State v. Seagraves

possessor of the lower lands. Tyrus party See anees which the situation of the Co., Kan. City, Ft. S. might reasonably & M.R. 86 S.W. him require to use. Jenkins, Tenn. 579 Gregory v. here, In Butts as the features of the 665 S.W.2d 397 (Tenn.App.1983);Slatten v. appellants’ work an in- construction were Mitchell, 124 (Tenn.App.1938) S.W.2d 310 tervening heavy cause to the and unusual and Woodlawn Memorial Park Nash by rainfall. This factor was found ville, Co., Inc., Inc. Lv. & N Railroad proximate court to be cause of the F.Supp. (D.C.Tenn.1972). flooding plaintiffs’ property of the damage thereby. caused equally It is well-settled that “a wrongful interference with the natural preponderate The evidence does not drainage of causing surface injury water against findings of the trial court adjoining landowner constitutes an ac We, there is no reversible error of law. tionable nuisance.” City Butts v. South therefore, judgment affirm the of the trial Fulton, 565 (Tenn.App.1977). S.W.2d 879 court. Nashville, See also City Dixon v. Costs of this are taxed to the S.W.2d 178 (Tenn.App.1946). Also a nui appellant. This cause is remanded to the “anything sance is annoys or dis trial judg- court for enforcement of the turbs the free use of property, one’s or ments and collection of costs. which renders ordinary physical its use or occupation uncomfortable.” Caldwell v. SANDERS, (E.S.), FRANKS, J., P.J. Products, Inc.,

Knox Concrete concur. 5 (Tenn.App.1964). Generally, a nuisance depend upon

does not negligence although

negligence may exist. The nuisance con

sists of the harmful danger effects or the thing. of the Llewellyn See City

Knoxville, 232 S.W.2d 568 (Tenn.App.

1950).

We are of opinion and hold that approval design acceptance of a Tennessee, Appellee, STATE of drainage system by municipality does not absolve a defendant from liability where it preponderance demonstrated SEAGRAVES, William Therrell injury evidence that would not have Appellant. occurred but for the activities of the defen Tennessee, Court of Appeals Criminal

dant. Such the case here. at Jackson. regard With to the “Act of God” defense, we Feb. 1992. it is inapplicable to the case at hand. An “Act Appeal Permission for Leave to clearly Butts, God” is supra. defined in 4,May Denied 1992. In Butts it is said:

Any or casualty misadventure is said

to be caused the “Act of God” when it

happens by direct, immediate, operation

exclusive of the forces of na-

ture, uncontrolled or uninfluenced

power of man and without human inter-

vention. It must such character prevented

that it could not have been or

escaped by any from foresight amount of prudence, any appli- the aid of Burson, Atty. Report- Gen.

Charles W. & er, Atty. Gen., Perry, Joel W. Asst. Nash- ville, Radford, Atty. “Gus” Dist. Robert Gen., Overton, Jr., Huntingdon, John W. Gen., Savannah, Atty. Asst. Dist. Eleanor Cahill, Gen., Huntingdon, Atty. Asst. Dist. appellee. Jeffery Fagan, Defend- W. Asst. Public er, Camden, appellant.

OPINION JONES, Judge. appellant, William Therrell Sea-

graves, involuntary man- was convicted of slaughter by jury peers. of his Since July was committed crime serve sentenced the (5) years Depart- more five than ment Correction. presented three has

issues for He contends that review.. Tenn.R.App.P. evidence contained in the record is insuffi- been for review. cient, 13(b); 52(b). law, as a support matter of his Tenn.R.Crim.P. conviction,1 Goins, (Tenn.1986); the trial court committed error (Tenn.Crim. prejudicial Maynard, 629 S.W.2d 911 denying dimensions his Harless, App.1981); 607 S.W.2d motion to dismiss the State v. indictment ground (Tenn.Crim.App.1980).4 492 charged the indictment an incorrect statute,2 and the trial court committed er- 13(b),Tenn.R.App.P., Rule mandates that prejudicial ror of denying dimensions in his appellate courts determine whether the tri judgment motion for acquittal following appellate al court have sub court the State’s case-in-chief.3 These issues are ject-matter jurisdiction of the matter devoid of merit. controversy. part: “The rule states appellate consider court shall also whether appellant

The record reflects that appellate jurisdic the trial and court have degree was tried for the offense of second matter, subject tion over the whether previously stated, murder. As ” presented not In for review.... Scales convicted the involuntary man- Winston, 952, (Tenn.App. 760 S.W.2d 953 slaughter, a lesser included offense. 1988), Appeals the Court of “It observed: record reflects that the statute of limita- duty any is the to court determine the expired tions prosecution had before the question jurisdiction of its on its own mo for this offense was commenced. Conse- tion if the issue is not raised either of quently, question determinative parties, any judgment inasmuch as ren whether the trial subject-matter court had jurisdiction nullity. dered without is a jurisdiction of this offense. Since this is- Lovell, 560, 21 Tenn.App. Ward v. sue parties, was not raised it is (1937).” S.W.2d 759 In County Shelby appropriate for this Court to determine 410, 411, City Memphis, 211 Tenn. may whether consider the issue sua 291, Supreme S.W.2d our sponte. If question this is answered in the sponte judgment Court sua reversed the affirmative, this Court must further deter- appeal trial court and dismissed the mine whether failure to because the Court found that prior trial, raise this issue to include the subject-matter jurisdic court did not have issue in trial, his motion for a new tion. present this issue for review this Court constituted a waiver of the issue. 13(b), Tenn.R.App.P., Rule provides also appellate “may that an in its discre-

I. order, among tion consider other issues in appellate (1) While generally review is prevent other reasons: to needless liti- presented review, limited to the gation, (2) issues prevent to injury to the interests courts public, (3) State are em prevent prejudice powered to consider issues which judicial process.” addition, have not State, 1. There is App.1974); sufficient evidence contained in the Crim. McCracken v. support finding by 1972). record (Tenn.Crim.App. rational trier of S.W.2d Beal, guilty fact that the (Tenn.Crim.App. 614 S.W.2d manslaughter beyond 1981). a reasonable doubt. 13(e). Tenn.R.App. 3. This issue has been waived. The charged 2. The indictment offense of murder failed to stand on the motion. He degree. alleged second the offense was evidence after the trial court ruled State, "in violation of Tenn.Code Ann. 39-2-211." merits of the § motion. Mathis v. (Tenn.1979); Smith, Because the offense is to have occurred actually (Tenn.Crim.App.1987). the offense was 735 S.W.2d a violation of (1975). Tenn.Code Ann. 39-2403 Neverthe- less, properly the trial court denied the motion. 4. This was the rule before the enactment of the The reference to a code section is deemed to Appellate Tennessee Rules of Procedure. See surplusage; State, wrong Manning (Tenn.1973); and the insertion of a code 500 S.W.2d 913 State, (Tenn.Crim. section does not render the indictment invalid. Johnson v. 580 S.W.2d 789 State, (Tenn. 1978). App. Cole v. 52(b), Tenn.R.Crim.P., provides clearly this A for a time conviction barred crime time, may plain Court notice error rights “at violates the ac- constitutional though even raised the motion for a cused. assigned

new trial or as error on ... fail This Court concludes where necessary justice.” to do substantial ure of raise this issue (Tenn.1984); Ogle, See State v. 666 S.W.2d 58 to trial did not constitute waiver ach Ve issue.5 (Tenn.1973); State, 3 Herron v. Tenn.Crim. App. 456 S.W.2d 873 III. summary, is re Court The in failure to include an issue the quired by law to determine the whether may motion for a new trial result trial subject-matter jurisdiction court had 3(e) Tenn.R.App.P. of waiver the issue. question. offense in The word provides part: in cases a all tried “[I]n “shall”, rule, used in a is when statute or jury, no issue for review shall be equivalent the of the word “must.” Home predicated upon error in the or admission Telegraph v. Mayor City Co. Council evidence, jury exclusion of instructions 770, Nashville, 1, 14, 101 118 Tenn. S.W. of 773 refused, granted jurors, or misconduct of (1907). Furthermore, ques the issue in counsel, parties or action other commit record; plain tion is error on the face of the occurring during ted or the trial of the necessary and the resolution of issue case, ground upon other which a new justice. to do Finally, substantial this is specif trial is unless the same was sought, type

the of issue an should court trial; ically in a for a stated motion new consider in the its exercise of discretion. as otherwise such issues will be treated added). (Emphasis As rule waived.” II. states, issues waived are those defense, objec failure to raise in granting which will result of a new in request prior tion or to trial result may Accordingly, trial. this Court has held that the waiver of an issue. Tenn.R.Crim.P. failure include issue to an which will However, 12(e). exceptions to there in result the dismissal a conviction in the of question this harsh rule. The of whether in motion a new trial does not result subject-matter jurisdic court had trial Dodson, the issue. waiver any during time may tion be noticed at 778, (Tenn.Crim.App.1989) 780 780 S.W.2d pendency proceedings. Tenn. evidence); (sufficiency of Winston, 12(b)(2). R.Crim.P. See Scales v. (Tenn.Crim. Davis, 206, 207 748 S.W.2d (“[t]he subject- 953 issue 760 S.W.2d at (sufficiency App.1987) of indictment and any in jurisdiction matter can be raised Durham, sufficiency evidence); Stillwell, anytime”). court at State v. 815, 1981) (Tenn.Crim.App. 614 S.W.2d 816 244, 267, N.J.Super. 418 271 175 A.2d evidence). A (sufficiency of favorable Zamora, (1980), People 18 Cal.3d resolution of this issue will result 538, 547, Cal.Rptr. P.2d 75 prosecution against dismissal of the specifically it was held that appellant. issue not waived the failure to raise “is Moreover, stage.” This is of the that the issue pleading it at Court (Tenn. controversy was the fail- 491 S.W.2d not waived Veach v. 1973), appellant to include the issue Supreme Court said “a constitu ure our may his motion a new question tional raised at time.” trial. be consent, ques appearance, plea, court silence 5. If this Court concluded that issue 12(e), County Shelby pursuant City Tenn. or waiver. See tion R.Crim.P., waived 292; saying Memphis, Tenn. at 365 S.W.2d at it tantamount would be Co., subject-matter juris Freight Caton v. Pic-Walsh Tenn. that an accused can confer by failing Brown v. upon trial to raise the 364 S.W.2d diction Brown, 600, 618-619, course, elementary Tenn. issue to trial. Of jurisdiction party on a trial cannot confer (12) except as IV. less than twelve months provided. otherwise County While confined Henderson Jail, seen, As the statute of limitations told can law enforcement applicable to the offense officers that he to a wanted confess manslaughter eigh- expired approximately “bothering crime that had been him for a (18) years prior teen to the commencement long time.” The told the officers appellant. son, prosecution against he had suffocated his infant Wil- Moreover, allege or make Jr., State did not Seagraves, liam Therrell 10th on the an effort to establish the statute of day November, 1968. The limitations had been tolled based subsequently in- denied that he killed his following conduct the commis- son. fant sion offense. See State v. 7, 1988, On November an arrest warrant Davidson, (Tenn.1991); appellant by issued for the General Tidwell, 379, 389 County. Sessions Court of Carroll (Tenn.Crim.App.1989). charged of- warrant with the degree. fense of murder in the second V. ground for the was issuance warrant principle is an elementary of law appellant’s admission that he killed had felony, accused for a that an who is tried County his infant son in The 1968. Carroll by which is not barred the statute of limita Jury ap- subsequently Grand indicted the tions, may not be of a convicted lesser pellant for the offense of murder in the by offense is barred included which degree. second State, Hickey statute. v. Tenn. alleged When the is to have (1915); State, Turley 174 S.W. question, committed the in offense there (3 Heisk.) Hix, Tenn. (2) year was two statute of for limitations 22 (Tenn.Crim.App.1984). See prosecuting involuntary the offense of Landis, 177 Tenn. manslaughter. statute, applicable The (1941). As Supreme our Court has (1975), TenmCode Ann. 40-202 codi- later § observed, prevents this rule a district attor 40-2-101(b) fied as Ann. TenmCode § ney general from seeking indictment for (1982), provided part: in grade offense, higher of which is not Prosecutions for punishable offense limitations, by barred the statute of for the by imprisonment in penitentiary specific convicting purpose of the accused punishment expressly when the is limited offense, grade of a lesser of which is (5) less, years five shall com- by the limitations. barred statute of Lan (2) years menced within two next after dis, 1034; Tenn. at S.W.2d at the commission of offense.... 50 Tenn. at 14. Turley, punishment The for man- State, Turley supra, In slaughter peniten- was “confinement in the and tried for the offense of was indicted tiary for not year less than one more nor in commit murder the first de- assault to (5) years.” than five TenmCode Ann. gree. alleged offense The was have (1975), 89-2411 Tenn. later codified as § on March 1863. The been committed addition, Ann. 39-2-223 In Code § Term, April indictment was returned at the co- Tenn.Code Ann. later § years than after more two the of- dified as TenmCode Ann. 40-20-103 jury committed. The found fense was (1982), provided: assault, guilty Turley simple of a mis- was demeanor, punishment the minimum which was barred the statute Whenever imprisonment reversing Turley’s one penitentiary for of limitations. con- viction, (1) year, jury Supreme of Court stated: “A con- but misdemeanor, charged punishment, lesser viction and offense merits a proven have been more than jury may punish confinement in committed finding county jail any period year for one before the of the bill of or workhouse indictment, nullity.” plies is a Tenn. at 13. where the lesser offense included (Emphasis added). The correctness of this felony, In the and the statute has run. principle acknowledged law was case, present judge not find did Landis, supra, Hickey and that the evidence conviction warranted a supra. greater agree offense. with We the trial court that the evidence was Hix, appel- supra, In State v. one of the sufficient to sustain a conviction aggra- lants was indicted for the offense lesser included offense. count the indict- vated assault one ment. The to have offense The cannot be to have said January 1981. been committed on pleading waived the statute grand jury indictment was returned limitations had not issue. February convicted 1982. until proof ruled after all of battery, of assault in- appellant had committed lesser was harred the statute limitations. cluded is out- offense. Since offense colleague, Dwyer, a My Judge Robert K. four-year period, side the we reverse panel judice, member the case sub the judgment dismiss of the trial court as held that conviction one_ (Citations omitted). to count Judge Dwyer, writing ruling, void. seen, opin- As can be authors of “Likewise, court, a unanimous stated: Hix, Turley, ions did Owen Hix one of Judy conviction under count explain why a conviction a timed barred indictment for the offense of lesser “nullity” offense is a or “void”. battery misdemeanor is also assault for a void. Where a defendant is indicted misdemeanor, felony and is that includes a VI. acquitted felony of for but convicted Assembly When creat the General misdemeanor, he is to a dis- entitled prosecution on the of ed time limitations charge if the more offense was committed crimes, certain enumerated it declared that year prior finding

than one to the of the prosecute not an for the it would individual at (Emphasis indictment.” 696 S.W.2d 25. expi crimes commission of these after the added). period. designated Tenn.Code ration Owen, George 1991 WL 40-2-101, seq. People v. Ann. et See Nashville), (Tenn.Crim.App.1991, a 159919 611, 378, McGee, 1 36 P.2d Cal.2d charging ap- presentment was returned (1934). Concomitantly, right a substantive pellant aggravated with counts two of prevented created the State which The rape. alleged offenses were to have prosecuting citizens for an offense from prosecu- occurred and 1984. The is barred the statute of limitations. July was not commenced until of 1989. tion 376, State, Ala.App. v. 160 So. Spears jury aggra- convicted the (1935); People Morgan, 728-729 v. rape. battery aggravated vated sexual Cal.Rptr. Cal.App.3d 866-867 contended that his conviction State, v. 417 So.2d Tucker aggravated sexual battery was barred (Fla.Dist.Ct.App.1982); v. Still Court, by the statute of limitations. This well, A.2d N.J.Super. holding appel- the offense which the right an abso This creates had lant stood convicted been barred prosecution criminal lute bar to the of a limitations, statute stated: expiration period offense after the is clear in Tennessee that when limitations, designated statute by the felony defendant indicted for 271; Stillwell, deprives 418 A.2d at and it acquitted includes a misdemeanor and is subject-matter jurisdiction. the court of misde- felony but convicted of the 728-729; State, People Spears v. 160 So. at meanor, discharge if entitled to he is 866-867; Cal.Rptr. Tuck Morgan, 141 at v. more than the offense was committed State, 1012; at v. in- 417 So.2d year prior finding of the er one to the dictment_ Stillwell, reasoning ap- 418 A.2d at 271-272. This sound VII. running been as the statute charge had limitations rendered In jurisdictions adhere which to the unactionable. The time when an of- doctrine, lesser included offense the indict alleged fense not be was committed need ed offense embraces the lesser includ indictment, but it is essential ed great [that] offenses that are actionable. The proved must be on the trial that it was er offense does embrace a lesser includ period pre- ed committed within the which is offense barred the statute State, against prosecution scribed bar Spears limitations. as a So. at (indicted done, 728. People prosecu- for it. If this is not Morgan, supra, Because, murder and Why? convicted of tion fails. when the manslaughter, which period was barred elapsed, of limitation the act limitations). statute of punishable Still ceased to be a offense. No well, (accused supra, indicted for murder pronounce court was then authorized to jury by the battery, misdemeanor, prosecution against him, the court said: Spears the fense was barred by the statute of offense of assault with the intent to mur der approximately that the statute of limitations had run as By the assault with intent to cused was affirmatively accused’s conviction and convicted convicted statute verdict accused was indicted for the acquitted of manslaughter, appears, limitations. two to have occurred. The accused of assault and years murder; and, of the offense of which was barred without limitations). dismissing after the of In reversing ... which was dispute, the ac as it App.1986). judgment is therefore ingly be discharged support this appellant can be tion of ted it. sentence So. at 728-729 proceeding, proceeding. lower court acted without ^[******] dismissed, and, 497 So.2d against appeal. subject-matter; from further it is here ordered that he (Emphasis This person had or sustained as no conviction of void its added); who commit- custody (Ala.Crim. purported is accord- jurisdic- will not Hall ordinarily the other offenses included CONCLUSION charge indictment, under the the This that Court concludes charge of assault with intent to murder subject-matter court did have jurisdic not only

was the actionable offense in this tion try to the the lesser status, Under indictment. this the court included offense of involuntary manslaugh wrong in charging jury the to the ter since the applica statute of limitations effect that this indictment included also ble to expired. Consequent this crime had charges the battery assault and and ly, judgment the of the trial court is re assault, and war would be versed; prosecution against finding ranted in guilty him of assault appellant is prejudice dismissed with as the and battery, provid rule assault. The nullity. conviction is a ing every lesser offense included in charged ap one in the indictment SCOTT, J., concurs. plies every and has to reference actionable not offenses offense DWYER, J., dissents. upon proceedings which the face of the DWYER, Judge, dissenting. limitations, barred statute of I agree majority’s cannot with the operation rever- which rendered the conviction, sal of jurisdiction this based on the try court without and de tenets to 12(b)(2) of Rule of the Tennessee Rules termine the so-called lesser offenses. Procedure, words, Criminal pre- other the misdemeanor of which other established law, and lastly, any defendant was convicted was not em cedents of the fact that major braced in error charge unassigned. assault at all here was In John- U.S., with intent to murder. Nor could it have son v. 318 U.S. 63 S.Ct. quest no for error following language L.Ed. hence need for a Court. may found: ignored

To has settled law quest majority turn a criminal into a if requires appellant, he has a promotes jus- error no more ends of question concerning the statute of limita- in acquiesce tice than to low standards of tions, present pretrial. to Rule Tenn. prosecution. criminal in R.Crim.P. the issue raised Nor was Id., (Frank- 63 S.Ct. at 318 U.S. at question upon motion for trial. The a new concurring). furter, J. relies to majority which the reverse parties had their After the submitted pres- dismiss has never been this conviction case, panel a member of briefs in this ented to the trial court. per curiam self-titled unilaterally issued a 12(b) Tennessee Rules of directing order them to address whether Criminal Procedure states issues limitations barred convic- statute of trial are “de- which must be raised before tion, previous- had not an issue which been in fenses based on defects objections Black’s Law ly at level. raised prosecution” or “de- institution curiam is defined as Dictionary, per “by objections fenses based defects court; reports used phrase (other jurisdic- lack of the indictment than opinion of the distinguish an whole offense). charge an tion or failure to by any opinion judge.” from written one an jurisdiction trial over court had absolute per curiam order was I that the believe subject juris- and retained that matter improperly issued. diction waived the issue when the firmly opposed majori objection. I am also not filing a motion ty’s plain error rule to reach this use opinion by this In an Court unanimous held State which the This Court unassigned error. of limitations issue was statute Davidson, (Tenn.Crim. the motion for new until App.1980) that the failure raise a valid trial, opinion we in a well-reasoned held pretrial constitutes waiver under defense Hill, that it came too late. Rules of Criminal Procedure Tennessee (Tenn.Crim.App.1981). I 12(b) not a party’s failure to do so is and a think the should adhere that hold- Court court can seize situation which evidently ing. majority What over- Id. at 295. plain error. as Hix, reading looked their (Tenn.Crim.App.1984) is that access to the record reader without judice, to the case sub there, as opposed majority’s can from the not discern filed, timely pretrial properly motion author- when confessed to the preserving issue for review. ities, reading implies it that although a long place ago In and unanimous confession took another well-reasoned fact, concerning In police until 1988 to act. of this Court issues not waited place Judge approving- Jones killing presented pretrial, took although the Hill, supra, 4, 1988, as State v. ly proper cited for on confession occurred November as nonconstitutional An arrest constitutional as well years later. warrant twenty issues. days three of the promptly issued within question, raises challenges That fact

confession. constitu- by majority, of wheth- tionality proscribing left statute unaddressed tolled purposes. limitations had been for er the statute of use of minors obscene years. twenty is axiomatic While conten- during-those T.C.A. 39-6-1137. begin regard in this does not are that statute of limitations tions a clear, predicates he his appears that a it to run it has been discovered until argument ground the definition of Had matter on the crime committed. it is overbroad because ‘sexual conduct’ passed properly been pose using minor to or model court, prohibits might had the we have us and nude. pertinent in the record before facts Our majority review record reveals further that word, just it means what I choose it to mean— notes Rule of the Tennessee Rules Criminal Proce- pre-trial did not file motion seemingly is dure “harsh” and indicates a attacking ground indictment duty belief that this Court has a now the statute was unconstitutional. The If mediate its makes effects. appellant raised this first issue exception to rule it an established because post-trial in time his new motion harsh,1 appearing that fears sooner later trial. court will be embarrassed the reference jurisdiction ‘[djefenses In this and ob disregarded to the decision in which it jections based on defects the indict uncertainty rule. fol- Confusion will ment, presentment or information’ must low. be raised to trial. Tenn.R.Crim.P. Despite the fact majority that the finds Farmer, 12(b); State v. 675 S.W.2d conviction, supported the evidence (Tenn.Crim.App.1984), [constitution charges against orders dismissal of the ality of When an fails accused statute]. appellant. agree I dis- also cannot mandate, comply with this he waives proper, given missal is majority’s that the 12(f). the issue. Tenn.R.Crim.P. See grounds legal such not factual. Farmer, supra, State v. [constitutionali situations, proceed- a remand for further Hill, State v. ty 623 S.W.2d statute]. ings proper. is (Tenn.Crim.App.1981), [statute conclusion, an apocryphal story told is provision waiver limitations]. late, great about Oliver Wendell applies embracing to issues Holmes, he quoted wherein as replying constitutionality as as statutes well to his law clerk who him told to see that rights constitutional of the accused. justice done, I “Justice? don’t know Farmer, supra; Foote, State v. State v. anything justice. about I serve to make 631 S.W.2d (Tenn.Crim.App. sure that law has been observed.” 1982), Therefore, [identification issue]. observance, Without rules and their merit, issue (emphasis without justice system criminal simply will not added) I work. would affirm this conviction and hold that the has waived the is- Rhoden, (Tenn. majority sue that the finds for reversal and Crim.App.1987). dismissal. I would adhere that sound holding and apply reasoning the issue found majority. convey It would to bench and bar that consistency has been observed impartiality ques- can never be you tioned when are on sides both issue. Humpty Dumpty chillingly 1. As [A]djectives foresaw you in Lew- neither more nor less.... can with_” Wonderland, is Carroll’s Alice in “When I use a anything do

Case Details

Case Name: State v. Seagraves

Court Name: Court of Criminal Appeals of Tennessee

Date Published: Feb 12, 1992

Citation: 837 S.W.2d 615

Court Abbreviation: Tenn. Crim. App.