Russell v. State

499 S.W.2d 945, 1973 Tenn. Crim. App. LEXIS 260

Opinions

OPINION

OLIVER, Judge.

Represented by appointed counsel, Russell and Sweeney were tried simultaneously and convicted upon four separate presentments, one charging Russell with escape from jail while confined on a felony charge, one charging Sweeney with escape from jail under like circumstances, one charging them jointly with the armed robbery of Charles Pope, and the other charging them jointly with taking and using Pope’s pick-up truck temporarily without his consent in violation of the joy-riding statute (TCA § 59-504). Each of the defendants was sentenced to imprisonment in the penitentiary for one year in the joyriding case and to ten years in the armed robbery case, and the court ordered those sentences to be served concurrently. Each was sentenced to not less than one nor more than three years in the penitentiary for escape from jail, and it was ordered that those sentences be served consecutively to their armed robbery sentences. An appeal in the nature of a writ of error to this Court was perfected in each case.

Although neither defendant has here challenged the sufficiency of the evidence to warrant and sustain their convictions, a brief resume of the material evidence is appropriate in the interest of clarity. It was stipulated and also established in the proof that the defendants were confined in the Williamson County Jail awaiting trial on felony presentments. In the early morning hours of May 24, 1971, very apparently with the help and connivance of a trusty named Buford who entered pleas of guilty to charges growing out of this incident, the defendants got out of their jail cell and exchanged their prison garb for their civilian clothing which was kept in the storeroom. Entering the office where night jailor Pope was reading a book while seated with his back to the door, Sweeney put a knife against his throat and they told him not to move and to do as he was told. Russell took Pope’s .38 Smith & Wesson revolver out of the desk drawer, they then had him to stand and took his keys and billfold out of his pocket, took $60 and threw the empty billfold on the floor, locked him up in the padded cell of the jail, and then they and trusty Buford fled in Pope’s pick-up truck which was parked outside. Other trusties unlocked the cell and released Mr. Pope and reported the escape. City police officers apprehended the defendants and Buford in Mr. Pope’s truck shortly thereafter and recovered his revolver and money. Neither of the defendants testified or presented any evidence.

In their first Assignment of Error the defendants insist, as they did in their motion for a new trial, that the trial court erred in permitting the sheriff to re-enter and remain in the courtroom after he and the other witnesses had been excluded when the rule for the sequestration of witnesses was demanded. For some reason, during the testimony of Mr. Pope, the court interrupted the proceedings and said: “Gentlemen, just a moment, I think I have the discretion about it and I’m going to ask the Sheriff to be in here as Sheriff.” Russell’s counsel noted an objection when the sheriff re-entered the courtroom.

This insistence is untenable. The sheriff was not present when the escape and robbery of Mr. Pope occurred, and there is nothing in his testimony to indicate that he was influenced in the least by what Mr. Pope and the other witnesses testified in his presence. Beyond that, the law is settled in this State that the exclusion of witnesses from the courtroom is not a matter of right, but rests in the sound discretion of the trial judge and that his action will not be reversed in the absence of a showing he abused his discretion to the prejudice of the complaining party. Nance v. State, 210 Tenn. 328, 358 S.W.2d 327; State ex rel. Phillips v. Henderson, 220 Tenn. 701, 423 S.W.2d 489; Rucker v. Tollett, Tenn.Cr.App., 475 S.W.2d 207. In Nance, supra, the Court said:

“Since probably the beginning of time in the trial of cases witnesses have been sequestered by order of the court on motion of counsel on either side. Our earliest reported case on the subject is Nelson v. State, 32 Tenn. 237. Obviously this rule, or expedient, is designed to detect falsehood as well as to prevent any witness from coloring his, or her, testimony either purposely or through influence by talking to other witnesses and hearing them talk. An interesting discussion and summary of the question under consideration may be found in Wharton’s Criminal Evidence, 12th Ed., Anderson, Vol. 3, sec. 840, page 260, et seq. At page 209 of this work, it is said:

‘The violation of the order of sequestration does not in itself make the witness incompetent or compel his exclusion’, citing authorities from many states.

“It is the settled law of this State that the matter of placing witnesses under, or exempting them from, the rule is within the discretion of the trial judge, and that his action will not be reversed unless it is made to appear that the court abused his discretion, and that such abuse worked to the prejudice of the complaining party. Pennington v. State, 136 Tenn. 533, 190 S.W. 546, and authorities therein cited.”

Here the sheriff’s testimony added nothing of controlling significance. He testified that one of the trusties called him at home and another called the police to report the incident; that he went to the jail and verified the escape; that he went to the scene where the police had apprehended the defendants and drove Mr. Pope’s truck back to the jail and returned the defendants to their cells; and that the escape was accomplished by the assistance of a trusty. As in Phipps v. State, Tenn.Cr.App., 474 S.W.2d 154, wherein the sheriff’s testimony was only cumulative, in the cases now before us we think it is unquestionable that the sheriff’s testimony was in no way crucial or determinative of the results, and that the trial judge did not abuse his discretion.

In the next and final Assignment Sweeney contends that the trial court erred in overruling his plea in abatement to the indictment on the ground of misnomer. No plea in abatement was filed. Instead, the following excerpt from the Bill of Exceptions reflects the entire conversation between Sweeney’s counsel and the court about this matter at the beginning of the trial:

“MR. PETERSEN: Your Honor, could we be allowed, this is a Court appointed case and we hate to wait until the last minute but unfortunately these men have been in the penitentiary for some time and we haven’t had an opportunity to speak with the defendants and my defendant is misnamed in the indictment and I would like to have the opportunity to have a Plea in Abatement for a misnomer typed up and entered into the record.

THE COURT: Well I would have to know whether did or not, I wouldn’t know him if I saw him.

MR. PETERSEN: I understand.

THE COURT: These were indicted at the present Term of Court, were they not.

DIST. ATTY. GEN. BATES: Yes, sir.

MR. PETERSEN: Yes, sir.

THE COURT: You might state your facts then, Mr. Petersen and see.

MR. PETERSEN: Your Honor please, my Plea in Abatement reads: Comes now the defendant, William David Sweeney, for Plea in abatement would state:

That his full name is William David Sweeney and that he is not named as the person indicted is named and that the indictments as against him, William David Sweeney, is improper, the indictments read David Ford Sweeney, and that is not the defendant’s name, Your Honor, please.

THE COURT: Well write it just that way and I’ll overrule it. That is the wording as you stated it.

MR. PETERSEN: Yes, sir.

THE COURT: All right.”

Obviously, no plea in abatement having been filed, no such plea ever came into existence in this case and the trial court was in error in purporting to rule upon a non-existent pleading. In Gray v. State, 194 Tenn. 234, 250 S.W.2d 86, the action of the trial judge in overruling a plea in abatement was assigned as error. The Court said:

“The assignment must be overruled for the following reasons: (1) there is no entry upon the minutes of the court showing the action of the trial judge upon said plea, and (2) we cannot look to the bill of exceptions to determine the question. We are not left in doubt as to this assignment. In Diamond v. State, 123 Tenn. 348, 363, 131 S.W. 666, 669, it was held:

‘The minutes of the court as sent up, show no action by the trial judge upon the plea in abatement, and this matter need not be further considered. We cannot look to recitals in the bill of exceptions upon this subject.’ ”

See also: Jones v. State, 197 Tenn. 667, 277 S.W.2d 371.

Upon the same principle and by parity of reasoning it must be obvious that we can no more look to the Bill of Exceptions to determine the content and sufficiency of a proposed.plea in abatement than we can to ascertain the action of the trial judge upon such a plea. The rigid requisites of a plea in abatement are common knowledge in the legal community. There can be no such thing as an oral plea in abatement. This concludes the matter as far as our review of it is concerned. With the record before us in this posture, obviously we are unable to review or pass upon the question raised orally before the court by Sweeney’s attorney.

Moreover, quite apart from the foregoing considerations, surely every lawyer knows that in order to sustain a plea in abatement properly prepared and filed, the truth of its factual averments must be satisfactorily established either by competent proof or by stipulation. In the record before us there is neither proof nor stipulation concerning Sweeney’s proper Christian name.

It results that both Assignments of Error must be overruled.

Upon our own initiative we have considered whether the conviction of the defendants for armed robbery, for taking the jail- or’s truck without his consent in violation of the joy-riding statute, and for felonious escape from jail, and the imposition of separate sentences for each offense as related at the outset, violated the rule proscribing the splitting of an offense into separate offenses so as to pyramid punishment.

The courts of this State have repeatedly considered similar contentions, and have promulgated the general principle that conviction for one crime does not bar a conviction for another committed during the same transaction if the crimes are distinct and separate. Thus, in State v. Ross, 72 Tenn. 442, the Court affirmed convictions for disturbing a religious assembly and for assault with intent to commit murder. In Grindstaff v. State, 172 Tenn. 77, 110 S.W.2d 309, and in Arterburn v. State, 216 Tenn. 240, 391 S.W.2d 648, the Court held that conviction for involuntary manslaughter was no bar to conviction for carrying the pistol used in the killing. In Harris v. State, 206 Tenn. 276, 332 S.W.2d 675, conviction of burglary was held not to bar conviction of simultaneous assault with intent to commit rape. The Court held in Smith v. State, 159 Tenn. 674, 21 S.W.2d 400, that the defendant was properly convicted of manslaughter by driving a vehicle in a reckless manner and also for driving while drunk at the same time, because the latter offense is not a necessary ingredient of the former, the offenses are unrelated, and the commission of the latter was complete before the fatal accident. In State v. Parker, 81 Tenn. 225, affirming a conviction for unlawfully carrying a pistol, the Court held that offense “was complete before he did the shooting with it, for which he has been convicted in that case [assault with intent to commit murder] he might be properly convicted for the previous carrying before he was discovered and confronted by the officer whom he shot.” And in Rockett v. State, Tenn.Cr.App., 475 S.W.2d 561 this Court affirmed convictions for concurrent rape and robbery of the victim.

Clearly distinguishable factually from the foregoing cases are those in which it has been held that dual convictions arising out of the same transaction are impermissible if the same criminal intent is involved in both. Patmore v. State, 152 Tenn. 281, 277 S.W. 892 (possessing a still and manufacturing whiskey, the Court noting that evidence of manufacturing would be proof of possessing the still); Dowdy v. State, 158 Tenn. 364, 13 S.W.2d 794 (public drunkenness and driving while drunk); Wilcox v. State, 74 Tenn. 571 (robbery and assault with intent to commit murder, the Court reasoning that the assault was a common and essential element in both offenses) ; Jackson v. State, 216 Tenn. 13, 390 S.W.2d 202 (possessing and selling the same liquor) ; Carter v. State, 1 Tenn.Cr.App. 545, 447 S.W.2d 115 and McAfee v. State, 3 Tenn.Cr.App. 424, 463 S.W.2d 141 (burglary and larceny at same time and place); Walton v. State, 1 Tenn.Cr.App. 668, 448 S.W.2d 690 (burglary with intent to have carnal knowledge and assault and battery with intent to rape) ; Acres v. State, Tenn., 484 S.W.2d 534 (murder conviction for killing during robbery bars robbery prosecution).

The pertinent guidelines formulated and generally followed by the courts have been well summarized by text writers. In 21 Am.Jur.2d., Criminal Law § 182, pp. 239-240, it is said:

“One test of identity of offenses is whether the same evidence is required to prove them. If the same evidence is not required, then the fact that both charges relate to, and grow out of, one transaction, does not make a single offense where two are defined by the statutes.

“If there was one act, one intent, and one volition, and the defendant has been tried on a charge based on that act, intent, and volition, no subsequent charge can be based thereon, but there is no identity of offenses if on the trial of one offense proof of some fact is required that is not necessary to be proved in the trial of the other, although some of the same acts may necessarily be proved in the trial of each.”

And in 22 C.J.S. Criminal Law § 9(1), pp. 25-27, it is said:

“The question whether a series of wrongful acts constitutes a single or multiple offense must in the last analysis be determined by the facts and circumstances of each individual case; doubt should be resolved against turning a single transaction into multiple offenses. Various tests are applied in determining whether statutes are intended to create one or more offenses. Whether a single transaction, act or series of acts constitutes two or more separate offenses is determined by whether each offense requires proof of facts or elements additional to, or other than, those involved in, or essential to, the other, or whether there are distinct elements in one offense which are not included in the other. Another general test of whether there are separate offenses or one offense is whether the evidence discloses one general intent or separate and distinct intents; this question is determined by the particular facts and circumstances of each case.

“Two or more crimes are the result of a single act or transaction when the commission of the act or the execution of the transaction brings each into existence. Separate and different acts of the same nature performed at different times generally constitute separate offenses. If the act involved in one charge is necessarily involved in the other and is merely incidental to that charge, one offense only is committed; but when one of two criminal acts committed successively is not a necessary ingredient of the other, there may be a conviction and sentence for both.”

In our judgment the facts and circumstances disclosed in this record demonstrate conclusively that the three crimes committed by these defendants involved different criminal intents, consist of different elements, could not be proved by the same set of facts, and that they were, therefore, properly convicted and sentenced for each.

Affirmed.

GALBREATH, J., concurs with opinion. O’BRIEN, J., dissents with opinion.