Farris v. StateFarris v. State
Lead Opinion
OPINION
The principal issue in these cases is the validity of § 2 of Chapter 163 of the Public Acts of 1973, which appears in § 40-2707 T.C.A. as the last paragraph thereof, and which reads as follows:
It shall be the further duty of the trial judge charging jurors in cases of criminal prosecutions for felony offenses to charge the said jury as to the provisions of this section and as to the provisions of §§ 40-3612, 40-3613, 41-332 and 41-334, wherever applicable.
Both the trial court and the Court of Criminal Appeals upheld this section.
We affirm the James E. Farris case for the reason that Farris did not assign error in this Court directed to this portion of the statute.
The remaining defendants charged the trial court with error in charging the jury as to parole eligibility. This opinion is concerned with these two cases.
I.
The effect of the 1973 amendment is to require that trial judges, in criminal cases (with the exceptions noted in the statute), charge the. jury with respect to parole eligibility, certain powers and duties of the Board of Pardons and Paroles, good behavior allowances, and the allowance of honor time. There is no requirement that the jury be charged as to the loss of honor time. (See § 41-335 T.C.A.).
The Court of Criminal Appeals passed upon and sustained the constitutionality of so much of Section 40-2707, T.C.A. as requires that the jury fix the minimum and maximum term, in the cases of Sharp v. State,
In Sharp, the Court of Criminal Appeals, speaking through Judge Galbreath, sustained Chapter 163 of the Public Acts of 1973 in the face of a challenge asserting that the Legislature invaded the province of the Judicial Branch of the government; however, that case did not touch upon the issue here presented.
In Halpin, the Court of Criminal Appeals had under consideration an assignment which read as follows:
The Trial Judge erred in charging the jury regarding the doubling of the minimum sentence, said charge being based*610 on an unconstitutional statute.515 S.W.2d at 660 .
The opinion copies Section 1 of the act, as it then existed, in its entirety, but stops short of Section 2, which is involved in the instant case. The court held in clear and unequivocal language:
We do not think the defendants have any standing to attack the validity of this statute because they have not been adversely affected by it.515 S.W.2d at 662 .
This statement operates to render as dictum the holding of the Court of Criminal Appeals, as to the constitutionality of the statute, moreover, this holding has no relation to the issue here under consideration.
In summary, as to the precise question herein involved, we address a matter of first impression. We are not, however, handicapped by lack of analogous precedent.
II.
Article II, Section 17 of the Constitution of the State of Tennessee provides, in pertinent part, as follows:
No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts, which repeal, revive or amend former laws, shall recite in their caption or otherwise, the title or substance of the law repealed, revived or amended.
The purpose of this constitutional provision is to assure that members of the Legislature and the public be given notice of legislative proposals and to prevent surprise and fraud in enactments. State v. Hailey,
Before discussing the precedents which in our view compel the conclusion that this Act is broader than its caption, it is necessary and proper that we consider the background of Section 40-2707 T.C.A.
The Indeterminate Sentence Law originated with Section 1 of Chapter 8 of the Public Acts of 1913, which provided in substance for sentences to an indefinite period not to exceed the maximum nor minimum term with allowances being made for good time and with the proviso that the person sentenced would be subject to release or parole and to final discharge by the Board of Pardons and Paroles, along with certain other provisions not here material. It is pertinent to observe that this section made absolutely no reference to the substance of any charge to be given to the jury.
This section was amended by Chapter 52 of the Public Acts of 1923 and as amended appears as § 40-2707 T.C.A.
The caption of Chapter 52 provided:
An act to be entitled an act to amend Section 1 of Chapter 8 of the Public Acts of 1913, so as to provide for the verdict of the jury to fix the maximum term in cases where maximum and minimum term is provided by law.
The body of the Act simply provides that the jury would fix the maximum term of the convicted defendant, would return a verdict in the form set forth in the amendment and would require that the trial judge in imposing judgment not fix a definite term but would sentence such person to the penitentiary for a period of not more than the term fixed by the jury, making an allowance for good time as now provided by law.
Again nothing in the caption or body of Chapter 52 of the Public Acts of 1923 even hints at any charge to be given to the jury.
Then came Chapter 163 of the Public Acts of 1973, the caption of which reads as follows:
An act to amend Section 40-2707 Tennessee Code Annotated, relative to verdict and sentence on felony conviction. (Emphasis supplied).
There is nothing whatsoever about this caption to alert any legislator or any interested citizen that tucked away into the Act would be a requirement that the judge charge the jury on parole considerations. All remaining portions of the Act relate to “verdict and sentence” as the caption said it would, but again the action was wholly and utterly silent on the charge to the jury.
While conceding that it is not necessary for the title of an amendatory act to set out the amendments proposed to be made, if such amendments fall within the title of the original act, we think, when the title of the amendatory act does specify the particulars in which the original act is to be amended, the body of the amending act should not contain other matters. Any other rule would be unsafe. If the title of an amending act merely indicates generally that amendments of the original act are to be made, then it rests upon all those affected by the original act to investigate, and see in what respects the original act is to be changed. If the title of the amending act, on the contrary, sets out the particular amendments that are to be made to the original act, it may be reasonably concluded that no amendments other than those stated are to be attempted. It would promote deception, if, under a caption undertaking to specify amendments to be made, other and different amendments were included in the body of the act. (Emphasis supplied).151 Tenn. at 175 ,268 S.W. at 384 .
This was a case of first impression in 1924 but it established the law in Tennessee and it is upon this case that we base this portion of this opinion, feeling as did Judge Green, that if this act had simply stated that it was an act to amend § 40-2707 Tennessee Code Annotated, this would have been sufficient as legislators and concerned citizens would have been put on inquiry. But where the caption goes further and specifies “verdict and sentence” it falls within the prohibition laid down by Judge Green in Hays and any portion of the act beyond this subject and not relating to verdict or sentence is wholly and utterly void. Nor can we cure the defect by saying that it is germane. The charge of the jury is no more germane to verdict and sentence than is the indictment, the voir dire examination of the jury, the opening statement, the closing arguments or any of the other stages during the progress of a criminal trial.
In Tennessee Electric Power Co. v. City of Chattanooga,
A statute reciting the title or substance of a former law and expressly purporting to amend same need not indicate the particular and specific character of the amendment, if the amendment is germane to and embraced in the subject expressed in the original act. (citing cases). However, where the title of the amendatory act recites the title of the act to be amended and also specifies the amendments to be made, the legislation is thereby limited to the amendment specified and anything in the body of the act outside of these is void. (Emphasis supplied).172 Tenn. at 517 ,114 S.W.2d at 445 .
In Armistead et al. v. Karsch et al.,
When the Legislature is presented with a caption which says that it is to amend another Act of the Legislature, of course, the Legislature and those interested have notice of what this other Act is because it is in force and spread on the books, but when this amendatory Act goes further and says that the amendment is only to cover certain specified things this is telling the Legislature that now the sign is pointing out to you a certain specific place or direction and that only such specific things will be done by this amendment. (Emphasis supplied).192 Tenn. at 142 ,237 S.W.2d at 962 .
The Idaho Supreme Court has passed on this precise matter. In Hammond v. Bingham,
In addition to the title stating that I C, § 33-909 is being amended, it proceeds to particularize some, but not all, of the*612 changes . . . When such specifications are made the legislation is limited to the matters specified and anything beyond them is void, however germane it may be to the subject of the original act. (Emphasis supplied).362 P.2d at 1081, 1082 .
The Alabama Supreme Court has held the rule to be that the title of an act which merely purports to amend certain sections of the Code cannot add a new and different subject. Clutts v. Jefferson County Board of Zoning Adjustment,
The Wyoming Supreme Court, in Smith v. Hansen,
On the other hand, we consider the following cases authority for the holding that when a title particularizes the changes which are to be made in an amendatory act, the legislation is limited to matters specified, and anything beyond this limitation would be void regardless of how germane it might be to the subject of the original act. (citing cases from ten jurisdictions, including Hays, supra).386 P.2d at 101 .
In 73 Am.Jur.2d Statutes, § 130, it is stated:
Of course, an act to amend a section of a previous act which contains subjects not expressed in the title of either the amending act or the original act is unconstitutional.
In § 133, of the same treatise, it is said: Moreover, a single statute amendatory of a code may amend some sections, repeal others, and add new sections, provided the act as amended is such as might have been validly enacted in the first instance under the title given the original code or other statute.
Again, the provision with which we deal directing that the trial judge charge on parole eligibility, etc., is not reflected in the 1913 act, body or caption; the 1923 act, body or caption, or in § 40-2707 as it appears in the main body of Tennessee Code Annotated. This being true, we see no escape from the conclusion that this section must be declared to be invalid.
We are cited to Woods v. State,
Reliance is also placed upon Pharr v. Nashville, C. & St. L. Ry.,
Reliance is also placed on Basham v. Southeastern Motor Truck Lines, Inc.,
III.
We further hold that Section 2 of Chapter 163 of the Public Acts of 1973
We have checked the charge given by the trial judges in these cases. In each instance he charged the exact terms of each statute, without comment. We have read each charge, aloud and slowly,' and find that this requires approximately four minutes — four minutes for twelve laymen to understand this technical and confusing statute. And yet we expect jurors to understand this statutory scheme and apply it to a defendant’s liberty based on just four minutes of oral instruction, and a written copy of the charge taken to the jury room, which may or may not be read and which, we submit, is beyond the understanding of the average jury.
A proper consideration of parole eligibility involves, as a minimum, an analysis of regular parole, probationary parole and mandatory parole. It involves a starting point with a “flat release” date, determined by taking the maximum terms of the sen-fence and deducting therefrom all good time and honor credits. Assuming an indeterminate sentence of not less than five or more than ten years, the “flat time” is six years and one month.
But this is only the beginning. The good and honor time credits are credited immediately upon the admission of the prisoner to the penitentiary. At all times thereafter they are subject to being removed in whole or in part for a violation or infraction of prison rules and regulations or if he “otherwise demean himself improperly”, whatever this phrase means. (§ 41-335 T.C.A.). But the jury is not told that on an administrative basis the prisoner can lose all good and honor time. Reverting to the above example, he could lose up to 69 months and yet the jury is not told this. It is led to believe that this 69 months will not be served — assuming it can make the computation above set forth.
And then there are the “incentive”
Parole eligibility comes when the minimum sentence is served less all credits for good and honor time as calculated from the minimum sentence and subtracted from the minimum sentence — but his release is still discretionary with the Board of Pardons and Paroles.
It is obviously impossible for any living human being to compute, prior to verdict, how much time any prisoner will serve and yet this is precisely what trial juries are called upon to do. Otherwise, there is no
Jurors should not be permitted to speculate on the length of sentences, discretionary parole, the accumulation of good and honor time and a whole conglomeration of contingent events which, if they come to pass at all, will come to pass in the future. Very heavily involved is the constitutional right of a defendant to a fair trial.
This is trial “by guess and by golly”, and we will not countenance it by upholding a statute which offends every sense of fairness and every precept of due process.
It tends to make a jury speculate on the length of time a convicted defendant will be required to serve and further tends to breed irresponsibility . on the part of jurors premised upon the proposition that corrective action can be taken by others at a later date. A greater defect in the law stems from the fact that jurors tend to attempt to compensate for future clemency by imposing harsher sentences.
The matter of the future disposition of a convicted defendant is wholly and utterly foreign to his guilt and is not a proper consideration by a jury in determining the length of his sentence.
Chief Justice A. B. Neil, eloquently stated the case in Graham v. State,
The power to pardon, and/or commute a sentence of imprisonment as fixed by the jury, is foreign to the trial of any criminal case. The jury’s exclusive duty to assess the punishment in all cases must be exercised fully according to the provisions of the appropriate statute and as given in charges by the trial judge. They cannot, under any circumstances, consider the power of the Governor to pardon, or the authority of the Parole Board to grant paroles. Nor can they speculate as to what this Court might do on appeal. Gray v. State, [191 Tenn. 526 ,235 S.W.2d 20 ] supra. If the rule were otherwise the verdict of the jury would be mere guesswork. Moreover, in such circumstances, this Court would never be able to decide if the trial judge approved the verdict based on the facts, or on some unaccountable speculation as to the possibility of a reduction of the sentence by the Governor. Both the State and the defendant are entitled to a verdict that is based solely and alone upon the facts of the case and the law as given in charge by the court. Such a trial imposes upon the jury the gravest responsibility.202 Tenn. at 426 ,304 S.W.2d at 624 .
We hold that Section 2 of Chapter 163 of the Public Acts of 1973, which appears as the last paragraph of Section 40-2707 T.C.A. is unconstitutional and void.
We affirm as to James E. Farris since his case is not in the posture for appellate review for the reason above pointed out.
The error which we find in the charge to the jury bears only upon the question of punishment and has no relation to the jury’s finding of guilt or innocence.
To correct this error we reduce the sentence of William Wayne Robinson to three (3) to twenty-one (21) years and that of Roosevelt Lewis to five (5) to fifteen (15) years, and, as thus reduced their convictions and punishments are affirmed. These reductions are to the statutory minimum for their respective offenses. These revisions are subject to the consent of the State. If the State does not consent, their cases will be reversed and remanded for a new trial. Hunt v. State,
This decision will apply to these cases and to all others wherein convictions have not become final on the date of the release of this opinion. Sound considerations of public policy forbid retroactive application. The courts of this state have complied, in good faith, with the statutory mandate. No decision of this Court or of the Court of Criminal Appeals has foreshadowed the result we reach today. Orderly judicial administration is involved and we are not willing to post-review final convictions wherein this statute was charged. The drastic impact of retroactivity is obvious. We, therefore, apply this rule only to this
Affirmed as to James E. Farris; modified and affirmed as to Roosevelt Lewis and William Wayne Robinson.
Notes
.The good and honor time credit on a ten-year sentence is 47 months; on a five-year sentence is 22 months. These credits accrue at the rate of 1 month for the first year, 2 months the second year, 3 months for each subsequent year until the tenth year and four months for each succeeding year — all of which the jury must be charged.
. Id.
. These credits come from participating in an athletic or vocational program.
Dissenting Opinion
(dissenting).
I respectfully dissent from the opinions prepared by Mr. Justice Henry and Mr. Justice Brock. In my view, the Court has departed from well-settled principles, requiring this Court to give every intendment and presumption to the validity of acts of the Legislature, and has stricken a valid criminal procedural statute in reliance upon inapposite authorities and for reasons which I cannot reconcile with sound constitutional theory.
The statute in question, Chapter 163 of the Public Acts of 1973, purported to amend a section of the official code of Tennessee,
The majority apparently recognizes the firm and well-settled rule in this state that when the official code of the state is being amended, a simple reference in the caption to the code section involved satisfies the provisions of the Tennessee constitution in question, Article II, § 17. Pharr v. Nashville, C. & St. L. Ry.,
In the Pharr case, supra, the Court said:
“This is not a case of the Legislature adopting ah amendment to a statute that is not a part of the official Code; but one amending a section of the Code that was formally adopted by an Act of the Legislature. When any section of the official Code is amended the members of the Legislature are presumed to know the nature of the section sought to be amended.”186 Tenn. at 159 ,208 S.W.2d at 1015 .
Likewise, in the Basham case, the Court said:
“That an Act which fails to comply with this constitutional requirement is invalid needs no argument, but it is well settled that a reference in the caption to the section of the Code of Tennessee proposed to be amended is sufficient to comply with the requirements of Section 17, Article 2, of the Constitution. State v. Runnels,92 Tenn. 320 ,21 S.W. 665 ; Gamble v. State,159 Tenn. 446 ,19 S.W.2d 279 ; Texas Co. v. Fort,168 Tenn. 679 ,80 S.W.2d 658 , 659. The Code of 1932 is now the ‘Official Code of the State of Tennessee.’
“Counsel argue at length, and earnestly, that such a reference is uninforming and'‘fails to satisfy the purpose- of the requirement, but this specific question has been too long settled to admit of further debate. In the last case above cited it was said: ‘We understand counsel for appellants to concede that reference to the sections of the Code of 1932 is a sufficient recital of the title of the act to be' amended to satisfy the requirement that the amendatory act shall recite the title of the law to be amended. As said in Gamble v. State,159 Tenn. 446 ,19 S.W.2d 279 , 280, this ‘was long since decided.’ State v. Runnels,92 Tenn. 320 ,21 S.W. 665 .”184 Tenn. at 535-536 ,201 S.W.2d at 680 .
In the present case the caption to Chapter 163 of the Public Acts of 1973 is very brief and simple. It is:
“AN ACT to amendSection 40-2707 Tennessee Code Annotated, relative to verdict and sentence on felony conviction.”
Even a casual examination of the recent acts of the General Assembly will make it clear that when the Legislature is amending an official section of the code, the words “relative to” are used in apposition to and as explanatory of the nature of the code section being amended. That is all that was done here. To me, it violates principles of grammar and syntax, as well as logic, to make the words “relative to verdict and sentence on felony convictions” into an adverbial phrase modifying the verb “amend”, as the majority have done. There was no attempt on the part of the General Assembly to specify in this caption the nature or type of amendment which was being enacted, but the reference was simply to a section of the official code which was under consideration, and the words “relative to verdict and sentence on felony conviction”, preceded as they are by a comma, clearly refer to the nature of the code section.
That code section did, indeed, relate to verdict and sentence in felony cases under the Tennessee Indeterminate Sentence Act, as it had been adopted by Chapter 8 of the Public Acts of 1913, and as amended by Chapter 52 of the Public Acts of 1923 and codified as T.C.A.
Had the General Assembly amended the code section in some particular manner and undertaken to specify in the caption the nature of the amendment,! as by using
With respect to the further argument contained in the majority opinion that the provisions of Section 2 of Chapter 163 of the Public Acts of 1973 are unconstitutionally vague and impossible of application, I simply cannot agree. There is absolutely no evidence in any of the records before this Court that the jury had the slightest difficulty in understanding or applying the statutes in question, and it is clear from listening to the legislative debates on this Act that the General Assembly felt it necessary and proper for jurors to be allowed to have a general understanding of parole procedures.
There had been a long line of cases in this state, as well as in other states, in which jurors had repeatedly asked questions of the trial judge as to the effect of a sentence which they had under consideration.
Prior to the enactment of Chapter 163 of the Public Acts of 1973, it was reversible error, under a number of reported cases, for the trial judge to permit the jury to consider the subject of parole, or the length of time which a convicted defendant might actually have to serve before being released. Thus, in Graham v. State,
It is obvious from the large number of cases on the subject, however, that jurors, in discharging their function of fixing the sentence, have expressed great interest and concern about the matter of paroles and credits against sentences imposed. This has been true in other states as well. See An-not.,
The result of Chapter 163 of the Public Acts of 1973 was simply to make it permissible for jurors to consider materials which this Court had previously deemed inappropriate for them. This, however, does not make the statute in question unconstitutionally vague or impossible of application. Whether the decision of the General Assembly was or was not a wise one, or consonant with optimum criminal procedure, is a wholly different question from the constitutionality of the statute. It is obvious that the General Assembly did not intend for the jurors to be required to go into the intricate details of the parole system, as argued at length in the majority opinion, but that it did wish them to have some general understanding of parole eligibility.
Tennessee is one of the states admitted to the Union early in the history of this country, and at a time when memories of colonial abuses were fresh in the minds of the citizenry. The Tennessee Constitution, Article I, Section 6, provides:
“That the right of trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors.”
Section 19 of Article 1 contains declarations concerning freedom of speech and of
. . and in all indictments for libel, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases.”
In accordance with the constitutional provision just cited, a large number of cases in this state have held that in a criminal case, the jury are the exclusive judges of the facts, and that they are also the judges of the law of the case. The court is said to be the proper source of the law upon which the jurors are to draw, and in one of the leading cases the somewhat quaint phrase was used that:
“The court is a witness to them what the law is . .” Ford v. State,101 Tenn. 454 , 458,47 S.W. 703 , 704 (1898).
It has been held to be reversible error for the judge to instruct the jury that they could not disregard the law as he gave it to them. Scott v. State,
Article VI, § 9, of the state constitution directs that:
“The Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.”
Criminal procedure in this state has, from the beginning of statehood, been prescribed by a combination of statutory provisions and judicial decisions. Both the courts and the legislature have long acted in the field of criminal procedure, to the point that it cannot with accuracy be said that either has pre-empted the subject to the exclusion of the other.
“On the trial of all felonies, every word of the judge’s charge shall be reduced to writing before given to the jury, and no part of it whatever shall be delivered orally in any such case, but shall be delivered wholly in writing. Every word of the charge shall be written, and read from the writing, which shall be filed with the papers, and the jury shall take it out with them upon their retirement.”
It is further prescribed in
Having its origin in the Acts of 1877, Chapter 85, is
Of more recent vintage, a provision of the 1971 Drug Control Act,
Accordingly, there is nothing novel or extraordinary in the enactment by the General Assembly of a statutory provision governing the form or content of instructions to be given by the trial judge to the jury in criminal cases. Such statutory provisions have generally been held to be valid and imperative, rather than merely directory, although, of course there may be circumstances under which failure to comply with a statutory provision could be considered harmless rather than reversible error. See Keith v. State,
At least since the enactment of Chapter 23 of the Public Acts of 1829, juries in the State of Tennessee have been authorized to fix punishment in felony cases, as well as to determine guilt or innocence. By Chapter 8 of the Public Acts of 1913, however, this function was taken from the jury and vested in the trial judge in all cases falling within the purview of the Indeterminate Sentence Act embodied in that chapter. Sentencing by the judge, rather than the jury, continued until 1923, when by Chapter 52 of the Public Acts of 1923 the function of fixing the time to be served under the indeterminate sentence law was returned to the jury. That law, codified as
In my opinion, Chapter 163 of the Public Acts of 1973 is consistent with the judicial history of this State, and simply represents a policy decision by the General Assembly contrary to that which had previously been made by the courts. So long as the jurors are the judges of the law as well as the facts, and so long as the jury has the function of fixing the sentence of one accused of crime, then in my opinion, it is within the legislative prerogative to authorize the jurors to consider parole eligibility.
In my opinion the judgment of the Court of Criminal Appeals in each of these cases should be affirmed.
I am authorized to state that Mr. Justice COOPER joins me in this dissenting opinion.
. By Chapter 376 of the Public Acts of 1975 this Court, with the aid of an Advisory Committee, has been authorized to promulgate Rules of Criminal Procedure in a manner similar to that followed in the promulgation of the present Rules of Civil Procedure. Preparation of such Rules is now in progress.
Lead Opinion
OPINION ON PETITION TO REHEAR
Both the petitioner and the State have filed petitions to rehear. We respond first to the State’s petition.
The State takes the position that the thrust of our opinion was to preclude the trial judge from charging Section 1 of Chapter 163 of the Public Acts of 1973. This is an erroneous interpretation of our holding. This section remains intact.
We dealt only with so much of Section 2 of Chapter 163 of the Public Acts of 1973 (
The State’s petition complains of the action taken in State v. William Wayne Robinson and State v. Roosevelt Lewis, the companion cases which were consolidated with Farris for the purpose of their consideration by this Court.
The thrust of the State’s petition in this regard is that since the Court found that “the charge to the jury bears only upon the question of punishment and has no relation to the jury’s finding of guilt or innocence”, the proper relief should have been a remand “only for a determination of punishment.”
We sustain the State’s petition in this regard.
The first case bearing upon this question is Corlew v. State,
[T]he State has an equal right with the defendant to have the jury fix the term of imprisonment. Since the State may feel that upon reversal and new trial a verdict might be obtained on conviction of defendant for petit larceny properly fixing his imprisonment at a longer term than the minimum of one year provided by statute, we feel that the action heretofore indicated should not be taken except upon the State’s consent.181 Tenn. at 230 ,180 S.W.2d at 903 .
In Forsha v. State,
It is the theory of both Corlew and For-sha that where the indictment embraced several offenses of different grades and the accused was convicted of the greater, the jury by its verdict, has also convicted him of all lesser offenses.
Facially, Forsha contains no indication that the reduced sentence was conditioned upon the consent of the State; however, a subsequent case, State v. Odom,
The State, in its answer to Forsha’s petition to rehear, expressly approved the action of this Court in reducing the grade, and called attention to Corlew v. State,181 Tenn. 220 ,180 S.W.2d 900 .200 Tenn. at 234 ,292 S.W.2d at 24 .
In Odom the Court recognizes the fact that it does not affirmatively appear in Waldie v. State,
In Huffman v. State,
The Court concluded that the judgment should be modified and the case remanded for the purpose of having a jury fix the
In Huffman, the Court did not condition its action upon the acquiescence of the State; however, it is again pointed out that the Advocate General, representing the State, urged the Court to treat the verdict as being absolutely valid so far as it convicts the plaintiff-in-error of the offense of assault and battery, the lesser included offense. There was, therefore, no occasion for conditioning the action upon the State’s approval.
Huffman stands as authority for the proposition that bifurcated trials are permissible under the Constitution of Tennessee since
Guidelines for the sentencing hearing wherein the only question for the consideration of the jury is the extent of the punishment are established as follows:
Thus both sides may introduce proof as to how the assault was committed, the injuries, aggravation or mitigation, etc., so that the jury may properly fix the penalty. The trial judge should charge the jury that the plaintiff in error is guilty of assault and battery and that the fixing of the punishment is all they are to do.200 Tenn. at 498 ,292 S.W.2d at 743 .
The Huffman guidelines are specifically approved in Hunter v. State,
Other cases supporting a correction or modification of a judgment and its reduction to the statutory minimum, conditioned upon the State’s consent, and in its absence a remand for the fixing by a jury of a sentence within the statutory limits are Whitsett v. State,
Adhering to the principles so firmly established in these cases, and responsive to the State’s well-considered petition to rehear in this regard, we recede from our original opinion in this particular, and modify it so as to provide that if the State does not consent to the reduction of the sentences of William Wayne Robinson and Roosevelt Lewis to the statutory minimum for their respective offenses, their cases will be remanded for a new trial solely on the issue of punishment, in accordance with the guidelines provided by Huffman v. State,
All other questions raised in the State’s petition to rehear were considered in the preparation of the main opinion and have been reconsidered in the light of the petition to rehear and are respectfully overruled.
Counsel for James E. Farris has also filed a petition to rehear taking the Court to task for the holding that error was not assigned on the basis of the charge to the jury on parole considerations.
The stated ground for the petition is: Petitioner did in fact raise the same objections, assign as error, and argue the same point of law followed by this Honorable Court in modifying and/or reversing the convictions of fellow petitioners William Wayne Robinson and Roosevelt Lewis.
We quote from the petition for the writ of certiorari filed in behalf of James E. Farris as follows:
*622 The trial court erred in instructing the jury regarding the doubling of the minimum punishment, said law which authorizes such a change (sic) is unconstitutional.
While counsel charges the Court with a “strained interpretation” of this assignment it would be both strained and strange to construe the assignment so made as being directed at any portion of
This Court operates on the basis of errors assigned for our consideration and we have neither the disposition nor the duty to search the record and decide cases and controversies on the basis of unassigned error.
The petition of James E. Farris is respectfully overruled.
In order to clarify further our holding in this case we point out that the fact that a trial judge, prior to the release of our opinion, may have charged the jury on parole considerations does not necessarily mean that the error is reversible or that we will follow the Farris procedure. In Rogers v. State,
But former decisions cannot be considered as a criterion or authority for thus mitigating a sentence fixed by the jury and trial court in a given case. Every case must be governed by its own facts, and a decision made according to the demands of law.196 Tenn. at 267 ,265 S.W.2d at 561 .
In other words, “every tub must stand on its own bottom.”
We do not intend to dilute the meaning and significance of the Court’s holding in this case by these comments. Where the prohibited charge is given after the release of the main opinion, the error is reversible. The rule we announce will be applied along with all other relevant criteria in all cases arising prior to its release.
In order to correct an inadvertent error appearing in the main opinion, the sentences are reduced as follows:
William Wayne Robinson to not less than three (3) years nor more than three (3) years; Roosevelt Lewis to not less than five (5) years nor more than five (5) years.
Justices Cooper and Harbison continue to dissent from the main opinion and Justice Brock continues to adhere to the position taken in his concurring opinion; however, all members of the Court concur in the legal conclusions articulated in this opinion on the petitions to rehear.
All concur.
. See Sec. 9 of Article 1 of the Constitution of Tennessee.
Concurrence Opinion
(concurring).
I concur in the decision of the Court which affirms the conviction of Farris and modifies the sentences of Robinson and Lewis. I also concur in the holding of the Court that so much of Section 2 of Chapter 163 of the Public Acts of 1973 (
Further, it is my opinion that, in addition to violating Article II, Section 17, of. the Constitution of Tennessee, the mandate of Chapter 163 that trial judges charge juries the statutes relating to parole eligibility, etc., also violates Article II, Sections 1, 2, of said Constitution because it amounts to an attempt by the legislature to exercise judicial powers. Williams v. State,