Collier v. StateCollier v. State
- Reporters:
- , , ,
- Before:
- Swepstonmipui
**!-• I lniií *í lili] ‘* mIíih *1«> n« I Utit‘: •) Un 1 -■ mIiiii 1” ni ,t]ue .opipipp,, páj, the Court.
i ¡oí i i i/mo.¡i‘is uní. ‘i n ¡i i/rr iki ris .,.Ifthe, .plpjptjff ,in, errpr , Qlpi;,onop„,Cp,lljer. ,3y,ag„ conylffted of¡ maliсious,.mischief was.„fiiiied„$25,0.uand ¡sentenced to the- ‘Gounty jail-ifor ¡Hi“naonthsi“ándl‘29-‘days‘;“frdm[‘which hh h‘á‘S1 aph‘eal!ed“kñdi‘‘ab‘Si‘griéd‘‘‘thlré‘ei‘6iT,,lo‘r^‘iWhi‘¿h’ -#buld ui.-.l A i l «í i¡ y*»-i. ití” j -«l I*-» G” j ‘-*» il-iuo Iwtr» l«*o1 require a review oi tne evidence. lO.‘lj. (;<• ,r,p L • > T iííoi<il-iíl.ni mhoI «•}
However., it appears that the bill of exceptions was MolTtl/IHO‘r/ll (¡11/ TH.iS (in’ H<1 I/I 1 ¡I “Qti &Pe .teí ty; ft m°m, i°,F|der,pf ¿he PlOAi‘li* ,, I,¡,*.,í,,¡ ill, ’ Q>,,..,| ,,,,-,1‘.-. (Í — <, T IO IlIO !,,,,?
h The ni‘Óti‘ó‘h‘fcíP a,ii‘é1iv‘lMaTWéi,y,‘6‘i,éfi‘,ulré‘d‘dn“Ján‘uary i ONj- Oí* lOilh, & ian t 25,1957, and defendant was granted lo’days witnm wnicli *691/t(9, .Prepare and file liis bill of еxceptions. On March 4, ¡j,9p^,ny7hich was more than 30 days after the motion fоr IfiPiN norial was overruled, the time for filing the bill of Inceptions was attempted to be extended so as to give him 15 days from March 11, 1957. The bill of excеptions was filed on March 23, 1957. Inn: !
Since the order attempting to extend the time for filing the bill of exceptions was not made within the 30 days ‘áfter the ovеrruling of the motion for new trial, the trial ‘cbrirt was without authority to extend the time and the bill-Bf exceptions can not be considered for any purрose, ‘áineé it is a nullity. Duboise v. State, 200 Tenn. 93, 290 S.W.2d 646.
’ ’1 Nilbther matter, however, needs to be adverted to. It 7a]bp¿‘ái‘á’ from the purported bill of exceptions that coun- ’ fe‘dl^f¿r the defendant and for the State orally stipulated •tlíht‘’tll‘é indictment included both “breaking and entering1’‘’“¿¿s’ well as malicious mischief. That agreement is attackеd as being invalid but we can not consider the ;,<giWS3tiQil from that point of attaсk because the agreement ■jsipefleoted only by the purported bill of exceptions which canmot be considered for any рurpose.
However, the further point is made that considering the indictmеnt alone which is part of the technicdl record, it does not include the offense of malicious mischief and would, therefore, not be sufficient to protect the defendant on a plea of former jeopardy for the same offense.
The material part of the indictment is as follows:
“Did unlawfully and feloniously break and enter a dwelling house by day, the property of Mrs. J. C. *692Payne, with the felonious intеnt to commit a felony therein, to-wit: felonious assault with an as and did therеin threaten to harm and kill persons therein and did with said ax destroy a doоr and other parts of said house and personal property thеrein.”
The two relevant statutes are T.C.A. secs. 39-4501 and 39-4504 which read as follows:
“Destroying, injuring or secreting property or papers of another — Misdemeanor.—It is declared to be a misdemeanor to maliciously destroy, injure, or secrete any goods, chattels, or valuable рapers of another. ’ ’
“Injuring or defacing buildings or fixtures — Misdemeanor. — It is declared to be a misdemeanor wantonly to injure, deface, or disfigurе any building or fixture attached thereto, or the inclosures thereof, bеlonging to the state, or any county, city, town, or to another persоn. ’ ’
It is difficult to see how one could be guilty of breaking and entering a dwelling house without also being guilty of violating T.C.A. sec. 39-4504. Therefore, this lesser offense must be included within the greater.
On the other hand, there is no necessary сonnection between T.C.A. sec. 39-4501, which relates to injury to personal property, and the offense of breaking and entering. The inclusion of this latter offense or misdemeanor in the same count in the indictment charging breaking and entering is not, however, a fatal defect but is waived by going to trial without objecting to the form of the indictment in the trial court. Scruggs v. State, 66 Tenn. 38. As to waiver and curing by verdict see generally *693Johnson v. State, 187 Tenn. 438, 215 S.W.2d 816; Driscoll v. State, 191 Tenn. 186, 232 S.W.2d 28; Jones v. State, 197 Tenn. 667, 277 S.W.2d 371; Allen v. State, 199 Tenn. 569, 288 S.W.2d 439.
Again, the brief for the State points ont that, while the indictment for malicious mischiеf must allege in substance that the acts were done maliciously or wantonly as held in State v. Click, 115 Tenn. 283, 90 S.W. 855, this Court has construed the term “feloniously”, which appears in the indictment in the instant ease, as embracing maliciously and wantonly. State v. Smith, 119 Tenn. 521, 105 S.W. 68.
The judgment below is affirmed with costs.