| Tenn. | Dec 31, 1968
delivered the opinion of the Court.
Charles W. Elliott was indicted, tried and convicted of the crime of rápe, and sentenced to death. The Court of Criminal Appeals affirmed by opinion filed May 3, 1968. This Court granted certiorari to examine certain alleged errors.
A very brief history of the case is that: On January 4, 1966, Mrs. Daphine Grimsley Huddleston, a forty-five year old white woman, was abducted by a Negro man who got into her parked car as she was leaving the parking lot of a shopping center in Clarksville, Tennessee. The man told her that he held a gun in his left hand nndeuhis coat, and under this-duress, she drove her car according
Elliott filed a plea in abatement attacking this indictment on the ground the jury commissioners who selected the grand jury vemre unlawfully and deliberately limited proportionately the number of Negroes selected for jury service, solely on account of their race and color, so that Negro citizens of Montgomery County were deliberately and unlawfully excluded from all grand juries in the county for many years preceding the grand jury which indicted the petitioner; and that this condition applied when the grand jury which indicted petitioner was selected. This plea was heard on its merits on December 12, 1966, and on December 28, 1966, the court decided the plea was without merit.
■ In addition, there was' a motion to quash the indictment, and'a-motion for change of venue, both of which were overruled, the latter being overruled after the introduction of evidence. •
There was also a challenge to the array of the jurors, because Elliott was a Negro and the system of jury selection practiced in the county discriminated against him, by denying Ms race representative membership on the jury panel» This, motion was denied by the trial, court.
After a three day trial, on January 17,1967, petitioner was convicted of rape, and his punishment fixed at death by electrocution.
Petitioner filed a motion for a new trial, specifying substantially that there was no evidence to support the verdict and the verdict was contrary to the preponderance of the evidence; that the court erred in failing to sustain the challenge to the array of jurors; erred in failing to grant petitioner’s motion to change venue; erred in failing to sustain petitioner’s plea in abatement; erred in failing to sustain petitioner’s motion to suppress evidence obtained by the investigating officers who took him into custody; erred in failing to suppress evidence obtained by questioning petitioner without informing him he was the principal subject in a capital case, and without properly advising him of his constitutional rights to counsel. This motion was overruled and petitioner perfected an appeal which was heard by the Court of Criminal Appeals.
In the Court of Criminal Appeals, the matters complained of in the motion were assigned as error, and all of the assignments were overruled and the judgment affirmed, with one judge dissenting.
Coupled with the petition for certiorari filed with this Court is a motion, based on the indigency of the petitioner, to order the trial court to authenticate and certify to this Court a transcript of the hearing on the plea in abatement to the indictment, a transcript of the voir dire proceedings, and a transcript of the proceedings
The contention is also made that the missing parts of the transcript are indispensable to a consideration by this Court of petitioner’s further contention his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States, as defined and proscribed in Witherspoon v. State of Illinois, (June 3,1968), 391 U.S. 510" court="SCOTUS" date_filed="1968-06-03" href="https://app.midpage.ai/document/witherspoon-v-illinois-107715?utm_source=webapp" opinion_id="107715">391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, were erroneously denied to him.
It is contended this motion, to have the trial court certify the missing parts of the transcript, should be allowed because a motion was made in the trial court, based on petitioner’s indigency, that these parts of the transcript be furnished, and that this motion was overruled without a determination by the trial court of the fact of petitioner’s claimed indigency and his right to the transcripts without even a hearing thereon. This conten-
. There is in the record a motion as follows:
“TO THE HONORABLE WILLIAM 0. BEACH, ' JUDGE OF THE CRIMINAL COURT FOR ■ MONTGOMERY COUNTY, TENNESSEE.
STATE OF TENNESSEE VS. CHARLES W. ELLIOT
MOTION
This writing is to confirm a verbal motion made to this Honorable Court on or before May 31, 1967, wherein the Defendant, Charles W. Elliott, through his attorneys, has moved the Court to order the State, at the expense óf.the State, to produce the transcript of the Yoir Dire Examination, the transcript of a hearing in this Honorable Court on the 11th day of January, 1967, of the Plea to Abate the Indictments based upon a lack of representation of the Negro race in the composition of the Grand Jury which indicted this Defendant; and the transcript óf the argument of the Motion for a New Trial, all of which are required for a complete and impartial examination of the merits of the Appeal in this cause, and which are not available to the Defendant because of his having become impecunious after his conviction in this cause.
The causes for this Motion are:
1. Neither this Defendant nor his family, who procured the services of counsel and paid the previous costs in this
2. In tbe grounds upon which tbe Motion for a New Trial is based it is stated in Paragraph 3: ‘The Court erred in failing to sustain tbe challenge to tbe array of jurors * * *’ and in Paragraph 5: ‘The Court erred in failing to sustain tbe Defendant’s plea to abate tbe indictments because of tbe fact that bis race was unrepresented in tbe Grand Jury that indicted him.’
3. As can be seen from tbe foregoing, the substance of tbe complaint of a lack of fairness in these proceedings is an allegation on tbe Defendant’s part that bis Constitutional rights have been violated in tbe selection of a Grand Jury, in the composition of tbe Petit Jury, and in bolding tbe Venue in tbis County, based upon tbe lack of representation of tbe Negro race in both juries, and upon hostility in tbis County against him, both because of bis race and because of tbe adverse and inflammatory publicity widely circulated prior to and during bis trial.
4. In view of tbe foregoing, no appellate review can validity be made of these objections without tbe consideration of tbe content of tbe records herein requested.
WHEREFORE, it is moved and requested that tbis Court arrange to have these missing transcripts, which have been recorded, produced in typewritten form, at tbe expense of tbe State, and included as a part of tbe records in tbis case, for consideration by tbe appellate review, in order to insure justice to the Defendant herein.
*302 s/ Walter A. Sanford
WALTER A. SANFORD
s/ Roscoe J. Hamby ROSCOE J. HAMBY ATTORNEYS FOR THE DEFENDANT”
Tbis written motion was marked filed by the Clerk of the Court of Criminal Appeals at tbe time the record in the case was filed in his office, August 2, 1967. However, because the motion bears no evidence it was filed in the trial court it was contended by the State at the argument of this case at the bar of the Court that it could not be considered.
Since the motion had been marked filed by the Clerk at the time the record in the case was filed, the Clerk of this Court at the Court’s direction, made inquiry, and was furnished an affidavit by Howell C. Smith, Jr., Clerk of the Criminal Court of Montgomery County, Tennessee, by which that officer certifies to this Court:
“ * * * that a Motion to confirm a verbal motion, addressed to the Honorable William 0. Beach, Judge of the Criminal Court for Montgomery County, Tennessee, was lodged by the attorney for Charles W. Elliott, with me as Clerk on or about June 11, 1967. The said Motion was not marked filed by me because it had been previously overruled and in my opinion no hearing would have been scheduled. I sent it with the record to show the efforts to (sic) the defendant but was forwarded as part of the record in this case to the Clerk of the Court of Criminal Appeals at Nashville.
*303 “IN TESTIMONY WHEREOF, I hereunto subscribe my name and affix the seal of said Court at office in Clarksville, on this the 13th day of September, 1968.
s/ Howell C. Smith, Jr., HOWELL C. SMITH, JR., CRIMINAL COURT CLERK OF MONTGOMERY COUNTY, TENNESSEE.”
On this showing the motion will be treated as a part of the record in the case, as on an order of diminution of the record.
Considering petitioner’s motion in this Court, that the missing parts of the transcript be certified by the trial court for use by this Court: this cannot be done now as the trial court has no jurisdiction or authority to make such an authentication and certification at this time, and our order can only reach existing records and transcripts. The absent parts of the transcript could only come before this Court as parts of a bill of exceptions and no authority now resides in the trial court to make the necessary authentication. T.C.A. sees. 27-110, 27-111.
The Court is of opinion, on the basis of the strong prima facie case of indigency made by petitioner, the assertion of his indigency by counsel in the motion, petitioner’s own affidavit of poverty attached to the motion, none of which is contradicted by the record, that by state action petitioner was deprived of a right afforded him by T.C.A. sec. 40-2029 et seq., and required by the equal protection clause of the Federal Constitution as defined by the United States Supreme Court.
These Code sections, (40-2029, 40-2040), which provide for transcripts to be furnished indigents in felony eases, are a statutory implementation of the holding of the Supreme Court of the United States in Griffin v. Illinois, 351 U.S. 12" court="SCOTUS" date_filed="1956-05-28" href="https://app.midpage.ai/document/griffin-v-illinois-105382?utm_source=webapp" opinion_id="105382">351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, that destitute defendants must be afforded as adequate an appellate review as defendants who have money enough to buy transcripts, and that this means state furnished transcripts for indigents. Reading the Tennessee Code provisions in the light of this case, it is obvious they were enacted to meet its holding.
So, while T.C.A. sec. 40-2037 does not provide in so many words for a hearing to determine indigency where a transcript is asked for by a defendant, the statute, in providing that a reporter shall be furnished an indigent defendant “upon the direction of the court”, necessarily contemplates it to be the duty of the trial judge to make a determination of indigency upon motion or application, and to act as the facts developed may require.
Although not in point, Russell v. State ex rel. Arthur, (1965) 218 Tenn. 118" court="Tenn." date_filed="1965-11-03" href="https://app.midpage.ai/document/russell-v-state-ex-rel-arthur-8304218?utm_source=webapp" opinion_id="8304218">218 Tenn. 118, 401 S.W.2d 586 and Nelms v. State,
It is evident the present case involves an equally, if not more serious, deprivation of the defendant’s equal protection rights, and must be reversed.
In summary, it is plain from the record that petitioner was denied the federal constitutional right delineated in Griffin, as implemented by T.C.A. secs. 40-2029, 40-2043, and for this reason the judgment of the trial court must be reversed.
Having only an incomplete transcript of the trial, and being required to reverse and remand for a new trial on this account, we do not reach the remaining assignments of error. This non-action on the assignments is not an approval by this Court of the disposition made of the
In view of the disposition here made of the case we do not reach the State’s contention that the judgment of the trial court should be affirmed for lack of a bill of exceptions; the denial of the constitutional right of a prima facie indigent to a complete record evident on the face of the part of the record before us precludes consideration of this subordinate question.
Reversed and remanded for a new trial.