(concurring).
I concur with the majority that the defendant is not entitled to relief on his petition to rehear, but for a different reason.
I would not hold, as does the majority, that the defendant’s complaint is precluded because he based his attack in the trial court on the unconstitutionality of T.C.A. § 40-2707 on an improper ground.
To me, this seems to be a strained interpretation of Farris, Robinson, and Lewis v. State, 535 S.W.2d 608 (Tenn.1976).
In his motion for a new trial, the defendant alleged that the Act was unconstitutional because of the separation of powers concept and failed to allege that the body of the Act was broader than its caption. However, in his original brief in this Court, the defendant expanded his unconstitutional complaint to argue that “The Act should also be held unconstitutional because it is broader than its caption, . . . .”
To me, the instant case is similar to the Farris companion case of Roosevelt Lewis v. State, where the Supreme Court recognized Lewis’ complaint, even though he had not raised the “improper caption” complaint in the trial court. In Lewis’ motion for a new trial, he complained of the unconstitutionality of T.C.A. § 40-2707, but as stated, he did not allege the “improper caption” complaint. A similar situation exists in Jackson’s motion for a new trial. Also, like the present case, Lewis first began to insist on this additional ground for the Act’s unconstitutionality when his case came to our Court. Further, Lewis listed this additional ground when his case was before the Supreme Court. Since Lewis had raised the unconstitutional question in the trial court, the Supreme Court did not decline to consider his ground because he had predicated his complaint there on an improper ground.
Thus, I am of the opinion that the defendant’s complaint has been sufficiently raised, but I would deny the petition to rehear on the basis of some of the Supreme Court’s language in its opinion on the Farris, et al petition to rehear (released March 30, 1976), where the Court said:
“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.”
Further, the Supreme Court approved the principle that such cases should be governed by its own facts, i. e. “ ‘every tub must stand on its own bottom.’ ”
In the present case, the jury set the defendant’s punishment at an 80 year penitentiary sentence for a brutal murder committed by two armed robbers. In my view, the charge of the court did not bring about the punishment set. It was the facts of the case that dictated the sentence set by the jury. I would hold the error in the court’s charge to be harmless. T.C.A. § 27-117.