RAYMOND DAVIDSON v. STATE OF TENNESSEE.
Supreme Court of Tennessee
May 5, 1969
Opinion on Petition to Rehear filed July 28, 1969
443 S.W.2d 457
(Jackson, April Term, 1969.)
GEORGE F. MCCANLESS, Attorney General, and ALBERT D. NOE, IV, Assistant Attorney General, Nashville, and DAVID P. MURRAY, District Attorney General, and WHIT LAFON, Assistant District Attorney General, Jackson, prosecuted the case in the trial court for the State.
The plaintiff in error was indicted for violating the liquor laws on September 7, 1967, and was tried for this offense on September 22, 1967, the jury returning a guilty verdict and fixing the defendant‘s punishment at ninety (90) days in jail and assessing a fine of two hundred and fifty ($250.00) dollars. After a motion for a new trial was seasonably filed and overruled, and a motion for a suspended sentence was made and likewise overruled, a judgment was entered and in due season the plaintiff in error perfected an appeal to the Criminal Court of Appeals where the case was heard and the suit dismissed because the technical record in the case showed the following:
“This day came the Grand Jury into open Court in charge of their sworn officer, James Davis, Deputy Sheriff of Madison County and returned the following indictments and presents to-wit:—One presentment against RAYMOND DAVIDSON charging him with V.L.L. Signed by the Foreman and Members of the Grand Jury. A TRUE BILL, Summon for the State, Charles L. Stanley, Jim McClintock, Marvin Wood.
DAVID P. MURRAY
Attorney General.”
The majority opinion dismissed the case and remanded it because, “There is no violation of law known as V.L.L. and it is only by reading the briefs filed by the attorneys that one may surmise the defendant was tried for violation of
In due season the State filed herein a petition for certiorari and accompanying this petition for certiorari was a motion for diminution of the record asking to have the original presentment, or a certified copy thereof, sent to this Court. After a full study of the matter we were convinced that the petition for certiorari should be granted, which it was, and after this was done we sustained the motion of the State for diminution of the record and it was ordered that this be done. There is likewise accompanying the petition for certiorari the original presentment wherein this man was indicted. This presentment shows the man was indicted for “unlawfully receiving intoxicating liquors in the State.” This wаs signed by the District Attorney General and duly certified by the Clerk of the Court, Mr. William Bond, certifying that this was a true copy of the presentment on file in this case.
This Court in 1846 in the case of Brown v. State, as reported in 26 Tenn. (7 Humph.) 155, held that the Clerk‘s failure to endorse “a true bill“, the failure to have the signature of the foreman of the grand jury as is required in felony indictments and the spreading of this indictment upon the minutes of the court are immaterial when the original indictment is in existence. This same holding was later affirmed in 1887 in State v. Herron, 86 Tenn. 442, 7 S.W. 37. In the Brown case, supra, the Court used some language which is applicable to the situation here:
“The statute requiring indictments in the сases of felony to be spread upon the minutes proceeds upon cautionary and conservative grounds, because some indictments have been lost, not with the view to affix a higher or an exclusive verity to the record from the minutes, which is indeed a copy by the clerk from the original. And if there were any difference between them, both being in existence, perhaps the greater faith would be concеded to the original.”
And then the question was asked, “Does the record in the case before us, in view of the decisions of this court, sufficiently show the finding of the bill of indictment by the grand jury and its return into court?” The question is discussed at some length and it was determined that this did not void the judgment. The Court said in State v. Herron, supra, that:
“But it was not contemplated by the legislature and should not be held by the courts, that his failure to perform that duty shall vitiate the original indictment, and defeat a trial of the prisoner upon it, when the original indictment is itself actually in file in the case, with proper indorsement and signature upon it, as in the case before us. * * *
“Therefore, we think the omission disclosed by this record is not fatal to the indictment.”
This statute (
No question has been raised by the two able attorneys for the plaintiff in error as to the sufficiency of this technical record or as to the sufficiency of the minute entry of the presentment. Neither party noticеd this apparently prior to its being pointed out and the suit dismissed by the Court of Criminal Appeals. The case was briefed and argued on entirely other grounds. The State likewise did not undertake to supplement the record by a motion suggesting diminution in regard to the possibility of the insufficiency of the record in this respect, and apparently it was not noticed by either side until pointed out in the opinion of the Court of Criminal Appeаls.
The question here under our statutes and their construction by the courts over the years is whether a certified copy of the presentment upon which the accused was tried may now be presented to this Court by a suggestion of diminution of the record so as to correct an obvious error in the transcript. It is thus after this Court has granted the petition for certiorari that it now has jurisdiction of this case, and, since it has jurisdiction of the case, it is the proper and correct thing for this Court to grant the diminution of the record so as to have the certified copy of the original of this presentment sent up, which it has done, and thus shows what the man was charged with doing and what the jury was told that he was charged with doing and their finding upon this presentment charging him with violating the liquor laws. This presentment and the way it is now prevails over the minutes as transcribed by the clerk. See Page v. Turcott, 179 Tenn. 491, 167 S.W.2d 350.
It seems to us that the Court of Criminal Appeals based their opinion on a false assumption, that is, that the respondent went to trial on a presentment “charging him with V.L.L.” It thus results in view of this diminution as to what the man actually went to trial on that the decision of that court was incorrect and should be reversed, which it is.
The State in its petition for certiorari and brief points to a Florida case, that of Turner v. Shelfer, 91 Fla. 39, 107 So. 247, for the proposition that this Court should correct the minutes so that the recоrd may reflect the true facts and not an erroneous state of facts. That court, that is the Florida court, among other things, said:
“Another ground of the motion to dismiss the appeal is that it was taken May 11, 1925, and made returnable December 27, 1925, more than 90 days from its date. Sections 2908 and 3173, Rev.Gen.Stats. 1920. It is, however, shown by certified copy of the record below that the recitation in the transcript that the appeal was takеn May 11 is erroneous, and that the entry of appeal was filed for record on October 12, 1925, and
duly recorded, making it not subject to the stated ground of the motion to dismiss. The certified copy of the entry of appeal and of its record in the chancery order book as required by the statute will be made a part of the transcript here.”
Even though this is a civil case from a sister state the logic and reasoning of it are particularly applicable to the factual situation here. Then, too, in 1911 the Legislature passed our Harmless Error Statute (
We will now set forth the facts. An agent of the Alcoholic Beverage Commission obtained a search warrant to search the Pine Ridge Beer Tavern on Highway 18, the highway leading from Jackson to Bolivar in Madison County. This agent testifies, and the record shows, that he went to this club about 4:30 in the afternoon, and found a bartender and two or three customers sitting around drinking beer. He searched the premises and found in the backroom forty-five (45) half pints of tax paid whiskey therein. There was a beer license on the wall inside this place in the name of the defendant, Raymond Davidson. When this search was made this agent testified he asked the bartender who ran the place and to call the manager. He said that the bartender immediately made a telephone call and аbout thirty minutes later the defendant came to the club. The defendant said
Another agent of the Alcohol Beverage Commission was likewise on this raid. He testified to the same effect as Agent Stanley; he said also that the defendant denied that he owned the whiskey but said that he was thе manager of the club. At the end of this proof a motion for a directed verdict was made and overruled by the trial court.
The questions raised and the errors assigned in the Court of Criminal Appeals were:
“1. There is no material or substantial evidence to support the verdict of the jury and the evidence preponderates against the verdict of the jury and in favor of the innocence of the defendant.
“2. The Trial Cоurt erred in admitting testimony of a State‘s witness that the beer license on the wall was in the name of the defendant, said testimony being hearsay and not the best evidence.”
Able counsel for the plaintiff in error makes the very plausible argument that the evidence in the record preponderates against the verdict and in favor of the innocence of the accused. It has been held by the decisions of this Court for practically a hundred years that with nothing to the contrary on appeal, after a jury has determined the facts against a man, the burden is on the plaintiff in error to show that the evidence preponderates against the verdict and in his favor. Cooper v. State, 123 Tenn. 37, 138 S.W. 826. The whiskey was found on the premises of the plaintiff in error and he admitted to
The contention of the plaintiff in error through his able counsel is that since the State didn‘t produce the beer license with the defendant‘s name on it and did not explain the non-production of the license before the testimony of the officers as to what the license showed, that is, that it showed Davidson‘s name on it, this constituted reversible error on the ground that the evidence was inadmissible. In researching this question the State cites the case of Commonwealth v. Brown, 124 Mass. 318 (1878). We do not have this report in our library аnd the case was written before the reporter system went into effect, but we have before us Wharton‘s Criminal Evidence, Vol. 2, 12th Ed., Anderson, which cites this case, and the author of this work says:
“Thus, without production of explanation of non-production, witnesses may give parole evidence of the following: the inscriptions on banners at public meetings; the writings on a trunk tag at least for the purposes of identification; a license hanging on a wall [the note for this last statement cites the Brown case, supra]; the marks on clothes and other articles of personal property; the brands on a cow; the marks on
the heads of certain barrels for the purpose of identifying them; and the numbers on tires or automobile license plates.” Wharton‘s Criminal Evidence, 2nd Ed., page 506, sec. 611.
These officers testified that this license was hanging on the wall and thеy saw it, and they asked the bartender where the manager was and he called him and then the person showed up and admitted that he was the manager but said that the liquor was not his. Therefore, it seems to us that the testimony of the men who saw this license on the wall may be proven from what they saw. See also Wharton‘s, supra, at page 503. The fact that this license was hanging on the wall was a fact that could be observed by a witness and was admissible because the witness was testifying as to what he observed, not as to what the writing contained. In other words, the testimony was not as to the contents of the writing but as to what the witness could and did observe. It seems to us that the distinction is that the witness might testify he saw a person holding an airline ticket while waiting to board an airplane, but he could not testify as to the final destination, terms of the contract of carriage, or the price of the trip, written on the ticket, without producing the ticket or explaining its absence. In the same Edition of Wharton‘s above, page 476, in this regard it is said:
“* * * the best evidence rule is applicable only to the proof of the contents of documents or recordings.”
Normally a document in the possession of an adverse party need not be entered in the proof, but the contents of the document may bе proven by parole evidence without prior proof of notice to produce the origi-
Finally, the State takes the position that this testimony as to the defendant‘s beer license was proof on a collateral issue and was admissible as an exception to the “best evidence” rule, and the State cites for this Wharton‘s, supra, sec. 605. It seems to us after spending sоme two or three days working on this case, and thinking about it, that unquestionably it becomes the duty of the Court under such a situation to grant an order for diminution of the record and then determine the case on the merits rather than dismiss it without either party knowing the reason it was dismissed. The authorities, as we see them, clearly warrant the order we are making herein for diminution of the record, and under this record the evidence clearly shows the man to be guilty.
The proof of the possession of whiskey as shown herein fairly indicates that it was acquired since the enactment of Chapter 12, Public Acts of 1917, and in the absence of any proof that the liquor was manufactured on the premises where found the inference is clear that the accused either transported the whiskey to the place where found or received it there. French v. State, 159 Tenn. 451, 19 S.W.2d 276.
The “bone-dry” law is still in forсe all over Tennessee with certain exceptions and under certain conditions in certain localities. See Daniels v. State, 176 Tenn. 181, 140 S.W.2d 148. In cases of this kind the burden is on the defendant, who is now plaintiff in error, who is indicted under the “bone-dry” law to show the possession was legal under the local option law. Renfro v. State, 176 Tenn. 638, 144 S.W.2d 793.
Over the years we have had many liquor cases and by research of the authorities one can find one that covers most every situation. One fundamental in all these liquor cases is the presumption, when liquor is found in the house or place of business that the plaintiff in error has control of, this liquor is in his possession and belongs to him. Such a presumption presents a legal situation for the jury to decide in the absence of proof to the contrary. We had one case several years ago of Hicks v. State, 194 Tenn. 351, 250 S.W.2d 559, which is authority for the proposition that when liquor is found in оne‘s home in 1949 this warranted the conclusion that the defendant came into possession of the liquor since 1917 (Chapter 12, Public Acts of 1917). See likewise Younger v. State, 206 Tenn. 558, 335 S.W.2d 828; and Turner v. State, 216 Tenn. 714, 394 S.W.2d 635.
After a thorough consideration, as said above, of this matter we are convinced that there is no error in this record, and the judgment below should be affirmed.
ON PETITION TO REHEAR
The plaintiff in error has filed herein a courteous, forceful and dignified petition to rehear. The opinion of this Court was handed down on May 5, 1969. The burden of this petition is that this Court reversed the decision of the Court of Criminal Appeals and in so doing has not allowed the Court of Criminal Appeals to pass on the assignments of error therein made, because we re-
We on the threshold are faced with the holding of this Court in Independent Life Ins. Co. v. Hunter, 166 Tenn. 498, 506, 63 S.W.2d 668, 671, that: “no error of the Court of Appeals, either of commission or omission, can be reviewed by this court except upon petition for cеrtiorari.” A number of applications of this rule may be found by Shepardizing this case. When this rule was stated the Court did not take into consideration a state of facts as herein presented. Over the years different circumstances have arisen.
We are of the opinion that when certiorari is granted one party, and the other party has not assigned error but has unanswered errors assigned in the Court of Appeals that this Court may answer those unanswered errors in the Court of Appeals and thus dispose of the entire case.
When certiorari is granted to one party and the other party does not assign cross-errors (we have Rules 12 [second paragraph], 13, and 15 [2] allowing them to do so) the party not assigning waives the right to do so.
It is fundamentally, legally and historically true that the granting of certiorari removes the whole case to the reviewing court so that we may consider any
Having considered this case on its merits as well as on the question presented on the State‘s petition for certiorari, we for reasons herein stated must overrule the petition to rehear. The costs will be assessed against Davidson and his sureties.