the background of Section 40-2707 T.C.A.

The Indeterminate Sentence Law originated with Section 1 of Chapter 8 of the Public Acts of 1913, which provided in substance for sentences to an indefinite period not to exceed the maximum nor minimum term with allowances being made for good time and with the proviso that the person sentenced would be subject to release or parole and to final discharge by the Board of Pardons and Paroles, along with certain other provisions not here material. It is pertinent to observe that this section made absolutely no reference to the substance of any charge to be given to the jury.

This section was amended by Chapter 52 of the Public Acts of 1923 and as amended appears as § 40-2707 T.C.A.

The caption of Chapter 52 provided:

An act to be entitled an act to amend Section 1 of Chapter 8 of the Public Acts of 1913, so as to provide for the verdict of the jury to fix the maximum term in cases where maximum and minimum term is provided by law.

The body of the Act simply provides that the jury would fix the maximum term of the convicted defendant, would return a verdict in the form set forth in the amendment and would require that the trial judge in imposing judgment not fix a definite term but would sentence such person to the penitentiary for a period of not more than the term fixed by the jury, making an allowance for good time as now provided by law.

Again nothing in the caption or body of Chapter 52 of the Public Acts of 1923 even hints at any charge to be given to the jury.

Then came Chapter 163 of the Public Acts of 1973, the caption of which reads as follows:

An act to amend Section 40-2707 Tennessee Code Annotated, relative to verdict and sentence on felony conviction. (Emphasis supplied).

There is nothing whatsoever about this caption to alert any legislator or any interested citizen that tucked away into the Act would be a requirement that the judge charge the jury on parole considerations. All remaining portions of the Act relate to “verdict and sentence” as the caption said it would, but again the action was wholly and utterly silent on the charge to the jury.

Chief Justice Grafton Green indelibly established the law of this State relative to the unconstitutionality of acts containing matter not within the scope of their captions in Hays v. Federal Chemical Company, 151 Tenn. 169, 268 S.W. 883 (1925). Judge Green stated:

While conceding that it is not necessary for the title of an amendatory act to set out the amendments proposed to be made, if such amendments fall within the title of the original act, we think, when the title of the amendatory act does specify the particulars in which the original act is to be amended, the body of the amending act should not contain other matters. Any other rule would be unsafe. If the title of an amending act merely indicates generally that amendments of the original act are to be made, then it rests upon all those affected by the original act to investigate, and see in what respects the original act is to be changed. If the title of the amending act, on the contrary, sets out the particular amendments that are to be made to the original act, it may be reasonably concluded that no amendments other than those stated are to be attempted. It would promote deception, if, under a caption undertaking to specify amendments to be made, other and different amendments were included in the body of the act. (Emphasis supplied). 151 Tenn. at 175, 268 S.W. at 384.

This was a case of first impression in 1924 but it established the law in Tennessee and it is upon this case that we base this portion of this opinion, feeling as did Judge Green, that if this act had simply stated that it was an act to amend § 40-2707 Tennessee Code Annotated, this would have been sufficient as legislators and concerned citizens would have been put on inquiry. But where the caption goes further and specifies “verdict and sentence” it falls within the prohibition laid down by Judge Green in Hays and any portion of the act beyond this subject and not relating to verdict or sentence is wholly and utterly void. Nor can we cure the defect by saying that it is germane. The charge of the jury is no more germane to verdict and sentence than is the indictment, the voir dire examination of the jury, the opening statement, the closing arguments or any of the other stages during the progress of a criminal trial.

In Tennessee Electric Power Co. v. City of Chattanooga, 172 Tenn. 505, 114 S.W.2d 441 (1937), this Court speaking through Mr. Justice DeHaven, stated:

A statute reciting the title or substance of a former law and expressly purporting to amend same need not indicate the particular and specific character of the amendment, if the amendment is germane to and embraced in the subject expressed in the original act. (citing cases). However, where the title of the amendatory act recites the title of the act to be amended and also specifies the amendments to be made, the legislation is thereby limited to the amendment specified and anything in the body of the act outside of these is void. (Emphasis supplied). 172 Tenn. at 517, 114 S.W.2d at 445.

In Armistead et al. v. Karsch et al., 192 Tenn. 137, 237 S.W.2d 960 (1951), this Court said:

When the Legislature is presented with a caption which says that it is to amend another Act of the Legislature, of course, the Legislature and those interested have notice of what this other Act is because it is in force and spread on the books, but when this amendatory Act goes further and says that the amendment is only to cover certain specified things this is telling the Legislature that now the sign is pointing out to you a certain specific place or direction and that only such specific things will be done by this amendment. (Emphasis supplied). 192 Tenn. at 142, 237 S.W.2d at 962.

The Idaho Supreme Court has passed on this precise matter. In Hammond v. Bingham, 83 Idaho 314, 362 P.2d 1078 (1961), it said:

In addition to the title stating that I C, § 33-909 is being amended, it proceeds to particularize some, but not all, of the changes . . . When such specifications are made the legislation is limited to the matters specified and anything beyond them is void, however germane it may be to the subject of the original act. (Emphasis supplied). 362 P.2d at 1081, 1082.

The Alabama Supreme Court has held the rule to be that the title of an act which merely purports to amend certain sections of the Code cannot add a new and different subject. Clutts v. Jefferson County Board of Zoning Adjustment, 282 Ala. 204, 210 So.2d 679 (1968).

The Wyoming Supreme Court, in Smith v. Hansen, 386 P.2d 98 (Wyo.1963) stated the rule thusly:

On the other hand, we consider the following cases authority for the holding that when a title particularizes the changes which are to be made in an amendatory act, the legislation is limited to matters specified, and anything beyond this limitation would be void regardless of how germane it might be to the subject of the original act. (citing cases from ten jurisdictions, including Hays, supra). 386 P.2d at 101.

In 73 Am.Jur.2d Statutes, § 130, it is stated:

Of course, an act to amend a section of a previous act which contains subjects not expressed in the title of either the amending act or the original act is unconstitutional.

In § 133, of the same treatise, it is said: Moreover, a single statute amendatory of a code may amend some sections, repeal others, and add new sections, provided the act as amended is such as might have been validly enacted in the first instance under the title given the original code or other statute.

Again, the provision with which we deal directing that the trial judge charge on parole eligibility, etc., is not reflected in the 1913 act, body or caption; the 1923 act, body or caption, or in § 40-2707 as it appears in the main body of Tennessee Code Annotated. This being true, we see no escape from the conclusion that this section must be declared to be invalid.

We are cited to Woods v. State, 130 Tenn. 100, 104, 169 S.W. 558 (1914), dealing with the original indeterminate sentence law, wherein the constitutionality of the act was sustained. We are in wholehearted accord with the Woods decision but, with utmost deference, we do not see its application to this case.

Reliance is also placed upon Pharr v. Nashville, C. & St. L. Ry., 186 Tenn. 154, 208 S.W.2d 1013 (1948) which holds in substance that “(w)hen any section of the official Code is amended the members of the Legislature are presumed to know the nature of the section sought to be amended”. With this statement we find no fault, but it most assuredly has no application were new matter is injected. Moreover, the Legislature and the public had the right to assume that the amendatory statute would do what its caption stated it would do.

Reliance is also placed on Basham v. Southeastern Motor Truck Lines, Inc., 184 Tenn. 532, 201 S.W.2d 678 (1947), wherein the Court also had under consideration the caption of an act which simply stated that a particular Code section was being amended. The Court very properly held that a reference in the caption to the section of the Code proposed to be amended is sufficient to comply with the requirements of Section 17, Article II of the Constitution of Tennessee. This would be true had the reference been to the section, without more. Legislators and citizens then would have been put upon inquiry; but where the caption goes further and specifies the nature of the amendments by adding the words “relative to the verdict and sentence on felony convictions”, all concerned had a right to assume that this is precisely what the amend-atory act did. Such was not the case, however, and this makes this portion of the statute wholly and utterly void as being broader than its caption.

III.

We further hold that Section 2 of Chapter 163 of the Public Acts of 1973 requiring that trial judges charge juries in felony cases on the parole procedure and allied matters is impermissibly vague and impossible to apply. Jurors of reasonable or common understanding and intelligence are not capable of understanding the various ramifications of the parole system. We submit that there are few practicing attorneys, otherwise knowledgeable in criminal law, or judges at any level, who have a complete understanding of these matters. Only the Records Clerk at the state penitentiary, and the convict population are knowledgeable in this highly specialized area. The law is a paradox on its face. When the statutes involved are read they serve only to suggest that at some future date the defendant will be the beneficiary of a parole. This law proceeds upon the assumption that jurors, in a necessarily brief charge, can be made to understand a law which is notoriously complex.

We have checked the charge given by the trial judges in these cases. In each instance he charged the exact terms of each statute, without comment. We have read each charge, aloud and slowly,' and find that this requires approximately four minutes — four minutes for twelve laymen to understand this technical and confusing statute. And yet we expect jurors to understand this statutory scheme and apply it to a defendant’s liberty based on just four minutes of oral instruction, and a written copy of the charge taken to the jury room, which may or may not be read and which, we submit, is beyond the understanding of the average jury.

A proper consideration of parole eligibility involves, as a minimum, an analysis of regular parole, probationary parole and mandatory parole. It involves a starting point with a “flat release” date, determined by taking the maximum terms of the sen-fence and deducting therefrom all good time and honor credits. Assuming an indeterminate sentence of not less than five or more than ten years, the “flat time” is six years and one month.¹ To compute parole eligibility the jury must take the minimum term of five years or 60 months, and deduct the good and honor time credits on that sentence,² leaving a parole eligibility rate of 38 months or three years and two months. Can a jury understand this?

But this is only the beginning. The good and honor time credits are credited immediately upon the admission of the prisoner to the penitentiary. At all times thereafter they are subject to being removed in whole or in part for a violation or infraction of prison rules and regulations or if he “otherwise demean himself improperly”, whatever this phrase means. (§ 41-335 T.C.A.). But the jury is not told that on an administrative basis the prisoner can lose all good and honor time. Reverting to the above example, he could lose up to 69 months and yet the jury is not told this. It is led to believe that this 69 months will not be served — assuming it can make the computation above set forth.

And then there are the “incentive”³ credits which are compiled both on an “accrual” and “vested” basis. But these credits may also be lost as we understand the system.

Parole eligibility comes when the minimum sentence is served less all credits for good and honor time as calculated from the minimum sentence and subtracted from the minimum sentence — but his release is still discretionary with the Board of Pardons and Paroles.

It is obviously impossible for any living human being to compute, prior to verdict, how much time any prisoner will serve and yet this is precisely what trial juries are called upon to do. Otherwise, there is no conceivable point to charging the jury as to these matters.

Jurors should not be permitted to speculate on the length of sentences, discretionary parole, the accumulation of good and honor time and a whole conglomeration of contingent events which, if they come to pass at all, will come to pass in the future. Very heavily involved is the constitutional right of a defendant to a fair trial.

This is trial “by guess and by golly”, and we will not countenance it by upholding a statute which offends every sense of fairness and every precept of due process.

It tends to make a jury speculate on the length of time a convicted defendant will be required to serve and further tends to breed irresponsibility . on the part of jurors premised upon the proposition that corrective action can be taken by others at a later date. A greater defect in the law stems from the fact that jurors tend to attempt to compensate for future clemency by imposing harsher sentences.

The matter of the future disposition of a convicted defendant is wholly and utterly foreign to his guilt and is not a proper consideration by a jury in determining the length of his sentence.

Chief Justice A. B. Neil, eloquently stated the case in Graham v. State, 202 Tenn. 423, 304 S.W.2d 622 (1957) as follows:

The power to pardon, and/or commute a sentence of imprisonment as fixed by the jury, is foreign to the trial of any criminal case. The jury’s exclusive duty to assess the punishment in all cases must be exercised fully according to the provisions of the appropriate statute and as given in charges by the trial judge. They cannot, under any circumstances, consider the power of the Governor to pardon, or the authority of the Parole Board to grant paroles. Nor can they speculate as to what this Court might do on appeal. Gray v. State, [191 Tenn. 526, 235 S.W.2d 20] supra. If the rule were otherwise the verdict of the jury would be mere guesswork. Moreover, in such circumstances, this Court would never be able to decide if the trial judge approved the verdict based on the facts, or on some unaccountable speculation as to the possibility of a reduction of the sentence by the Governor. Both the State and the defendant are entitled to a verdict that is based solely and alone upon the facts of the case and the law as given in charge by the court. Such a trial imposes upon the jury the gravest responsibility. 202 Tenn. at 426, 304 S.W.2d at 624.

We hold that Section 2 of Chapter 163 of the Public Acts of 1973, which appears as the last paragraph of Section 40-2707 T.C.A. is unconstitutional and void.

We affirm as to James E. Farris since his case is not in the posture for appellate review for the reason above pointed out.

The error which we find in the charge to the jury bears only upon the question of punishment and has no relation to the jury’s finding of guilt or innocence.

To correct this error we reduce the sentence of William Wayne Robinson to three (3) to twenty-one (21) years and that of Roosevelt Lewis to five (5) to fifteen (15) years, and, as thus reduced their convictions and punishments are affirmed. These reductions are to the statutory minimum for their respective offenses. These revisions are subject to the consent of the State. If the State does not consent, their cases will be reversed and remanded for a new trial. Hunt v. State, 202 Tenn. 227, 303 S.W.2d 740 (1957); Forsha v. State, 183 Tenn. 604, 194 S.W.2d 463 (1946).

This decision will apply to these cases and to all others wherein convictions have not become final on the date of the release of this opinion. Sound considerations of public policy forbid retroactive application. The courts of this state have complied, in good faith, with the statutory mandate. No decision of this Court or of the Court of Criminal Appeals has foreshadowed the result we reach today. Orderly judicial administration is involved and we are not willing to post-review final convictions wherein this statute was charged. The drastic impact of retroactivity is obvious. We, therefore, apply this rule only to this case and others, wherein appropriate assignments have been made, and which have not yet become final.

Affirmed as to James E. Farris; modified and affirmed as to Roosevelt Lewis and William Wayne Robinson.

FONES, C. J., concurs. BROCK, J., concurring opinion. HARBISON and COOPER, JJ., dissent.

1 .The good and honor time credit on a ten-year sentence is 47 months; on a five-year sentence is 22 months. These credits accrue at the rate of 1 month for the first year, 2 months the second year, 3 months for each subsequent year until the tenth year and four months for each succeeding year — all of which the jury must be charged.

2 . Id.

3 . These credits come from participating in an athletic or vocational program.