(dissenting).
The order of the trial court dismissing the petition filed in this cause without an evidentiary hearing recited that the summary action was based on the grounds set out in the State’s motion to strike the petition and on the authority set out in the motion. The primary ground relied on by the State and apparently adopted as controlling by the court was that the petitioner’s complaint, hand drawn, cumbersome, patently incompetently drafted, to the effect the jury was allowed to separate during the trial “does not raise a constitutional question inasmuch as there is no constitutional right to have the jury sequestered.”
The above conclusion of law urged by the respondent below and relied upon by the court is erroneous. The common law right to sequestration is of constitutional dimensions based on both Federal and State guarantees to the right to trial by jury. See Long v. State, 132 Tenn. 649, 179 S.W. 315. As set out in Steadman v. State, 199 Tenn. 66, 282 S.W.2d 777, quoting from Hines v. State, 27 Tenn. 597, 601 (1848):
“ ‘First, that the fact of separation having been established by the prisoner, the possibility that the juror has been tampered with, and has received other impressions than those derived from the testimony in court exists, and prima fa-cie the verdict is vicious; but second, this separation may be explained by the prosecution, showing that the juror had no communication with other persons, or that such communication was upon subjects foreign to the trial, and that, in fact, no impressions, other than those drawn from the testimony, were made upon his mind. But third, in the absence of such explanation, the mere fact of separation is sufficient ground for a new trial.’ ”
TCA § 40-2528, which provides a method by which the defendant in a criminal case may with consent of the State and trial judge waive this constitutionally protected safeguard, does not diminish it. Any constitutional right may usually be waived, but the availability of waiver does not trench upon the right in the absence of waiver. In the record before us there is no indication of waiver of the right involved.
Neither is there any indication that at the time the defendant waived his right to an appeal he was aware of the circumstances that lead him to allege that the jury was not properly kept separate and apart from all others and in the presence of each other during the trial. His subsequent complaint would tend to suggest strongly that he was not aware of the facts that lead him to believe the jury had not been kept together, or the legal consequences of such separation, at the time he executed the waiver of his right to appeal ■ — another constitutional right that should not be lightly denied. Such a waiver, like a plea of guilty, is not binding when made by a defendant in misapprehension of his rights. Actually it would seem that a waiver of the right to an appeal, absent some benefit to a defendant such as dismissal of other pending charges by the State, should be considered less binding than a plea of guilty based upon a negotiated punishment of lesser severity than permitted by law if it should appear that such right was abandoned in ignorance or through coercion that rendered it something less than voluntary. And of the recognized right to withdraw such an abandonment of a constitutional right in the instance of an involuntary plea of guilty, our Supreme Court has said:
“Ordinarily an accused should be permitted to withdraw his plea of guilty where it was entered through a misunderstanding as to its effect, or through fear and fraud, or where it was not made voluntarily. ‘On the other hand, if a defendant, with full knowledge of the charge against him and of his rights and the consequences of a plea of guilty, enters such a plea understandingly and *820without fear or persuasion, the court may, without abusing its discretion, refuse to permit him to withdraw it.’ 14 Am.Jur., sec. 287, p. 962. See also annotations in 20 A.L.R. 1450 et seq., and 66 A.L.R. 632 et seq.
“In our own case of Swang v. State, 42 Tenn. 212, 88 Am.Dec. 593, it was held that where a plea of guilty and submission was made through fear or fraud or through official misrepresentation and the accused acted ‘under a total misapprehension of his rights’, the plea should be set aside * * *
* * * * * *
“We have given careful consideration to the authorities cited by counsel, People v. Schraeberg, 340 Ill. 620, 173 N.E. 148; People v. Long, 346 Ill. 646, 178 N.E. 918, 920; and other cases. In the Schraeberg case the defendant did not fully understand the consequences of the plea and moreover it was taken in the absence of his counsel who had represented him the day before. In People v. Long it was held that the facts set out in the petition to set aside the plea were sufficient to raise the issue as to whether the defendant had been deprived of a substantial defense. In these circumstances it was held that the trial court could not arbitrarily refuse a hearing. We are in accord with the views expressed in these opinions and agree with the statement that ‘discretion * * * should always be exercised in favor of innocence and liberty.’ ” Henning v. State, 184 Tenn. 508, 201 S.W.2d 669.
An extension of Justice Neil’s recommendation in Henning to post conviction and habeas seeking to void judgments by collateral attack would seem to encourage trial judges to grant evidentiary hearings in cases in which it does not affirmatively appear that the defendant in a criminal trial waived a fundamental constitutional right he alleges was violated.
I believe that the trial judge would have followed a proper and commendable procedure if he had required the public defender appointed to represent the petitioner to have amended the petition to more fully reflect the position of the prisoner. If it then appeared that the petitioner had knowledge of the alleged separation at the time it was supposed to have happened, a waiver of this right would be superimposed on the waiver of the right to appeal. Or in the absence of a more sufficient petition, a brief evidentiary hearing should have sufficed to determine if the petitioner had knowledge of the facts he relies on relative to the jury separation at the time he waived his appeal.
According to the record the petitioner was before the court in person at the time the court heard and determined the motion to strike the petition. Why, during, such hearing, no one inquired of the petitioner about the circumstances under which he waived his right to appeal if he was dissatisfied with the jury’s being allowed to separate does not suggest itself from the record. If such simple inquiry had been made, it no doubt would have elicited from the petitioner information that would have established or tended to repudiate the waiver. No one would have been inconvenienced, and all doubt as to the validity of the conviction might easily have been resolved. Now, in the absence of further pursuit of this question, it must be apparent that there does exist a substantial possibility that the petitioner was in total and complete misapprehension of the facts and circumstances upon which he now predicates a collateral attack on his restraint. When such doubt exists on whether or not a constitutional right was disregarded, I would hold that an evidentiary hearing should be conducted.
For the reasons set out above I must respectfully dissent from the majority opinion.