limiting Rhea to a ruling on notice under the Habitual Criminal ActSummary of this case from State v. Wyrick
Rehearing Denied April 9, 1958.
Henry C. Foutch, Asst. Atty. Gen., for respondent-appellant.
John J. Hooker, Jr., Hooker, Keeble, Dodsons&sHarris, Nashville, James F. Neal and Turneys&sTurney, Washington, D. C., for petitioners-appellees.
The separate habeas corpus petitions of Boyd and of Winslow were consolidated for hearing because they present the same question, to wit, whether the statute under which each is being held in prison is unconstitutional, to wit, the Tennessee Habitual Criminal Statute, or whether the judgment, by reason of the punishment assessed under this statute, is void to that extent for want of jurisdiction to pronounce. This appeal is by the Warden of the Tennessee Penitentiary from the judgment sustaining each habeas corpus petition. The merits of the question must, of course, be determined from the face of the record in the case in which each petitioner was convicted and sentenced.
That record discloses that Boyd's indictment returned on October 6, 1939 charged him with robbery. The indictment contains this further allegation:
'And the Grand Jurors, aforesaid, upon their oath, do further present that Charles Boyd is a habitual criminal in that he has been convicted of three crimes, each of said crimes being of a higher grade than Petit Larceny, and two of same being infamous crimes, said convictions being for separate offenses committed at different times and on separate occasions.'
This Court reversed the first trial conviction. On the second trial, the verdict was that 'the defendant is guilty as charged in the indictment.' Judgment following the overruling of his motion for a new trial sentenced Boyd to 'the State Penitentiary therein to be confined at hard labor for the balance of his natural life'. His appeal therefrom to this Court was rejected. It is by reason of this sentence that he is now being subjected to the imprisonment of which his petition complains.
Winslow's indictment, returned on January 12, 1943, charged him with an assault to commit murder in the first degree. That indictment contained this further allegation:
'And the Grand Jurors, upon their oath, do further present that the said Chester Elmo Winslow is a habitual criminal, in that he has been convicted of three crimes, each of said crimes being of a higher grade than Petit Larceny and all three of said crimes being infamous crimes, said convictions being for separate offenses, committed at different times and on separate occasions.'
Upon his trial on February 2, 1943 the jury's verdict was that 'the defendant is guilty as charged in the indictment'. He was thereupon sentenced to confinement in the penitentiary 'at hard labor for the balance of his natural life'. It does not appear that he made any motion for a new trial. It is upon this conviction that Winslow is now being held by the Warden.
The record in each case discloses that each petitioner plead not guilty, and that each was represented upon the trial of his case by an attorney.
The term of imprisonment for robbery and for assault with intent to commit murder in the first degree, disassociated with the Habitual Criminal Statute, is for a less time than that already served by Boyd and Winslow. It is by reason of the Tennessee Habitual Criminal Statute as then enacted that each of these men was sentenced to imprisonment 'for the balance of his natural life'. If that part of this statute under which these men were adjudged habitual criminals with punishment fixed accordingly is unconstitutional, then the Trial Court properly sustained the petitions.
The Habitual Criminal Statute in question was enacted by Chapter 22 of the Public Acts of 1939. Because of the fact that the last official code of Tennessee was the 1932 Code this Act did not appear in the Official Code then in effect. It does appear in the Supplement to Williams unofficial code at Sections 11863.1 to 11863.8. The Act, as amended in 1950, is carried at Section 40-2801 et seq., T.C.A. But only its constitutional status prior to this 1950 amendment is pertinent to the decision of the issues made by the habeas corpus petitions.
This 1939 statute first provides that persons convicted a specified number of times for specified felonies 'shall be considered, for the purposes of this Act, and is hereby declared to be an habitual criminal'.
The Act provides that one convicted for the specified number of times of felonies which fall within the enumerated class shall 'be sentenced as an habitual criminal, and his punishment shall be fixed at life in the penitentiary, and such offender shall not be eligible to parole'. The Governor's pardoning power is not, however, impaired. It is made the function of the jury trying defendant for the principal felony charged in the indictment to find whether defendant is an habitual criminal, if he be found guilty of the principal felony. This, of course, requires submission to it of evidence of the commission of the requisite number of the felonies specified in the habitual criminal statute. The statute declares the record of previous convictions competent evidence.
Section 4 of the Act provides that an indictment which charges a defendant with one of the felonies in the enumerated class may or may not charge such defendant with being an habitual criminal
'but in either case, shall, upon conviction, be sentenced and punished as an habitual criminal, as in this act provided.'
Section 5 is as follows:
'An indictment or presentment which charges a person who is an habitual criminal, as defined in Section 1 hereof, with the commission of any felony as defined * * * or a felony, conviction for which will render him infamous, or for which the maximum punishment is death, may or may not also charge that he is such habitual criminal, but in either case the felony charge shall be deemed and construed as necessarily including and charging such person with being an habitual criminal, and no such indictment or presentment shall be subject to any objection for failure to specifically include a charge that such person is an habitual criminal.'
Responsive to a challenge of the validity of the foregoing quoted provisions of Sections 4 and 5, this Court in McCummings v. State, 175 Tenn. 309, 134 S.W.2d 151, 153, adjudged such provision of Sections 4 and 5 constitutional. The decision did suggest, in order to avoid injustice, 'the practice of giving him notice in the indictment, or otherwise, as early as possible, so as to enable him to prepare to meet the charge of being an habitual criminal.' The adjudication in McCummings v. State, supra, as to the constitutionality of the foregoing provisions of the Act was adhered to by this Court in State ex rel. Grandstaff v. Gore, 182 Tenn. 94, 184 S.W.2d 366, and Brown v. State, 186 Tenn. 378, 210 S.W.2d 670.
During the period in which the Courts of Tennessee considered the foregoing provisions of Sections 4 and 5 constitutional a man named Rhea was indicted for one of the felonies enumerated in our Habitual Criminal Statute. But there was not followed the recommendation made by this Court in the McCummings case, supra, that if the State expected to invoke the Habitual Criminal Statute, the defendant be given 'notice in the indictment, or otherwise' to that effect, so that he might prepare his defense. Accordingly, Rhea in 1955 filed his petition for habeas corpus in the Federal District Court for the Middle District of Tennessee, therein charging that the above quoted provisions of Sections 4 and 5 violated the due process clause of the 14th Amendment to the Federal Constitution, in that it provided that defendant need not be given notice, and that he was not, in fact, given notice. The District Judge sustained the petition. That Judge's holding was upheld by the United States Court of Appeals for the Sixth Circuit, 238 F.2d 850, and certiorari was denied by the United States Supreme Court. The style of the case is Rhea v. Edwards. The opinion of the District Judge is reported in D.C., 136 F.Supp. 671.
While the Rhea case was pending in the Federal Court on appeal there came to this Court the case of James E. Bailey v. State, Knox Criminal, wherein was the same complaint as that made and sustained in the Rhea case. This Court delayed a decision of Bailey's appeal until after the Federal Courts had disposed of the Rhea case. Then, in accordance with the adjudication of the Rhea case, Bailey's contention was sustained. That contention is stated in the unreported opinion as follows: 'Defendant contends that he is entitled to a reversal of this case on the ground that he had no written notice that he would be tried as a habitual criminal'.
It is important to note that the case at bar differs from the Rhea and Bailey cases, supra, in that Rhea and Bailey were given no notice that the Habitual Criminal Statute would be invoked. Boyd and Winslow were given express notice in the indictment. So, the Court was not concerned in either the Boyd case or the Winslow case with any provision of the Tennessee Habitual Criminal Statute other than those provisions thereof proposing to dispense with the necessity of giving defendant notice that the Habitual Criminal Statute would be applied if defendant should be found guilty of the principal offense charged, and if further found to be an habitual criminal.
The insistence made, however, in behalf of Boyd and Winslow is that the Rhea and Bailey cases must control the decision in the cases at bar because, so they insist, in the Rhea and Bailey cases the respective Courts adjudged the entire Habitual Criminal Statute unconstitutional. In neither the Rhea nor Bailey case did the Courts consider the severability (elision) clause in the Habitual Criminal Statute. It probably was inadvertently not called to their attention. However that may be, in so far as either of these cases adjudged invalidity of the statute beyond the purported elimination of notice clause therein the adjudication was obiter dictum. Staten v. State, 191 Tenn. 157, 232 S.W.2d 18. Obiter dictum does not control the decision in a subsequent suit when the point which was obiter dictum is, in a subsequent case, presented for decision. State ex rel. Lea v. Brown, 166 Tenn. 669, 678, 64 S.W.2d 841, 91 A.L.R. 1246. Statements contained in an opinion are authority in subsequent cases 'on only the point in judgment arising in the particular case before the Court.' Clark v. Lary, 35 Tenn. 77, 80.
It follows that neither the Rhea case nor the Bailey case requires this Court to consider unconstitutional the entire Habitual Criminal Statute unless the unconstitutional provision purporting to eliminate the necessity of notice renders the entire Habitual Criminal Statute void. This status of the case at bar requires now a consideration of the rule of elision.
The law applicable to the rule of elision was reviewed in some detail in Davidson County v. Elrod, 191 Tenn. 109, 232 S.W.2d 1. There appears in that decision this statement, 191 Tenn. at page 112, 232 S.W.2d at page 2:
'Perhaps the clearest statement of the rule is that if it is made to appear from the face of the statute that the Legislature would have enacted it with the objectionable features omitted, then those portions of the statute which are not objectionable will be held valid and enforceable, State ex rel. Bond v. Taylor, 119 Tenn. 229, 257, 104 S.W. 242, provided, of course, there is left enough of the Act for a complete law capable of enforcement and fairly answering the object of its passage. Reelfoot Lake Levee District v. Dawson, supra [97 Tenn. 151, 36 S.W. 1041, 34 L.R.A. 725].'
The last section (Section 8) of the 1939 Habitual Criminal Statute expressly declares that the provisions of the Act shall be deemed severable, and that if any of its provisions be adjudged unconstitutional 'the remainder of this Act shall continue in full force and effect'. It, therefore, does appear affirmatively upon the face of this statute that the legislature would have enacted it had there been omitted from it at the time of its enactment the provision purporting to eliminate the necessity of notice that the Habitual Criminal Statute would be invoked.
After elision of the elimination of notice provision there is left of this 1939 Statute (1) a declaration of what shall constitute an habitual criminal, and (2) an increase in punishment upon conviction of a felony falling within the habitual criminal classification provided the defendant is found by the jury trying that case to be an habitual criminal, and (3) notice in the indictment or presentment that the Habitual Criminal Statute would be invoked by the State in the event of the conviction of the felony for which the defendant is primarily on trial, and (4) the necessity of proof that the defendant has been convicted of the required number of felonies of the class specified in the Habitual Criminal Statute.
Thus it is that after the elision of the objectionable features mentioned 'there is left enough of the Act for a complete law capable of enforcement'. Therefore, the final question on this phase of the case is whether this statute after the elision is one 'fairly answering the object of its passage'.
In State ex rel. Grandstaff v. Gore, supra [182 Tenn. 94, 184 S.W.2d 369], this Court declared that the purpose of the Habitual Criminal Statute is 'to remove from society a class of confirmed criminals whose depredations have proven to be limited only by their opportunities'. In McCummings v. State, supra [175 Tenn. 309, 134 S.W.2d 152], the object of the legislation is stated as follows: 'Such a criminal is a menace to society and should be confined to prevent the committal of other, and probably more serious, crimes.' This Habitual Criminal Statute, after the elision of the objectionable features mentioned (being the elimination of the necessity of notice provisions) will clearly serve to a substantial extent the purpose of its enactment as declared by these decisions.
It is the conclusion of this Court that Chapter 22 of the Public Acts of 1939, being the Habitual Criminal Statute of Tennessee, after the elision of the provisions with reference to eliminating notice is a constitutional enactment which does not violate the due process clause, or any other clause, of the State or Federal Constitution. Being constitutional, no error was committed in invoking it against Boyd and Winslow upon their respective convictions of the principal felony charged in the indictment.
As heretofore noted, the respective indictments against Boyd and Winslow charged in some detail the status of each as an habitual criminal. Boyd's indictment alleged his conviction of three crimes falling within the category. The indictment against Winslow made the same charge. Both indictments alleged that the previous convictions were 'for separate offenses, committed at different times and on separate occasions'. Neither of these indictments further allege the facts of the prior conviction.
Based upon this status of the indictment, the final contention made in behalf of Boyd and Winslow is that the Trial Court in each of the criminal cases was without jurisdiction to assess the punishment in accordance with the Habitual Criminal Statute because, so they insist, 'the indictment must contain an allegation setting out the facts of the prior convictions.'
In considering this insistence, it is well to recall that the allegation in the indictment as to each of these men being an habitual criminal is an allegation only as to his status in society. Logically, such an allegation would not seem to require the allegation of the details, though, of course, necessary details must be proved if the increased punishment because of his status be inflicted.
If it be assumed that the indictments here were faulty in their failure to allege the 'facts of the prior convictions' (and many jurisdictions so hold); nevertheless, it was no more than a defective allegation in that it was too meager, rather than a void one. In that plight of the matter, it was the duty of the defendants, who were represented by counsel, if they desired to raise that question, to have made a motion to quash, wherein the procedure would have been, had the motion been sustained, to refer the indictment back to the grand jury, and the defendant held in the meantime. But instead of making such motion, each of these men plead not guilty, and went to trial thereon. In that situation they should not be heard to complain as to that alleged effect.
In discussing the rule applicable, this Court in Pope v. State, 149 Tenn. 176, 179, 258 S.W. 775, 776, said:
'* * * the rule of law, which we will now refer to, was not invoked, and that is that where the defendant pleads to the indictment and goes to trial upon the merits, the defect is cured by the verdict.' (Citing cases.)
'The record discloses that upon hearing the indictment read the defendant plead that he was not guilty. There are a number of decisions in our State holding that 'where the defendant pleads to the indictment and goes to trial upon the merits, the defect is cured by the verdict." (Citing cases.)
' a matter either of form or of substance is omitted from the allegation, yet if, under the pleadings, the proof of it was essential to the findings, it must be presumed, after verdict, to have been proved, and the omission is cured by the verdict.' To the same effect is Allen v. State, 199 Tenn. 569, 288 S.W.2d 439.
A somewhat analogous situation arose in the Texas case of Ex parte Brown, 145 Tex.Cr.R. 39, 165 S.W.2d 718, 719, 721. That Court in disposing of the point here under consideration said this:
'It is further contended that the allegations in the indictment which set out alleged previous convictions are insufficient because they fail to allege that the convictions were for offenses committed prior to the respective subsequent convictions alleged. Such contention would have been tenable if timely made, but the defendant would be required to reach such by an attack in the trial of said cause by a motion to quash, and the question may not be asserted in the manner attempted. (Citing cases.)
'It, therefore, appears that the relator is not entitled to the relief sought in his application and the same is accordingly denied and no writ will issue.'
The judgment of the Circuit Court will be reversed. The habeas corpus petition of Boyd and Winslow, respectively, will be overruled and dismissed.