(dissenting).
This appeal is from convictions on two separate indictments charging escape from the penitentiary and kidnapping, respectively. Defendant was sentenced to one year on the escape charge and two years on the kidnapping charge, with the sentences to run consecutively.
Four assignments of error are made:
(1) There is no evidence to support the verdict of the jury.
(2) The evidence introduced at trial preponderated against guilt and in favor of the innocence of the defendant.
(3) The element of intent to commit the crime of kidnapping in violation of T.C.A. Sec. 39-2601 was not sustained by the proof because both charges arose out of one transaction and involyed one intent.
(4) It was error to consolidate the two indictments for trial.
The first two assignments are clearly without merit on the basis of the State’s proof, and defendant’s own testimony that he and another penitentiary inmate accosted Miss Norma Marie Hand on the grounds of the State Penitentiary at Nashville and required her, at knife point, to drive them from the penitentiary grounds into the city where they got out of the car and left her.
I am of the view that there was no legal inhibition to consolidating the two indictments for trial in this case. Consolidating separate indictments for trial is procedural, and a matter which is within the discretion of the trial court. Bruce v. State, 213 Tenn. 666, 378 S.W.2d 758. Our appellate courts have routinely upheld the trial of separate indictments if they both arise out of the same transaction. Hardin v. State, 210 Tenn. 116, 355 S.W.2d 105; Epstein v. State, 211 Tenn. 633, 366 S.W.2d 914; Hayes v. State, 4 Tenn.Cr.App. 360, 470 S.W.2d 950; and have reversed for failure to grant separate trials if the crimes did not arise out of the same or related acts, Bruce v. State, supra.
I believe only one conviction can stand for reasons fully set forth in State v. Black, 524 S.W.2d 913 (Tenn.1975). Whether the convictions are considered under the “same transaction” rule or the “same evidence” rule, the offenses with which defendant was charged are part and parcel of each other. Under the facts of this case, one could not be accomplished without the other, nor could proof of one be established without evidence of the other.
The accepted rule is that when only one of two judgments is good, the judgment for the greater offense should be allowed to stand. The judgment for kidnapping in which the sentence was fixed at two years should be affirmed. The judgment for escape in which the sentence was one year should be reversed.