Donald Ray EVANS, Petitioner, v. STATE of Tennessee, Respondent.
Supreme Court of Tennessee.
Sept. 11, 1978.
574 S.W.2d 283
The questioned act affects the counties subject to it in their governmental or political capacities or agencies. Setting minimum compensation of county officials and employees is a governmental function and it is permissible to confer benefits on private citizens as governmental employees. Hobbs v. Lawrence County, supra; Union County v. Sexton, supra; State ex rel. Bise v. Knox County, supra; Hamilton County v. Bryant, 175 Tenn. 123, 132 S.W.2d 639 (1939); Hamilton County v. Gerlach, supra. Thus the provisions of Article XI, Section 8, are not contravened by the act in question.
Should Article XI, Section 8, be otherwise applicable, the questioned act is not invalid because a reasonable classification, that is by population, affirmatively appears and satisfies the constitutional requirements. And this even though only two counties are at present subject to its terms, it appearing that all counties, presently or in the future subject to its provisions are or will be treated the same under its provisions. Union County v. Sexton, supra; Hobbs v. Lawrence County, supra.
Defendants’ assignment of error number two is overruled.
The judgment of the trial court is affirmed and defendants-appellants taxed with cost of the appeal.
HENRY, C. J., and FONES, COOPER and HARBISON, JJ., concur.
William O. Kelly, Asst. Atty. Gen., Brooks McLemore, Jr., Atty. Gen., Nashville, for respondent.
OPINION
COOPER, Justice.
Petitioner, Donald Ray Evans, was convicted of first degree burglary, with the punishment for that crime being fixed by the jury at five to ten years in the penitentiary. The punishment was enhanced to life imprisonment under the provisions of
The habitual criminal act,
[a]ny person who has either been three (3) times convicted within this state of felonies, not less than two (2) of which are among those specified in
§§ 39-604 ,39-605 ,39-609 ,39-610 ,39-3708 ,40-2712 ,52-1432(a)(1)(A) or were for a crime punishable by death under existing law . . . or who has been three (3) times convicted under the laws of any other state, government, or country of crimes, not less than two (2) of which, if they had been committed in this state, would have been among those specified in said§§ 39-604 ,39-605 ,39-609 ,39-610 ,39-3708 ,40-2712 ,52-1432(a)(1)(A) or would have been punishable by death under existing laws . . . [,]
with the provisos that petit larceny is not to be counted as one of the three convictions, and that each conviction must be for a separate offense, committed on a separate occasion. Under
The principal opinion of the Court of Criminal Appeals, over the strong disagreement of two of the judges, stated that the crime of which the defendant stands charged may be used as one of the three felonies that are required under
In his assignments of error, the petitioner has questioned whether the prior crimes of which he was convicted are such as will support a finding that he was an habitual criminal at the time he committed this burglary.
In so far as it is material to this aspect of the case, the record reflects that, prior to his present conviction for burglary, the pe-
First, then, the question is whether the petitioner‘s conviction for the offense of larceny from the person in Michigan may serve as one of the specified offenses. We note that, at the time this offense was committed, the statutes of Tennessee and of Michigan that defined this offense were, in all respects material to this case, identical. Compare Tenn.Code of 1932, § 10927, with Mich.C.L.A. § 750.357. Thus, the acts that the petitioner committed in Michigan, and which led to his conviction under the Michigan statute, necessarily would have supported a conviction of larceny from the person under
The petitioner has also questioned whether his conviction for committing a crime against nature, as proscribed by
Neither sodomy nor buggery is defined in
At trial, the judge instructed the jury to the effect that “crime against nature” and “sodomy” were synonymous, and that the petitioner‘s conviction for the former could be counted as one of the two specified crimes required under
The remaining assignments of error raised by the petitioner are without merit, and are overruled. Accordingly, his conviction for burglary is affirmed. His sentencing as an habitual criminal is set aside, and the case is remanded for a new trial on the habitual criminal count of his indictment, consistent with this opinion.
BROCK and HARBISON, JJ., concur.
HENRY, C. J., and FONES, J., concur in part and dissent in part.
HENRY, Chief Justice.
I. CONCURRING
I concur in so much of the majority opinion as holds that “the present offense, the punishment of which the State seeks to enhance, may not be used as one of the convictions necessary to bring the defendant within the definition of an habitual criminal.”
I file this concurring opinion because I feel under a form of moral compulsion to confess error in the conclusion reached by this Court in Pearson v. State, 521 S.W.2d 225 (Tenn.1975) wherein we unanimously declared:
The third conviction of one of the prescribed felonies is the triggering mechanism which brings the habitual criminal statute into play. 521 S.W.2d at 227
This admittedly erroneous dictum prompted Judge Tatum‘s holding in the opinion of the Court of Criminal Appeals. For its inclusion in Pearson, as a part of the “prelude to our consideration of the petitioner‘s double jeopardy claim“, 521 S.W.2d at 227, I take full responsibility.
At the time I prepared the opinion in Pearson, I was fully aware of the successive holdings in McCummings v. State, 175 Tenn. 309, 134 S.W.2d 151 (1939); Brown v. State, 186 Tenn. 378, 210 S.W.2d 670 (1948); and Wright v. State, 217 Tenn. 85, 394 S.W.2d 883 (1965). However, I was also aware that these cases either did not address the issue or did not analyze the Habitual Criminal Statutes,
Under these circumstances I followed the plain language of the statute which is couched in terms of a defendant having been “three (3) times convicted” of the various qualifying offenses, and thereby evincing a strong public policy established by the Legislature that those who have been “three (3) times convicted” should be removed from society as a class of confirmed criminals who are “menace[s] to society and should be confined to prevent the committal of other, and probably more serious, crimes.” McCummings v. State, 175 Tenn. 309, 311, 134 S.W.2d 151, 152 (1939). Since a construction of this phase of the statutory scheme was not involved in Pearson, I had no reason to consider the matter in depth.
No reported decision affords any guidance as to the reason that a third conviction will not trigger the habitual criminal statutes. The majority opinion sheds no light upon the matter. It contains this unfortunate statement:
Clearly, then, to bring the defendant within the ambit of the statute, the state must show that he was an habitual criminal at the time he committed the principal offense. (Emphasis in original).
Habitual criminal status does not attach until a jury has so determined. What the state actually must show is that he has been convicted of three qualifying offenses prior to the time of the commission of the triggering offense and that those convictions have become final. The rationale of this statement appears infra.
In McCummings, the issue is not discussed. The question there was one of notice. The defendant first learned that he was going to be proceeded against as an habitual criminal during the voir dire examination of the jury. The indictment only charged the commission of the substantive offense, with no reference to the habitual offender statutes. This Court held that such a practice did not jeopardize the accused and upheld the imposition of the habitual criminal status. The Court suggested, however, “the practice of giving him notice in the indictment, or otherwise, as early as possible.” 175 Tenn. at 313-14, 134 S.W.2d at 153. State v. Gore, 182 Tenn. 94, 184 S.W.2d 366 (1945), was not cited in the majority opinion but specifically supports the four conviction rule. There the Court held to the four conviction requirement because of the State‘s concession (182 Tenn. at 97, 184 S.W.2d 366) and did not address the issue. The principal complaints made by the defendant were that (1) the indictment did not alert him that the Habitual Criminal Statutes would be invoked and (2) that he was not given notice that he would be proceeded against under this law until so short a time before his trial that he had no opportunity to prepare his defense. The Court rejected these insistences and affirmed.
In Brown, supra, the Court simply followed McCummings and Grandstaff. There the indictment contained a count on the Habitual Criminal Act. The Court held it to be “surplusage” because there was no requirement that he be charged with habitual criminality in the indictment. The Court held that the statute itself is notice.
It should be pointed out that the principal holdings of these three cases were obliterated by the enactment of Section 11863.5 of the 1950 Supplement to the Official Code, which modified Section 5, of the Acts of 1939 (See
Wright, supra, the remaining case cited in the majority opinion, simply holds that four convictions were sufficient, without any analysis of the issue. The same is true of Beeler v. State, 206 Tenn. 160, 332 S.W.2d 203 (1959).
Thus, it will be seen that as of this time our courts have not made even a simple analysis of the issue here involved.
In the face of at least a superficial legislative intent that three convictions will trigger the application of the Habitual Criminal Act, it becomes the duty of the Court to uphold the act and apply it in accordance with the plain provisions of the statute, unless other critical considerations force a contrary construction.
Here such a consideration is present. The only reason that the third conviction may not trigger the application of the statute is that it has not become final. It may be set aside by the trial judge or may be reversed on appeal. In either event the status of habitual criminality would be obliterated. The word “convicted” used in our Habitual Criminal Act must be construed to denote a final conviction. See Anno., 5 A.L.R.2d 1808 (1949).1
A criminal defendant whose convictions of three qualifying offenses have become final may be proceeded against as an habitual criminal. His indictment need not await the finality of the qualifying convictions but the final imposition of the status may not be made until all underlying convictions have become final. But the statutory scheme contemplates a trial of the habitual criminal charge at the same time as that of the underlying felony.
The trial is bifurcated, with the jury first determining guilt of the underlying felony before considering the habitual criminal count. Harrison v. State, 217 Tenn. 31, 394
Thus, while the third final conviction forms the basis for the invocation of the Habitual Criminal Act, the fourth felony actually triggers its application and serves as the carrying vehicle to bring the habitual criminal charge before the Court.
II.
I respectfully dissent from the remainder of the opinion.
The following tabulation shows, in chronological order, petitioner‘s pertinent criminal history:
| Date | Offense | State |
| July 13, 1961 | Felonious escape | Tennessee |
| October 11, 1961 | Felonious escape | ” |
| September 15, 1964 | Crime against nature | ” |
| March 6, 1970 | Larceny from the person | Michigan |
| November 14, 1973 | Attempted breaking and entering | ” |
In the present case, the underlying felony conviction was for first degree burglary.
I agree with the conclusion reached in the majority opinion that larceny from the person is a qualifying offense.
I disagree with and dissent from so much of the majority opinion as remands on the crime against nature question.
Judge Tatum, writing for the majority in the Court of Criminal Appeals, held that a crime against nature is a scheduled crime under the Habitual Criminal Act. His reasoning:
The term “Crime Against Nature” is an euphemism for the particular acts that constitute sodomy at common law. (citing Stephens and Locke, supra) Our courts, in effect, have held the terms “Crime Against Nature” and “Sodomy” to be synonymous.
I agree with this conclusion.
Section
kind or any beast.” This “expression is a euphemism for the particular acts that constitute the offense of sodomy at common law” and “means the common law offense of sodomy.” Stephens v. State, 489 S.W.2d 542, 543 (Tenn.Cr.App.1972). It includes cunnilingus, Young v. State, 531 S.W.2d 560 (Tenn.1975); Locke v. State, 501 S.W.2d 826 (Tenn.Cr.App.1973), and fellatio, Young v. State, supra; “sodomy per anus and per os“, Cook v. State, 506 S.W.2d 955, 958 (Tenn.Cr.App.1973); and “all unnatural copulation with mankind or a beast, including sodomy.” Sherrill v. State, 204 Tenn. 427, 429, 321 S.W.2d 811, 812 (1959), quoting State v. Cyr, 135 Me. 513, 198 A. 743 (1938).
These definitions embrace all known forms of sodomy. Thus, under Tennessee law, sodomy is a crime against nature embracing carnal copulation between man and beast and all forms of unnatural, abnormal and deviant copulation between human beings, to include cunnilingus, fellatio and sodomy per anus.
As stated in Johnson, Crimes Against Nature in Tennessee: Out of the Dark and Into the Light, 5 Mem.St.L.Rev. 319, 329 (1975):
Most statutes prohibit acts that are referred to variously as sodomy, buggery, or crimes against nature. For the purpose of statutory law, these terms are equivalent; they are intended to reach the same kind of conduct.
This is the devolution of our law. It may not strictly accord with the common law, but it is too late now for us to overrule this established decisional law by attributing to the legislature an intent to use technically precise phraseology as opposed to words that have come to have a common meaning. In my view the legislature intended that all forms of crimes against nature be embraced within the term “sodomy“.
I would affirm the judgment of the Court of Criminal Appeals in respects, the re-
CITY OF BARTLETT, Appellant-Plaintiff, v. Frances HOOVER, Appellee-Defendant.
Supreme Court of Tennessee.
Sept. 25, 1978.
Henry H. Hancock, Julia Smith Gibbons, Memphis, for appellee-defendant; Farris, Hancock, Gilman, Branan & Lanier, Memphis, of counsel.
OPINION
W. E. QUICK, Special Judge.
This case originated in the city court of Bartlett, Tennessee, in which appellee, Francis Hoover, was fined the sum of fifteen dollars ($15.00) for violation of Bartlett City Ordinance 76-9, Section 4, prohibiting “pay-off” on pinball machines.
On appeal to the Circuit Court of Shelby County, the case was presented on stipulation of facts, to which both parties filed motions for summary judgment addressing the question of legality of the ordinance. Upon hearing of the cause, the trial court held Bartlett City Ordinance 76-9, Section 4, to be in conflict with the general statutes of the State of Tennessee and, therefore, invalid, null and void.
Motion for summary judgment filed by defendant-appellee was accordingly sustained and the case dismissed. From the judgment of the trial court, appellant-plaintiff has appealed directly to this Court on the stipulation of facts as filed in the record.
As the record will indicate, the City of Bartlett, on December 8, 1976, enacted City Ordinance 76-9, Section 4, which reads as follows:
“No award, pay-off, or delivery of anything of value, or representing, or exchangeable, or redeemable for anything of value, shall be made in any contest, tournament, league or individual play on any mechanical amusement device, and it shall be unlawful for any owner or operator of a mechanical amusement device to cause, permit, or allow the same; Provided, however, a mechanical amusement device may reward a player with repeat games so long as no other reward, pay-off or exchange for anything of value is made by the owner or operator.”