*1 Tennessee, Petitioner, STATE HUDSON, Respondent.
Joe Eddie
Supreme Court of Tennessee.
Feb. 1978.
OPINION BROCK, Justice. granted
We certiorari in this case to con- which arise in the recurring problems sider statutes, two of our criminal application of T.C.A., viz., (using a firearm 39-4914 § T.C.A., felony) the commission of a a (carrying 39-4901 § armed), to the situation with intent employs a fire- presented when an accused arm to commit an assault with (T.C.A., 39-604) or an commit murder § (T.C.A., 39-3901), both, or § single victim on a occasion. against single a case, George Mr. Thom- The victim in this Stewart, emerged in Mem- from bank phis payroll cash bag containing $5,150.67. He entered his in the amount of on the seat placed money bag truck and next which time the defendant to him at door, appeared pointed at the that he hand over the him and demanded into the truck bag. The defendant reached stepped he then money bag; and took the distance, back a short fired a .38 caliber leg into the victim’s and fled. bullet separately indictеd and Defendant following trial of the of- convicted one indi- punishments fenses and received cated:
(1) Robbery by deadly weap- the use of a on, T.C.A., years imprison- 39-3901—20 § ment;
(2)
with intent to commit murder
Assault
T.C.A.,
degree,
39-604 —im-
§
not less than one nor more
prisonment for
years;
than five
(3)
committing
Use of
firearm in
robbery and assault
felony, to wit: armed
murder, T.C.A.,
with intent
for not less than
imprisonment
§ 39-4914—
years;
than five
one more more
weapon with
(4)
dangerous
Carrying
T.C.A.,
armed,
39-4901 —im-
workhouse
for six months
prisonment
Gen.,
Grunow,
Atty.
A.
Asst.
Robert
and a fine of $250.00.
Gen.,
Jr.,
Ashley,
Atty.
(R. A.
Nashville
The sentences for the
§§
Nashville,
counsel),
petitioner.
for
convictions were set to
39-3901 and 39-4914
Sabella,
for
Memphis,
respon-
consecutively,
run
Anthony J.
concurrently.
39-4901 conviction
dent.
person
“Any
employs
Court of Criminal
affirmed
who
any firearm of
armed robbery
convictions for
and as-
character as means of committing
sault with intent
commit murdеr in the
or
escaping
from
of a
degree
but reversed and dismissed
felony, and on
of first
the other two convictions
the theory,
punished by imprisonment
shall be
they were
apparently,
merged
into the
penitentiary
(1)
not less than one
year
*3
convictions
and
for
assault.
(5)
nor
years,
morе than five
and on
pun-
conviction of second offense shall be
in
The State concedes
its brief in this
in
by imprisonment
penitentiary
that
as the conviction
ished
the
insofar
“for use
felony”
(5) years
of a firearm in the commission of a
for not
five
less than
nor more
is based
the defendant’s usе of the
(10)
judge
than ten
The trial
years.
may
committing
in
the robbery it cannot
suspend
part
all or
the
his discretion
of
stand because the former offense “merged”
penalty imposed by this section.
offense,
insists,
into the armed
but
period
imposed by
“The
of confinement
nevertheless,
the
that
conviction “for use of
any
this section
be in addition to
shall
a felony,”
firearm the commission of
is
by law
penalty provided
punishment
as
valid because the defendant also
the
used
any
felony, and shall run
other
con-
pistol in the commission of the offense of
secutively,
conсurrently,
and not
with
assault with
intent
murder in the
period
other
of confinement.”
degree,
separate
and distinct of-
purpose of
The obvious
this enact
the use
fense into which
of a firearm of-
provide
punishment
ment was to
additional
merge.
fense does
not
State also con-
dаnger-
tends that the offense of
for one who
a firearm as a means
employs
weapon
ous
intent
to go
felony.
armed does
It
committing
could have been
thus,
and,
merge
not
into the other offenses
legislature
if the
easily
achieved more
had
“
that
the
for that
language
.
nоt included the
.
.
is
”
stand.
.
.
.
felony,
certainly
of a
include
necessary
language
to
that
Black, Tenn.,
In
State v.
S.W.2d 913
punish-
such additional
provide
in order to
(1975),
many prior
this Court reviewed
deci-
interpretation to
give
ment. To
a literal
dealing with problems
sions of this Court
results,
course,
quoted
the
phrase
merger
jeopardy,
double
of offenses and
offenses,
statute
creates and
conclusion that
this
identity of
and concluded:
felony
separate
and
defines a new
“We do not
the formulation
the
find
felony which is
“principal”
distinct from the
words,
catch
various ‘tests’ into
such аs
of a firearm. But
by
committed
means
‘same
or ‘same
transaction’
evidence’ to
helpful. As
such a
would result in a stat-
particularly
previously
construction
stated,
requires
applied
each case
close and care-
as the legisla-
ute that could not be
involved,
аnalysis
ful
of the offenses
the
running
ture intended without
afoul of the
crimes,
the
statutory definitions
jeopardy prohibitions
double
our state
and the
legislative
particular
intent
facts
Separate
and
convic-
federal constitutions.
and
dict, been should dangerous weapon (pistol) with the construction compliance armed. 39-4901. we set out above. with 39-4914, which have 420 that, case, under the facts of
We hold this ment of the triаl respect court with to the separate is one which is this offense offenses of armed robbery and carrying a from the offenses of armed with intent to with intent murder and assault is affirmed. Costs incurred in this Court degree by means of are equally against taxed the State and the State, 77, 172 firearm. Grindstaff Tenn. defendant. 309, 81, (1937); 110 310 Cole v. S.W.2d State, supra. statutory definition of FONES, HARBISON, JJ., COOPER and dangerous weapon1 offense of a re- concur. quires proof of a fact which each of the not, and, versa; vice other statutes does HENRY, J., concurring part, C. dis- hence, it is a and distinct offense senting part. аccording the rule approved by supra. See also HENRY, Justice, concurring Chief S., Blockburger v. U. 284 52 U.S. part, dissenting part. S., (1932); v. U. L.Ed. Gore I opinion concur in the of the Court ex- 2 L.Ed.2d cept that I would affirm the Court Crim- (1958). is it a lesser offense Nor included inal charge dismissal of the within either of the other two offenses. of carrying pistol in violation of Sec. State, supra; Grindstaff v. Arterburn v. T.C.A. This is “white hot” State, 216 Tenn. S.W.2d *5 from overuse. State, Tenn.Crim.App., v. 455 Carr S.W.2d punished Petitioner has been adequately (1970), holding contrary, 619 to the is no First, punishment for this offense. his was
longer authority. This offense was com- enhanced, the under stаtute. pleted both before and after the other of- Second, punishment his was enhanced un- Parker, fenses were committed. 81 T.C.A.; third, and der Sec. he was judgment Tenn. 225 convicted of an assault with intent to com- of charge Court Criminal on this is pistol. mit murder with the same A funda- reversed and that of the trial court reinstat- regard mental for fairness demands that a ed. penalty be public fourth exacted. The This cause remanded to the trial court policy already fully has been vindicated. with instructions to vacate good purpose by No would be served respect enterеd with to the convictions for fourth pub- conviction based identical assault with intent to commit murder in the policy lic considerations. degree using a firearm in com- Quite aside from these evident and, thereof, considera- mitting a in lieu I play, tions of fair do not believe this enter for assault may jeop- stand under the double degree commit murder by ardy clause the state or means of a firearm and to revise the of federal constitu- sentence, conviction, view, judg- my as hereinabove set out. The tions. This must “Any any person carry “Any person guilty 1. who shall manner of such offеnse shall be whatever, armed, indictment, any subject presentment with the intent to or and on razor, dirk, fifty bowie knife or other knife of like conviction shall be fined not than less size, form, cane, shape pick, sling ($50.00) or ice sword dollars nor more than one thousand shot, brass-knucks, stiletto, blackjаck, Spanish ($1,000), imprisoned county dollars pen pistol gun, jail, imprisonment only or a fountain or or like instru- in the discretion of the containing firing pin capable court; provided, give good ment of shoot- the defendant shall ing gas pistol cartridges, any pistol costs, fine, security tear or or or and sufficient for all the whatever, any army except any jail revolver kind of that fees accrued virtue of navy openly pistol which imprisonment.” or shall carried his hand, dangerous weapon, or other shall of a misdemeanor.
421
Oklahoma,
682,
I
quotation
fall under Harris v.
433 U.S.
advert tо the
from Brown v.
2912,
1054,
Ohio,
2913, 53
supra,
L.Ed.2d
1056
and apropos
S.Ct.
thereto would
point
Court,
just
out
(1977),
proof
wherein the
from In
of
quoting
auto theft
necessarily
would
make out a case
Nielsen,
672,
joyrid-
re
131 U.S.
9 S.Ct.
Hans
ing, so
would armed
establish
(1889),
said:
L.Ed.
carrying
pistol.
The evidence
person
has been tried and con-
[A]
[who]
prove
needed to
assault murder and
which
victed
a crime
has various inci-
the robbery necessarily encompassed the
it,
included in
.
cannot be
dents
proof that
defendant was
time
for one
those inci-
a second
tried
with intent to
armed.
being
put
without
twice
dents
case, therefore,
This
Blockburger
fails the
for the same offense.
test.
Ohio,
The recent case
Brown v.
State,
argued by
and asserted
For it is
not the case
“each
requires proof
of an additional
majority
As the
said in
supra, at
U.S.,
fact which the other does not.”
919:
invariably
.
.
. As is
true
at 304
*6
each
requires
close and
offense,
greater
and lesser included
analysis
involved,
careful
of the offensеs
joyriding—requires
lesser
no
offense —
statutory
crimes,
definitions of the
beyond
required
proof
the legislative intent and the particular
greater
conviction of the
theft.
—auto
facts and
(Emphasis sup-
circumstances.
defi-
greater
therefore
plied).
purposes
nition
“same”
dоuble
application
of these factors in the
any lesser offense included in
context
requires
of this case
a dismissal of
(Emphasis
2226;
it.
supplied). 97
the charge
carrying
dangerous weapon.
Blockburger, since supra, under its test proof require
each case must
does not. not believe that
I do an
used in or in an enhanced is a crime un-
assault must Blockburger.
der be borne mind test commands ” proof the other require “each offense
does not.