*1 233 743; Pryоr State, 217 v. S.W.2d The the indictment. necessary part of has failed 695, Defendant 700. 400 S.W.2d if the offense felony the result is word carry this burden. has indictment committed. the with all of charged the defendant the jury found The fact that the statutory definition.” the acts within of lesser guilty of a included encompasses error No. Assignment of pen charged, and fixed than that fense motion grounds defendant’s first 3 prescribed the limits alty well within trial, attack two which new the first demonstrates offense, adequately evidence, sufficiency of weight prejudice passion, assignment charging passion, prejudice and the third caprice is merit. without fix- jury caprice part on error are overruled All years the Peni- penalty three ing the af- the triаl court tentiary. firmed. entering into a detailed discus- Without is to commended Appointed counsel evidence, testimony sion of the representation diligent for his able coupled circumstances witnesses in this cause. the defendant left- overwhelming. The defendant handed. The location of wound story. body The inci-
victim’s belies DWYER, JJ„ concur. OLIVER man- dent сould have occurred in the ner which related. jury chose not him. believe State,
The law well settled in has been cases, reiterated in numerous jury, approved verdict trial judge, testimony accredits the George CURETON, Petitioner, the witnesses all State and resolves v. theory conflicts in favor of the pre Warden,
State. Such a verdict TOLLETT, Respоndent. removes Lewis S. sumption of the innocence accused Appeals of of Criminal Tennessee. Court which stands as a witness for until he him Sept. 15, 1971. convicted, a presumption and raises guilt upon appeal, and he bur has the Supreme Certiorari Denied upon appeal den showing the evi 7, Feb. 1972. preponderates dence against the verdict and in Gulley favor of his v. innocence. State, 186; 219 Tenn. 407 S.W.2d Ja State,
mison v. 220 Tenn. 416 S.W.2d
768; State, Webster Tenn.Cr.App., 799; State,
S.W.2d Brown v. Tenn.Cr. App., State, 485; 441 S.W.2d Palmer v. Tenn.Cr.App., 128; 435 S.W.2d Morelock State, Tenn.Cr.App.,
A conviction will not be reversed on facts unless it is shown the defendant that the preponderates against
verdict and in favor of his innocence.
McBee v. 213 Tenn. 173; Schweizer 217 Tenn. *2 Knoxville, Cary, petitioner. H.
John Gen., Atty. Pack, David M. Thomas E. Fox, Atty. Gen., Deputy Nashville, spondent.
OPINION
O’BRIEN, Judge. Petitioner, George Cureton, appeals from dismissal of his for Post-Convic- tion evidentiary hearing. Relief without an
Petitioner was convicted of armed rob- years bery and sentenced Pen- to ten itentiary. appeal An was effected .and the affirmed this court. lower avers:
(1) That
rights
violated,
being
have and are
process”
is denied
he
“due
“equal protectiоn”
in that
law
legal
complete
he
denied
negli-
due to the
gence
Agent.
tran-
being
script
exceptions
bill
incomplete
it did not contain
because
disclose whether
not
The record does
prosecu-
closing argument of the
privately retained.
not
this counsel
prejudicial
contained
tion which
not
it does
purpose
aрpeal
For
supported
statements
his counsel
Had
difference.
these make
testimony,
therefore
have
he
appointed,
would
been court
consid-
prejudicial remarks were
representation than
*3
to no better
entitled
court.
appellate
the
ered
otherwise.
to obtain
might have been able
satisfy
transcript did nоt
(2) That the
trial,
legal situa-
many
a
In the course of
--,
TCA
requirements of
the
many
present choices
tions occur which
states;
must
transcript
trial
which
which
lawyer must decide
directions. The
That
closing arguments.
include
be
required to
He is not
course to take.
prejudi-
the adverse inferences
Leighton v.
ex rel.
State
infallible. See
during
by the State
cial misсonduct
Henderson, Tenn.Crim.App., inflame
serve to
closing arguments
to
the failure
jury. And that
the
appellate review
complete
a
receive
be
any
negligence
act of
Nor can
to
proceedings
trial
was due
the
of
Clerk or
to the Criminal
attributed
reporter
the court
negligence
the
of
petitioner’s original
at
Reрorter
the Court
preparing
clerk in
the tran-
or court
petition
indication
trial. There is no
script
exceptions.
of
bill
and/or
so,
that trial. Even
indigent at
er was
adequate
any more
be
to
entitled
would
made,
assignments of error are
Seven
an in
than
appellate
and effective
error
six
attack
which
his own
provide
funds to
with the
dividual
аpplication
Washington, cit
Draper
transcript.
In
Act,
Secs.
Post-Conviction Procedure
Illinois,
S.Ct.
ing
U.S.
Griffin v.
through
assign-
2nd
40-3824. The
Su
States
the United
100 L.Ed.
alleges
abridgment
pe-
ment
of error
an
preme Court said:
rights,
titioner’s
and viola-
process
tion
under the 14th Amend-
due
“.Moreover,
part or all of
Constitution,
ment to
to
attributable
in certain
transcript
stenographic
appoint
refusing
trial
error
court’s
to considera-
germane
will not
cases
be
counsel
below.
for
the court
will
appeal,
a State
tion of the
unneces-
expend
funds
required
its
be
appar-
A reading of this record makes it
If,
in-
for
sarily in such circumstances.
assumptions
ent
that several erroneous
stance,
only to
urged relate
points
require-
regarding
have been
made
or the suffi-
the statute
validity of
ments,
procedure,
application of
con-
upon which
ciency of the indictment
Act.
Tennessee Post-Conviction
transcript
predicated, the
viction
instance,
nothing
first
there is
If
provided.
not be
irrelevant and need
this record
con-
to indicate
rul-
only to
go
error
viction
was void
voidable because
sufficiency,
or to
ings
any way
guar-
right
well
provided might
transcript
anteed
Constitution
this State
to such
portions relevant
to the
limited
the Constitution of
the United States.
issue,
to this kind
as
issues. Even
(TCA
40-3805.)
Sec.
a
however,
unnecessary to afford
it is
pertaining
proceedings
record
point
aon
proof
alleged failure
an
simple
that the bill of
of law
as matter
is irrelevant
a
argu
exceptions
closing
which
did not include the
which
crime
elements of
certainly not
in toto is
ment of counsel
In the ex-
has been convicted.
found
defendant
abridgment.
such an
court
appellant
an
fact that
given, the
origi
amples
represented
may
to waste
choоse
funds
with
competent counsel.
nal
able and
money by unnecessarily
courts,
including
practice
“In most federal
it is the
transcript
appoint
record all
does not
post-conviction pro
counsel in
ceedings
mean that the
must
its funds
post-
State
waste
after
by providing
unnecessary for ad-
passes
judicial
what is
conviction
initial
relief
equate appellate
review. In all cases
evaluation and the court has determined
duty
provide
indi-
presented
the State is to
that issues
an
calling
gent
adequate
appel-
an
evidentiary
Taylor Peg
effective
hearing.
g.,B.
appellants
given
elow,
late review as that
4th
U.S.
83 S.Ct.
3818.) may be until postponed action Judicial sustained find this contention do not We respondent response has filed a record con- The technical the record. reply. has had time to comprehensive “Order Dis- full
tains a of the District assistance Petition”, setting findings missing forth his very may be valuable law. We are of fact and conclusions of judge, understanding na- un- finding of the trial court bound *5 contentions, ture merit of the but preponderates against less the evidence bringing together in the files and also finding. Mitchell See necessary in the It is records cаse. Crim.App., files and records pleadings, are before the court conclu- case which assign- disposed previously have of We sively show that the is entitled preliminary 5 in our ment of error No. may no the trial court relief before appellant’s right to a marks relative to an record petition order the dismissed. The transcript. assignment full is оver- con- judge bases his on which ruled. clusions law will facilitate of Walker, (Opinion Judge review.” Assignment No. 6 error in Tennes- Lee Brown Charles petition filing dismissing without see, 1969.) responsive pleading by the District filing by the Attorney and without the Dis foregoing statement to consider We Attorney parts the records of the trict requirements pertinent analysis be transcripts question оr material Act of the Post-Conviction have held that petition. raised in the We courts as a it we commend no question was in the raised guideline. previously had deter which either mined, the is failure to raise waived imposed on The enormous burden original appeal; con or that sue provisions of TCA Sec. by the judge con stituted exer- great rеquires caution 40-3809 trial court rights, therefore the stitutional functions, statute and the of these cise properly under dismissed complete correla- be should considered provisions of TCA Sec. 40-3809. provisions of Sec. tion with the and 40-3815. held previously
This court has that: purpose of enacted for Act was capabil- the limited pleading “Because of remedy and expeditious an expedient providing lay applicants, ities of is not it protection action, assure appli- course for courts to undertake to evaluate petitioners, and rights to pro such persons. cations filed se airing petitions. meritorious Adher- Criminal # decided October ence to the admonitiоn set forth in Charles (both opinions unpublished). See also: Brown, Lee supra, wll serve to terminate Green v. Tenn.Crim.App., 450 S.W. litigation and avoid requirement 2d 27 (concurring opinion). consideration of second appli- or successive This Court has previously held that vari- cations for relief; fair, similar providing a ous of the Post-Conviction Pro- system effectivе review meritorious cedure Act are mandatory. Brown v. cases, and greater providing a likelihood of State, Tenn.Crim.App., it achieving finality in Post-Conviction cases was said: by greater clarity of the trial court records. “In prescribing the duties of clerk (T.C.A. 40-3806), the District Attor- § We do not find error in the proceedings ney (T.C.A. 40-3814), § below and the judgment of the trial court trial court (T.C.A. 40-3818), is affirmed. above-quoted provisions Post-Con- Act, Legislature viction Procedure DWYER, OLIVER and JJ„ concur. each instance use of the word ‘shall’ clearly indicated its intention to make OLIVER, Judge (concurring). specified respective duties those mandatory, officials merely and not I concur the result reached the ma- directory discrеtionary. Without the jority. However, it is considered that the participation directed of the District At- following further appro- observations are torney proceedings, General in these priate and should be included. this, unrepresented; State is According ap- record direct itself, may peti- prejudicial peal to this prosecutеd peti- by the tioner, specified duties considering the brother, tioner and his Charles Alfred Cur- of the District With- General. *6 eton, duly both of them were adjudged to out a finding clear and detailed indigent by they trial court and and his judge, represented were appeal in their trial and counsel and the are at a to this court-appointed Court counsel. complete loss to know basis judge’s judgment; trial decision as- This has not raised the ques- signment appellate review of errors and improper tion of jury argument by the seriously completely are if frustrated not District prior to his finding by lack of a definitive thwarted purely conclusory in statements contained judge. of fact These offi- present post-cоnviction his petition. He require shortcomings cial alone would did question not raise that in his motion judgment reversal of the for a new trial nor appeal in his direct upon a court and remand for new this however, Court. say, This not to petition.” that failure to this during raise matter original trial appeal and direct pre- forever Supreme has ad- Histоrically, Court our right cludes all subsequent complaint that the word general rule hered to the and judicial review. regarded and ordinarily must be “shall” unyielding
However, expressing an considering this case in its to construed directory merely tality, agree mandate, being I that this and not as does bring question used in constitutions discretionary, when within the rule estab State, Tenn. lished 171 this Rounds v. Court and statutes. David Lee Schoon- 212; Nash- State, 10, over Louisville & 511, v. Hamilton Criminal # de 106 S.W.2d 700, Hammer, 236 IS, 1968, Tenn. May cided 191 Bailey R. Isaac ville Co. Tenn. 971; 86 Morgan Leonard Robinson v. Hamilton
239 Avery, 472, Ussery v. (1888); 7 S.W. 656.
222 Tenn. Tate, 135 Company v. Parker-Harris 54, 57, Court S.W. of law: significant this statement made Charles, City, for Edwin B. Johnson construction statutory “It rule plaintiff in error. ain is used the same word that where Pack, Gen., Atty. Pеe- David M. Arnold meaning once, than statute more Gen., Nashville, bles, Jr., Atty. Lewis Asst. ordinarily be it will place, clear one Gen., City, May, Atty. Dist. Mountain W. meaning else- to have construed for defendant error. in the act. Lewis’ Suth.Stat. where Ed.) (2d p. 758.” Constr. OLIVER, Judge. constitutional, as statutes long “So duty of perform one must their the courts OPINION State, supra. enforcing Morgan v. them.” Hurd, below, Charlеs Don the defendant represented
indigent by court-appoint- counsel, appeal upon ed Court nature a writ error from the judgment Criminal Court Wash- ington County him adjudging concealing property stolen at less valued sentencing imprison- than him $100 HURD, Error, Plaintiff Don Charles county jail ment for five months days. and 29 Tennessee, in Error. Defendant STATE September opinion In an Court reversed Appeals of Tennessee. Court Criminal trial court and remanded this case 29, Oct. Exceptions the Bill of new trial because Supreme Upon Certiorari Denied Court seasonably considera- filed.. writ of tion of the for a State’s 7, 1972. Feb. certiorari, Supreme concurred *7 position and the Bill State’s ordered Exceptions filed under Acts Chapter of the Public 27-111, re- which amended for consid- manded the case merits. upon eration its record, in our Upon examination of inescapable that opinion the conclusion is jury and the the verdict of wholly void. This of the trial Ex- that the Bill of from the results Minutes ceptions positively that flecting the trial show jury open court the returned verdict “con- found the less than of value cealing property” $100. that when Exceptions shows The Bill of