Nunley v. State

OLIVER, Judge

(dissenting).

Contrary to the majority opinion, the defendant was not convicted of concealing stolen property, the offense charged in the indictment.

The Bill of Exceptions shows that when the jury reported to the court that they had reached a verdict, and the court asked, “What is that verdict?” the jury foreman reported the verdict as follows:

“We find both defendants guilty, I guess it would be petty larceny less than One Hundred Dollars and recommend the sentence to be one year and a day.”

The Minute entry recording the trial states that the jury found the defendant “guilty of concealing stolen property under the value of $100.00 as charged in the indictment.”

But the settled law of this State is that, in case of conflict between the Minutes and the Bill of Exceptions with reference to the verdict, the record recited in the Bill of Exceptions is controlling. Church v. State, 206 Tenn. 336, 333 S.W.2d 799; Helton v. State, 195 Tenn. 36, 255 S.W.2d 694.

This record clearly shows that the jury found the defendant guilty of petit larceny. *840Without asking for any explanation by the jury, or attempting to obtain any clarification regarding the verdict announced by the jury foreman in open court, the trial judge simply proceeded to pronounce the sentence recommended by the jury.

The indictment did not charge the defendant with larceny. It expressly states that the property in question had been stolen by “some one to the Grand Jury unknown.” Thus, the jury convicted the defendant of a crime not charged in the indictment, as shown by the verdict set out in the Bill of Exceptions, and its verdict was void. Church v. State, supra; Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738; Judkins v. State, 224 Tenn. 587, 458 S.W.2d 801. Conviction upon a charge not made or without evidence of guilt is a plain denial of due process. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. The verdict being a nullity, “the court had no power to pronounce a judgment upon it.” Mayfield v. State, 101 Tenn. 673, 49 S.W. 742.

For these reasons, in my judgment we have no choice but to reverse this case and remand it for a new trial.

As is apparent, upon receipt of the foregoing the majority opinion was revised. Apparently the vital and determinative considerations in this case have eluded the majority.

Plainly, the jury convicted the defendant of larceny, a crime not charged in the indictment. Certainly it cannot be said the jury found him guilty of concealing stolen property; in returning the verdict the jury did not even mention that offense. Plainly, a verdict finding an accused guilty of a crime for which he was not indicted is void. “If it’s void, it’s void,” as a law school professor was wont to say. “Criminal prosecutions cannot be sustained by intendment, but everything necessary to constitute the offense [of which the accused was found guilty] must be charged.” Church v. State, supra.

Nothing is more firmly established in the law than that a defendant cannot be charged with one crime and convicted of another, Brown v. State, 162 Tenn. 639, 39 S.W.2d 746; 5 Wharton’s Criminal Law & Procedure (Anderson), Variance § 2060, p. 207, and that it is an unconstitutional denial of due process to convict and punish a man without evidence of his guilt, Thompson v. City of Louisville, supra; Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207; Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637, or upon a charge which was not made or on which he was not tried. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644; Thompson v. City of Louisville, supra; 21 Am.Jur.2d., Criminal Law § 226.

There was not a scintilla of evidence this defendant was guilty of larceny and he was not so charged.

A void conviction cannot be ignored simply because neither the defendant nor his counsel noticed or questioned its invalidity, and consequently did not call it to the attention of the trial judge. That is precisely the reason appellate courts may and must notice and correct, sua spoilteJ patent errors which nullify convictions.

We are not relieved of our obligation by the fact that the defendant has raised no question concerning his conviction. When necessary to meet the ends of justice, an appellate court has the right to notice, and will notice and correct of its own motion, errors of the lower court which invalidated the judgment appealed from, although such errors were not raised below nor on appeal. First National Bank v. Russell, 124 Tenn. 618, 139 S.W. 734; Bryan v. Norfolk and Western Railway Company, 119 Tenn. 349, 104 S.W. 523; Lee v. State, 132 Tenn. 655, 179 S.W. 145; Medic Ambulance Service, Inc. v. McAdams, 216 Tenn. 304, 392 S.W.2d 103; Baldwin v. State, 213 Tenn. 49, 372 S.W.2d 188; James v. State, 215 Tenn. 221, 229, 385 S.W.2d 86, cert. den. 381 U.S. 941, 85 S.Ct. 1777, 14 *841L.Ed.2d 705; Davidson v. State, 223 Tenn. 193, 443 S.W.2d 457. See also: Carter v. Jett, 51 Tenn.App. 560, 370 S.W.2d 576; Bedford County v. Roseborough, 20 Tenn.App. 35,95 S.W.2d 61.

The plain and unassailable reason for this rule is that this Court cannot knowingly approve and permit an invalid judgment to stand, notwithstanding the fatal defect be unnoticed or unrecognized by the defendant and his counsel. We may not close our eyes to patently vitiating errors and commit a person to prison upon a void conviction. To do so would be nothing less than knowingly perpetrating a palpable injustice.

In my view, the law clearly mandates exactly the opposite answers to the questions with which the majority opinion is concluded. Our duty is clear. Simple justice requires us to reverse and remand this case for a new trial.