State v. Black

524 S.W.2d 913, 1975 Tenn. LEXIS 676

• Court: Tennessee Supreme Court
• Decided: June 16, 1975
• Status: Published

Opinions

OPINION

HARBISON, Justice.

Respondent John Edward Black was convicted in the Criminal Court of Shelby County, Tennessee of robbery by the use of a deadly weapon and of assault with intent to commit murder in the second degree. The Court of Criminal Appeals affirmed the conviction for robbery, but the majority of that Court reversed the conviction of assault with intent to commit murder. The majority opinion was to the effect that this second conviction could not stand in light of the ruling of this Court in Acres v. State, 484 S.W.2d 534 (Tenn.1972). The dissenting member of the Court felt that the case was controlled by Duchac v. State, 505 S.W.2d 237 (Tenn.1973), and that the convictions for both offenses should be affirmed.

Because in this and in several other recent cases the apparent conflict between the two decisions of this Court cited above has been emphasized, we have granted the petition for certiorari filed by the State in order to deal with the issue of convictions for multiple offenses in a single trial.

Although there were disputed issues of fact in the courts below, for purposes of our review the facts established by the record show that the respondent and two companions on the night of February 8, 1971 robbed Talmadge B. Whitehorn at gunpoint as he was leaving the Tijuana Lounge in Memphis. After taking a considerable sum of money, a watch and a ring from White-horn, respondent stepped back and shot the victim in the leg from a distance of about 12 to 18 inches away. The robbery had clearly been completed prior to the infliction of this wound.

The issue before the Court is whether these acts committed at the same time and as part of a single episode constitute a single offense or whether convictions may stand both for armed robbery and assault with intent to commit murder.

The problem presented here is actually one of identity of offenses, which is one facet of the broader subject of double jeopardy. There are numerous reported cases in this state on the general subject of former jeopardy, arising in many different contexts, and containing language which in some instances seems conflicting and difficult to reconcile. The issue presented here, as we view it, is one of identity of offenses, as stated previously, but the issue has frequently arisen not only in cases involving single trials but also in the context of successive prosecutions for offenses committed at approximately the same time, and in the context of prosecutions for offenses of a continuing nature, such as unlawful cohabitation and the like. Some aspect of double jeopardy may arise in many different types of cases, and the circumstances which give rise to the question are so varied and the fact situations so numerous that we do not deem it expedient to attempt to formulate a rule to fit all possible situations. The cases, from their nature, have to be dealt with by analysis of the particular situations as they arise. Nevertheless, some review of the holdings in the Acres and Duchac cases, and the authorities upon which they were based, seems appropriate here.

In the case of Acres v. State, 484 S.W.2d 534 (Tenn.1972), the defendant was indicted for murder in the first degree of one Charles C. Wilder, and also for armed robbery of the same individual. Defendant and another individual had escaped from the Eastern State Hospital and were hitchhiking when they were picked up by the victim.. They commandeered his automobile at gunpoint, and one of them shot the victim, who died the next day. They also robbed the victim, but from the statement of facts contained in the opinion, it is not possible to ascertain whether the robbery occurred in the course of, before or after the shooting.

This Court, in considering the question of whether or not two separate convictions could be allowed to stand, said:

“There is no doubt that these two offenses were committed at the same time and were parts of a single continuing act inspired by the same criminal intent essential to each offense, and were susceptible to but one punishment, and conviction of one is a bar to conviction of the other . . .” 484 S.W.2d 537.

But the Court also stated:

“The acts of murder and robbery are inseparable. It is only because the murder was in the course of robbery that it was first degree. If the murder had been without intent of robbery it would have been a lesser degree, because the element of intent that makes it first degree is the intent to rob.” Ibid.

The statements last quoted seemingly have reference to the provisions of T.C.A. § 39-2402, generally known as the “felony-murder” rule.

Although the indictment charged first degree murder in the common law form of averments, it is well settled in this state that under such an indictment proof is admissible that the defendant was in the perpetration of a felony when the homicide occurred. Sullivan v. State, 173 Tenn. 475, 121 S.W.2d 535 (1938).

Several members of the Court of Criminal Appeals have construed the Acres case as an example of the felony-murder rule, and, if considered in that light and confined to the felony-murder principle, the case appears to have been properly decided and is not inconsistent with the holding in Duchac, hereinafter discussed.

In support of the material first quoted above, however, the court cited a number of other Tennessee cases, which did not involve the felony-murder principle. Cited was the case of Cronan v. State, 113 Tenn. 539, 82 S.W. 477 (1904), in which the Court had held that separate convictions of burglary and larceny, growing out of the same act, could not stand. In that case the Court said:

“It is true that the defendant below might have been convicted under the indictment as framed there for feloniously breaking and entering the house referred to or for larceny. Judgment, however, could not be entered against him for both. On a conviction under the first count the crime averred in the second would be included.” 113 Tenn. at 542, 82 S.W. at 478.

The Cronan case, therefore, simply involved the issue of a lesser included offense and the familiar principle that one convicted of the higher charge could not also be convicted of a less serious but included offense. See T.C.A. §§ 40-2518, 2520; Strader v. State, 210 Tenn. 669, 362 S.W.2d 224 (1962).¹

Also cited and relied upon in the Acres case was State v. Covington, 142 Tenn. 659, 222 S.W. 1 (1920). In that case the defendant had been tried and acquitted upon a charge of illegal transportation of intoxicating beverages into and within the state. Thereafter the defendant was indicted for unlawfully receiving intoxicating liquors and unlawfully being in possession of them. To the second indictment the defendant interposed a plea of former acquittal, alleging therein that the offense for which he had been acquitted was “the identical offense” as the one subsequently being charged, and rested on “the identical facts” upon which the second indictment was based. The State moved to strike this plea, thereby admitting the truth of the factual allegations contained therein, and both the trial court and this Court held under those circumstances that the plea was well taken.

The Court said:

“The plea, which must be taken as true, says that this was one transaction, so that if the state were permitted to split this one transaction into three parts and charge the defendant with receiving in one indictment — possessing in the second, and transporting in the third — and the defendant should be found guilty in each case, then the court could impose a fine of $500, and an imprisonment of six months in each case. While the statute only contemplated a maximum fine of $500, and an imprisonment of six months for the entire transaction.” 142 Tenn. at 662, 222 S.W. at 2.

It is apparent that that ease did not present the same situation as was presented in either the Acres or Duchac cases, or as is presented in the present case — that is, a conviction for multiple offenses in a single trial. The case did involve a principle of double jeopardy, which the Court, in quoting from 16 C.J. 272, stated as follows:

“ ‘There is also another rule which declares that, if the prosecution under the second indictment involves the same transaction which was referred to in the former indictment, and it was or properly might have been, the subject of investigation under that indictment, an acquittal or a conviction under the former indictment would be a bar to a prosecution under the last indictment. This rule is sometimes called the “same transaction test.” ’ ” 142 Tenn. at 663, 222 S.W. at 2.

Also cited and relied upon in Acres was the case of Patmore v. State, 152 Tenn. 281, 277 S.W. 892 (1925). The defendant in that ease was convicted under an indictment with two counts charging possession of a still and also the unlawful manufacture of whiskey. The Court stated that under some circumstances where it was clear that the two offenses were wholly separate and distinct, it would be proper to have two convictions and two punishments. The Court stated, however:

“Our own cases appear to prohibit the practice where the offenses grow out of one transaction and involve but one criminal intent.” 152 Tenn. at 284, 277 S.W. at 893.

The Court held that the two offenses in that case did grow out of the same transaction and that evidence of the manufacturing afforded proof of the possession. Accordingly the Court permitted only the higher of the two sentences to stand.

Probably one of the leading cases in Tennessee on the entire subject, and one which was cited in the Acres case, is the case of Dowdy v. State, 158 Tenn. 364, 13 S.W.2d 794 (1928). Defendant in that case was convicted for public drunkenness, and subsequently was indicted for driving an automobile on the public highway while intoxicated. To the latter charge, he filed a plea of former conviction, alleging that the prior indictment was “based upon the identical facts, and dependent upon the same transaction as that on which the present indictment depends.”

This Court, reversing the trial court, held that the two convictions could not stand under those circumstances. The Court said:

“General rules deducible from principle and authority appear to be:

“1. Where two or more offenses of the same nature are by statute carved out of the same transaction, and are properly the subject of a single investigation, an acquittal or conviction for one of the several offenses bars subsequent prosecution for the others.

“2. When the facts constitute but one offense, though it may be susceptible of division into parts, as for stealing several articles from the same person at the same time, conviction for stealing one of the articles will bar subsequent prosecution for stealing the others.

“3. When the facts constitute two or more offenses, wherein the lesser offense is necessarily involved in the greater . and when the facts necessary to convict on a second prosecution would necessarily have convicted on the first, then the first prosecution to a final judgment will be a bar to the second.

“4. But when the same facts constitute two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second, although the offenses were both committed at the same time and by the same act.” 158 Tenn. at 366, 13 S.W.2d at 794.

The Court noted that great difficulty had been experienced by the courts in applying the first and the fourth of these rules, and cited extreme views which have been taken by courts in other jurisdictions. The Court then said:

“But the courts of this state, observing the spirit and the letter of the law . hold that acquittal or conviction in one of several related offenses resulting from the same transaction bars subsequent prosecution for the others .

“It may be observed from a review of foregoing cases that the rule does not extend to unrelated substantive offenses arising out of the same transaction. The distinction is made in State v. Ross (72 Tenn. 442 (1880)), where it was held that conviction for disturbing public worship by shooting a pistol in a church did not bar a subsequent prosecution for assault with intent to commit murder by the act of shooting.” 158 Tenn. at 367-368, 13 S.W.2d at 795.

The rules formulated in the Dowdy case have been cited and applied by the courts of this state in many subsequent cases. In the case of English v. State, 219 Tenn. 568, 411 S.W.2d 702 (1966), which was also cited in Acres, the defendants had been convicted of larceny from the person of a victim. They were simultaneously convicted for gaming. The conduct of the defendants was to force their victim to play cards for money and to remove money from his billfold to make bets. The Court held that the gaming conviction could not stand. It said:

“Here, plainly there is one set of facts. These fellows were standing around in this place playing cards and while doing so they manage to steal this money from the prosecutor, and this is all that there is in this record to show that it was a gaming house or anything of the kind to violate any of the statutes with reference to gaming as above set out. It seems to us that the same acts are pyramided here to make two offenses.” 219 Tenn. at 578-579, 411 S.W.2d at 707.

Quoting from the Dowdy case, the Court said:

“ ‘The transaction was the same; the witnesses were the same. Both acts could have been presented in a single indictment of two counts, and, if it had been done, under our authorities there could have been but one punishment.’ ” 219 Tenn. at 579, 411 S.W.2d at 707.

The Court accordingly held that under these particular circumstances the conviction for gaming could not stand.

In the course of its opinion, however, in the English case, the Court said:

“Of course, in each of these cases it is necessary for the Court to carefully consider the facts of each particular case as to whether or not the conviction of one offense is a bar to the conviction for what is charged in the other.” 219 Tenn. at 578, 411 S.W.2d at 707.

Another case relied upon in Acres is Walton v. State, 1 Tenn.Cr.App. 668, 448 S.W.2d 690 (1969), in which the defendants were convicted of assault and battery with intent to rape and also of burglary with intent to rape. Under the particular facts of that case, the Court reversed the latter conviction stating:

“We have considered carefully the facts of the two cases now before us, and we feel that the conviction of one is a bar to the conviction of the other. We find that these offenses were committed at the same time and are parts of a single continuing criminal act, inspired by the same criminal intent which is essential to each offense, and that they are susceptible to but one punishment.” 1 Tenn.Cr.App. at 680—681, 448 S.W.2d at 696.

The Court cited but distinguished the case of Harris v. State, 206 Tenn. 276, 332 S.W.2d 675 (1960), which was later relied upon by this Court in its opinion in the Duchac case, infra. In the Harris case, the defendant broke into the home of an elderly woman in the middle of the night looking for money. Later he formed an intent to commit rape and attempted to do so. He was prosecuted and convicted for the offense of burglary, and in a second prosecution was tried and convicted of assault and battery with intent to commit rape. This Court permitted both convictions to stand, despite a double jeopardy challenge, quoting from Underhill, Criminal Evidence (3rd ed.), §§ 315-318, as follows:

«i* * * jf the same acts constitute two different crimes, conviction of one is not a bar to conviction of the other * * The identity of the former offense with the one charged depends on whether the defendant was put in jeopardy for the identical crime and not whether the defendant had been tried for the same act.’ ” 206 Tenn. at 286, 332 S.W.2d at 680.

It was the latter principle which was emphasized by the Court in the case of Duchac v. State, 505 S.W.2d 237 (1973). In that ease defendants were jointly tried on two separate indictments. They were convicted of third degree burglary and also of carrying burglarious instruments. Analyzing the statutory definitions of the two offenses, this Court held that there were two separate offenses committed, and that different proof was required to establish them. It accordingly sustained both convictions under the particular facts and circumstances of that case. In the course of its opinion, the Court stated that the defendants contended that the two convictions could not stand because they “arose out of the same transaction and because the same proof made out both offenses.” Responding to this contention the Court said:

“However, the majority rule and clearly the rule in Tennessee is that the ‘same transaction’ test is not the law, rather the proper test is directed to the identity of the offense and has been called the ‘same evidence’ test. See e. g. Harris v. State, 206 Tenn. 276, 332 S.W.2d 675 (1960); Eager v. State, 205 Tenn. 156, 325 S.W.2d 815 (1959). Simply stated the test is that:

“ ‘ . . . A defendant has been in jeopardy if on the first charge he could have been convicted of the offense charged in the second proceeding.

“ ‘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.’ 21 Am.Jur.2d, Criminal Law, § 82.” 505 S.W.2d at 239.

Cited in the Duchac opinion was the case of Eager v. State, 205 Tenn. 156, 325 S.W.2d 815 (1959), wherein it was held that an acquittal of failure to stop an automobile after an accident did not subsequently bar a prosecution of the defendants for involuntary manslaughter of a pedestrian struck by their automobile.

In the course of the Eager opinion, the Court said:

“The question which has been considered by the Courts under such situations, and the Courts have concluded, is that the offenses are not the same if upon the trial of one, proof of an additional fact is required, which is not necessary to be proved in the trial of the other although some of the same acts may be necessary to be proved in the trial of each. In other words it seems that the double jeopardy proposition is directed to the identify of the offense and not to the act.” 205 Tenn. at 165-166, 325 S.W.2d at 820.

It is admittedly difficult to reconcile the language and the holdings of all of the foregoing cases, some of which arose out of successive prosecutions, and others out of multiple indictments or multi-count indictments.

It is the opinion of this Court, however, that the principles formulated in the Dowdy case, supra, and reaffirmed in the Duchac case are correct. We do not find it necessary to overrule the Acres case, but we are not inclined to extend its application. As previously pointed out, if it be regarded simply as a “felony-murder” case, the conclusion reached may be considered correct, but some of the statements contained in Acres cannot be reconciled with the cases which were cited in that opinion. Indeed, the portion of the opinion referring to a “single continuing act” appears to be dictum and wholly unnecessary to the decision in light of the felony-murder principle.

It is also somewhat difficult to agree with the actual result reached in the Du-chac case, because ordinarily the offense of carrying burglarious instruments would be a lesser included offense to the charge of burglary. This was recognized by the Court in the Duchac case, however, when the Court stated, after analyzing the statutory definitions of the two offenses involved:

“In addition, none of the evidence required to prove carrying burglarious instruments is necessary to prove commission of third degree burglary. Therefore, the mere fact that both offenses grew out of a single criminal episode does not make them a single offense in this particular case. This is not to say that under different facts and circumstances that a third degree burglary conviction could not bar a conviction for carrying burglarious instruments. The peculiar facts of each case must be examined to properly ascertain whether the conviction of one would bar the other.” 505 S.W.2d at 240.

We do not find the formulation of the various “tests” into catch words, such as “same transaction” or “same evidence” to be particularly helpful. As previously stated, each case requires close and careful analysis of the offenses involved, the statutory definitions of the crimes, the legislative intent and the particular facts and circumstances.

In the case of Blockburger v. U. S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), in sustaining multiple convictions in a single trial, the Court said:

“Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” 284 U.S. at 304, 52 S.Ct. at 182.

In the very recent case of Iannelli v. United States, - U.S. -, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), the United States Supreme Court affirmed the convictions of eight defendants who were charged both with conspiring to violate a federal gambling statute and with the actual violation of that statute. Both convictions were permitted to stand, the majority of the Court concluding that this result was consistent with the legislative history of the statute involved. In a footnote to the opinion, the majority observed:

“The test articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), serves a generally similar function of identifying congressional intent to impose separate sanctions for multiple offenses arising in the course of a single act or transaction. In determining whether separate punishment might be imposed, Bloekburger requires that courts examine the offenses to ascertain ‘whether each provision requires proof of a fact that the other does not.’ Id., at 304, 52 S.Ct. [180] at 182. As Bloekburger and other decisions applying its principle reveal . . . the Court’s application of the test focuses on the statutory elements of the offense.” (Emphasis supplied). 95 S.Ct. at 1293, 43 L.Ed.2d at 627.

In its Proposed Official Draft of the Model Penal Code, the American Law Institute suggested guidelines at Section 1.07 to govern the method of prosecution when criminal conduct constitutes more than one offense. At Section 1.09(l)(e), the Institute expressly, both in the text and in the editorial comment, approved the Bloekburger rule as one of the criteria to determine whether a former prosecution operates to bar a second.

In 1 Wharton, Criminal Law and Procedure, §§ 144-145 (Anderson, 1957), the various tests or rules to determine identity of offenses are stated, in terms similar to those quoted from the cases cited above, including the Bloekburger case.

In the present case, it is our opinion that there were two separate and distinct offenses committed, that of armed robbery and that of assault with intent to commit murder in the second degree. Although they occurred at substantially the same time and in the course of a single “criminal episode”, or “transaction”, under the test of the Bloekburger case, supra, and the principles announced in Duchae, they are not identical offenses. The same evidence was not required to prove the armed robbery as was required to prove the assault with intent to murder. The statutory elements of the two offenses are different, and neither offense is included within the other. Both convictions can clearly stand, and the case is not controlled by Acres v. State. We limit the holding in the latter case to its particular facts.

The judgment of the Court of Criminal Appeals is reversed and the judgment of the trial court is reinstated, at the cost of the respondent.

FONES, C. J., and COOPER and BROCK, JJ., concur. HENRY, J., dissents.

1 . Accord: Brumley v. State, 4 Tenn.Cr.App.606, 475 S.W.2d 180 (1971); Carter v. State, 1 Tenn.Cr.App. 545, 447 S.W.2d 115 (1969).