Saunders v. State

On Petition to Rehear

Burnett, Justice.

"We have jnst completed reading for the second time the courteous, scholarly and able petition to rehear. Between the readings of this petition we have done some further investigation of'the matter. After having done so and thinking of the matter for some time, we are now in a position to determine, as we see it, the questions here presented.

The State in its answer to this petition says:

“* * *■ After reading the rather lengthy petition in behalf of the defendant, the State is unable to find any new authority, material points or new argument. The defendant in this petition has done no more than point out his disagreements with the conclusions reached by the Court. He strongly objects to the application of our Harmless Error Statute.”

There is much meat in what the State says about this petition, but due to our respect for able counsel and the insistences made in the petition (realizing that it is almost impossible to file a petition to rehear without again rearguing questions that have been determined against the petitioner) we will consider such insistences as we deem necessary.

The petition now presented in essence is a scholarly and able argument aimed at interpretations the Court *367has put on our Harmless Error Statute (Section 27-117, T.C.A.) over the last fifty years. This argument is to the effect that the Court should view the questions from an objective rather than from a subjective viewpoint. The practice over the years, as is shown by all the reported eases, is well stated in Munson v. State, 141 Tenn. 522, 213 S.W. 916, as:

“* * * It was declared in all those cases, (the Court citing several cases just before making this statement) as well as others, that the merits of a criminal ease is the guilt or innocence of the accused. Of course, there may be such violation dr disregard of some constitutional right of the accused, not affecting the merits, that would induce the court to order a new trial•* * *”

In our study of this' case originally, and since this petition has been filed, we applied the Harmless Error Statute only to such cases as clearly, to our minds, the error claimed to have been committed did not affect the merits. The plaintiff in error clearly under this record had a fair trial. We will now take up one particularly of the claimed errors that we are alleged to have made in applying the Harmless Error Statute. We merely cite this one illustration because it was so forcefully and ably argued before us and in the original brief, and is again argued, and we think it illustrative of the position that is now taken in regard to our application of the Harmless Error Statute.

It is said that the court committed reversible error in the following portion of its charge, to wit:

“If a personal injury is unintentionally done to another by one who is engaged in an unlawful act, or if the act itself is essentially wrongful, it is not essen*368tial to show an unlawful intention for the intent is necessarily embraced in the wrongful act.”

The petition to rehear says of this charge: “* * * we cannot conceive a charge to be more wrong and this is the only place in the entire charge of the Court where the subject was touched upon.” Prior to quoting the above charge in the petition to rehear part of our quotation from King v. State, 157 Tenn. 635, 11 S.W.2d 904, 905, in our original opinion was quoted as the correct statement, that is, the quotation in the petition to rehear is:

a # # # if tRe act is a crime and malum in se, and the injury is a natural or probable consequence of the act, he is guilty of assault and battery * * *”

This statement, just quoted from King v. State, supra, is one sentence quoted out of a quotation which this Court adopted in the King ease from Clark & Marshall on Crimes. The argument now made is that since the charge as above quoted is in the disjunctive rather than the conjunctive it is so erroneous as to constitute reversible error. The same argument was made at the bar and in the original brief, though in somewhat a different manner from that now made. A careful reading of King v. State, supra, shows that immediately following the quotation from Clark & Marshall, which is said to be correct, this Court quoted with approval from 2 R.C.L., page 529, in language almost identical (in fact, it seems to us a verbatim copy from the King case) with the exception of the conjunction “or”. The Court in quoting from R. C.L. in the King case says this; “* * * if the act itself is essentially wrongful, it is not necessary to show an unlawful intention, for the intent is necessarily embraced in the wrongful act.”

*369The argument, as said, is that by use of the word “or” it is made disjunctive and this consequently makes it so erroneous as to constitute reversible error. It will be noted in the charge quoted the court charged, “If a personal injury is unintentionally done to another by one who is engaged in an unlawful act, or if the act itself is essentially wrongful,” then it is not necessary to show an intent because that is embraced in the wrongful act. The conjunction “or” is not always disjunctive in signification. There are familiar instances given in the law books in which the conjunction “or” is held to be equivalent in meaning to the copulative conjunction “and”, and such meaning is often given to the word “or”. The conjunction “or” is frequently used to connect two thoughts expressing the same idea. Certainly that was the meaning of the trial court in giving this instruction. Thus it is perfectly obvious to anyone that isn’t so engrossed by reason of the advocacy that such an error, if it be, is plainly harmless error.

We are rather severely chastised for a statement we made on page 901 of our opinion as to the distance Mr. Alexander’s car was from the house. It is argued again in the petition to rehear, as it was argued before us in the original brief, that “there is no credible evidence in the record that the distance was ‘some forty to fifty feet.’ ” All we said was that Mr. Alexander made this statement and the record clearly shows that he did regardless of what his answers were on cross-examination. As we said in the original opinion all of these things were matters for the jury to consider. We think unquestionably that this is true.

Then we are criticized for making the statement in arguendo in the opinion that had Mr. Alexander turned *370around when the shot was fired it could have put his eye out; that this constitutes no reason for the weapon being classified as a dangerous weapon because it is said that in Highsaw v. Creech, 17 Tenn.App. 573, 69 S.W.2d 249, the Court of Appeals held that an air rifle was not a deadly weapon when one was shot in the eye by a small boy with an air rifle and his eye put out. Of course, air rifles are classed as toys and are bought for small boys. As we see it, there can be no fair comparison at all to shooting one with a .20-gauge gun and a small boy in his play using an air rifle. We could cite illustration upon illustration of things of the kind but we feel it isn’t necessary to do so.

Finally, we are criticized rather severely for overruling the interpretation that is normally put on Hannah v. State, 79 Tenn. 201. The ordinary acceptation of this opinion, and it is classed along with these opinions, is that the defense may read any law that it wants to in a criminal ease and the failure to the court to allow this to be done is reversible error. The Hannah case did not hold that, even though it has been so classed over the years and viewed from that viewpoint. In the Hannah case the court allowed counsel to argue the law but refused to permit the reading of any law, and it was under the facts of the Hannah case the court reached the right conclusion. We though in this case do not have that question at all. We cited in the original opinion eases that have held over the last fifty years that it was a discretionary matter with the court as to what, or how much, law should be permitted to be read in the defense of a case, and it was on this theory, and this alone, that the accepted rule in the Hannah case was overruled, and we adopted definitely the rule in this State that the *371reading of law to the jury in a criminal case was a discretionary matter with the trial court. Of necessity this rule must be the correct rule to adopt and each case will be bottomed on whether or not the trial court abused his discretion in allowing or disallowing the reading of law to the jury. In this case we felt that there was no abuse of discretion under the facts herein. We in the original opinion distinguished this from the Dykes case now again relied upon.

We consider the punishment justified under the factual situation herein. Ordinarily this Court will not disturb the punishment imposed by the jury if within the limits allowed by law. Edwards v. State, 202 Tenn. 393, 304 S.W.2d 500; Ryall v. State, 204 Tenn. 422, 321 S.W.2d 809. There is nothing herein to indicate passion, prejudice and caprice.

After a very careful study of the petition to rehear and the various propositions therein stated, some of which we have pointed out heretofore, we must overrule the petition and affirm the judgment below.

Swepstok, Justice, not participating.