Murff v. State

425 S.W.2d 286, 221 Tenn. 111, 25 McCanless 111, 1967 Tenn. LEXIS 359

• Court: Tennessee Supreme Court
• Decided: November 27, 1967
• Status: Published

Opinions

Mr. Justice Humphreys

delivered the opinion of the Court.

The issues presented' by this appeal are succinctly stated in plaintiff-in-error’s brief as involving “the sufficiency of a warrant issued by the general sessions court charging appellant with, ‘driving while under the influence of an intoxicant’ and, further, the validity of the action of the circuit judge, where said warrant was challenged, in permitting the district attorney-general to amend the warrant by adding: ‘Driving an automobile while under the influence of an intoxicant npon a public highway.’ ”

There is no bill of exceptions and Murff relies exclusively on his legal contentions the warrant charged him with no offense and that it was so fatally defective as not to be amendable; and in any event, not by the prosecutor, who had no knowledge of the facts.

On July 18, 1966, Murff was arrested on two Williamson County general sessions court warrants. The affidavit portion of one state warrant, which was verified by Earl M. Huff, charged that on July 15, Murff had committed “the offense of driving while under the influence of an intoxicant same being fourth offense. First offense occurring on October 14, 1961, general sessions court, Smith County, Tennessee. Second offense occurring July 13, 1963, City Court of Nashville, Tennessee. Third offense occurring July 15, 1966, City Court of Nashville, Tennessee. ’ ’

The other state warrant, also verified by Huff, charged Murff with the offense of “driving while license revoked,” on the same day as the other offense, July 15, 1966, and this warrant was likewise issued July 18, 1966!

Upon his arraignment before the general sessions judge, Murff waived in writing his right to be tried by presentment or indictment of a grand jury, and right of trial by a. jury, and entered pleas of guilty to both state warrants, for which he was fined $50.00 and sentenced to six months in jail under the warrant charging him with a fourth offense of driving while intoxicated; and was fined $50.00 and sentenced to thirty days in jail for his offense of driving while his license was revoked.

Dissatisfied with, the result of this proceeding, Murff appealed to the Circuit Court. There, when arraigned on the two state warrants, bis counsel moved the court to dismiss or quash the warrant charging’ Murff with ‘‘driving while under the influence of an intoxicant”, because the warrant did not specify that Murff was driving a motor vehicle, or that the driving took place on a public road.

To the second warrant, charging that Murff was guilty of the offense of “driving while license revoked”, the plea was not guilty.

The trial judge was of opinion, and held, that the first warrant was not void, but charged defendant with an offense. However, over Murff’s objection he allowed the State to amend the warrant to read, “driving an automobile while under the influence of an intoxicant upon a public highway.”

The cases were then tried, and the court found defendant Murff guilty of a fourth offense of driving while under the influence of an intoxicant, and of driving without a license; and assessed as punishment, confinement in the county jail or workhouse for six months and a fine of $50.00 and costs in the intoxicated driving case, and a fine of $50.00 and costs in the driving vehicle while license was revoked case.

In this Court, while three errors are assigned, they make the two contentions first noted. With respect to these we have concluded: (1) that the warrant when read in its entirety was not illegal and void for failure to charge an offense; and (2), that in any event, the trial judge had discretion to allow the arrest warrant to be amended, and this amendment was not void because of the way it was made.

While it is true as plaintiff-in-error argues, that T.C.A. sec. 59-1031 limits the offense there defined and proscribed to persons driving or in physical control of an automobile or other motor driven vehicle on the public roads and highways, of the State of Tennessee, and the streets and alleys of cities and towns, (Olson v. Sharpe, 36 Tenn.App. 557, 259 S.W.2d 867, 876), it does not follow that the warrant, when read in its entirety is void. For, the warrant does not simply charge Murff with “driving while under the influence of an intoxicant”, it explicitly and specifically charges him of having been convicted of the offense attempted to be described on three prior occasions, the dates of which were set out in the warrant.

So, having in mind that T.C.A. sec. 59-1035, which prescribes the penalty for violating T.C.A. sec. 59-1031, and so must of course be read in pari materia therewith, prescribes increased punishment for successive violations of the drunk driving statute, and there being no other offense to which the three prior offenses alleged in the warrant have any relevancy or connection, we have, in our opinion, allegations in the state warrants which adequately meet the requirements of T.C.A. sec. 40-708, with respect to the contents of warrants of arrest, providing:

“40-708. Name of defendant — Offense stated. — The -warrant should specify the name of the defendant, but if it be unknown to the magistrate, the defendant may be designated therein by any name. It should also state the offense either by name, or so that it ccm be clearly inferred

With respect to-the trial judge’s- authority to allow an arrest and trial warrant to be amended, we think the best rule is that stated in 22 C.J.S. Criminal Law sec. 403(3) c. p. 1091:

“As a general rule the complaint, affidavit, warrant, or information may be amended on the appeal, or a new complaint or information filed. However, the amendment or substituted warrant or complaint must not change the nature of the offense or add a new offense. ’ ’

It is of interest that in State v. Smith, 306 Mo. 451, 267 S.W. 869, the Missouri court overruled its prior holdings that the affidavit and information could not be amended, adopting the rule now generally followed, which permits both amendments or substitutions as the case may require.

The early cases, pronouncing against amendment of arrest warrants, arose out of the conflict between the king who sought unhampered power to arrest, and his subjects who sought with every reason to be free from such tyrranical power. In modern times, when even the rule against double jeopardy has been so modified as to permit amendments and substitutions in proceedings under indictments and presentments, there is no reason for not freely allowing amendments and substitutions of trial warrants where a defendant elects to go to trial upon such a warrant. In State v. Costen, 141 Tenn. 539, 213 S.W. 910, we held that an indictment could be recommitted to the grand jury finding it for amendment; in Holder v. State, 143 Tenn. 229, 227 S.W. 441, we held that at a subsequent term a new and valid indictment could be found and substituted for the first, defective indictment; and in Bowmer v. State, 157 Tenn. 124, 6 S.W.2d 326, we held that on reversal here for invalidity of the indictment, the matter might be recommitted to the grand jury on remand for a new and perfect indictment.

In the light of these holdings, there is simply no purpose or policy or reason to be served in holding that a warrant on which a defendant elects to go to trial cannot be amended or substituted as the case may require.

As to the contention the amendment could only be made by the affiant Huff, we point out that all we have before us is the order which recites that the court “allowed the State to amend the warrant to read” etc. In view of this, we must presume in favor of the regularity and validity of the amendment, and that it was with acquiescence and participation of Huff, who was both the affiant and arresting officer, and as a witness against Murff, must have been present in court for the trial. See State v. Nash, 51 S.C. 319, 28 S.E. 946.

Accordingly, the assignments of error are overruled and the judgment of the trial court is affirmed.

Burnett, Chief Justice, and Dyer, ChattiN and Cre-sON, Justices, concur.