Farris v. State , 1976 Tenn. LEXIS 584 ( 1976 )

HARBISON, Justice

(dissenting).

I respectfully dissent from the opinions prepared by Mr. Justice Henry and Mr. Justice Brock. In my view, the Court has departed from well-settled principles, requiring this Court to give every intendment and presumption to the validity of acts of the Legislature, and has stricken a valid criminal procedural statute in reliance upon inapposite authorities and for reasons which I cannot reconcile with sound constitutional theory.

The statute in question, Chapter 163 of the Public Acts of 1973, purported to amend a section of the official code of Tennessee, T.C.A. § 40-2707. This, in itself, distinguishes all of the cases cited by the majority with reference to the caption, for no one of those cases dealt with an amendment to officially codified law. Thus Hays v. Federal Chemical Company, 151 Tenn. 169, 268 S.W. 883 (1925), dealt with a lengthy caption to Chapter 84 of the Public Acts of 1923, which in turn purported to amend Chapter 123 of the Public Acts of 1919. The latter act, which was being amended, had not been codified, and the captions of both of the acts were extremely lengthy and involved. In the cases of Tennessee Electric Power Company v. City of Chattanooga, 172 Tenn. 505, 114 S.W.2d 441 (1937) and Armistead v. Karsch, 192 Tenn. 137, 237 S.W.2d 960 (1951), private acts of the Legislature were involved, and neither of them dealt, directly or indirectly, with an amendment to the official code of Tennessee.

The majority apparently recognizes the firm and well-settled rule in this state that when the official code of the state is being amended, a simple reference in the caption to the code section involved satisfies the provisions of the Tennessee constitution in question, Article II, § 17. Pharr v. Nashville, C. & St. L. Ry., 186 Tenn. 154, 208 S.W .2d 1013 (1948); Basham v. Southeastern Motor Truck Lines, Inc., 184 Tenn. 532, 201 S.W.2d 678 (1947).

In the Pharr case, supra, the Court said:

“This is not a case of the Legislature adopting ah amendment to a statute that is not a part of the official Code; but one amending a section of the Code that was formally adopted by an Act of the Legislature. When any section of the official Code is amended the members of the Legislature are presumed to know the nature of the section sought to be amended.” 186 Tenn. at 159, 208 S.W.2d at 1015.

Likewise, in the Basham case, the Court said:

“That an Act which fails to comply with this constitutional requirement is invalid needs no argument, but it is well settled that a reference in the caption to the section of the Code of Tennessee proposed to be amended is sufficient to comply with the requirements of Section 17, Article 2, of the Constitution. State v. Runnels, 92 Tenn. 320, 21 S.W. 665; Gamble v. State, 159 Tenn. 446,19 S.W.2d 279; Texas Co. v. Fort, 168 Tenn. 679, 80 S.W.2d 658, 659. The Code of 1932 is now the ‘Official Code of the State of Tennessee.’

“Counsel argue at length, and earnestly, that such a reference is uninforming and'‘fails to satisfy the purpose- of the requirement, but this specific question has been too long settled to admit of further debate. In the last case above cited it was said: ‘We understand counsel for appellants to concede that reference to the sections of the Code of 1932 is a sufficient recital of the title of the act to be' amended to satisfy the requirement that the amendatory act shall recite the title of the law to be amended. As said in Gamble v. State, 159 Tenn. 446, 19 S.W.2d 279, 280, this ‘was long since decided.’ State v. Runnels, 92 Tenn. 320, 21 S.W. 665.” 184 Tenn. at 535-536, 201 S.W.2d at 680.

In the present case the caption to Chapter 163 of the Public Acts of 1973 is very brief and simple. It is:

“AN ACT to amend Section 40-2707 Tennessee Code Annotated, relative to verdict and sentence on felony conviction.”

Even a casual examination of the recent acts of the General Assembly will make it clear that when the Legislature is amending an official section of the code, the words “relative to” are used in apposition to and as explanatory of the nature of the code section being amended. That is all that was done here. To me, it violates principles of grammar and syntax, as well as logic, to make the words “relative to verdict and sentence on felony convictions” into an adverbial phrase modifying the verb “amend”, as the majority have done. There was no attempt on the part of the General Assembly to specify in this caption the nature or type of amendment which was being enacted, but the reference was simply to a section of the official code which was under consideration, and the words “relative to verdict and sentence on felony conviction”, preceded as they are by a comma, clearly refer to the nature of the code section.

That code section did, indeed, relate to verdict and sentence in felony cases under the Tennessee Indeterminate Sentence Act, as it had been adopted by Chapter 8 of the Public Acts of 1913, and as amended by Chapter 52 of the Public Acts of 1923 and codified as T.C.A. sections 40-2707 et seq.

Had the General Assembly amended the code section in some particular manner and undertaken to specify in the caption the nature of the amendment,! as by using words “so as to provide that”, then the authorities cited in the majority opinion might be apposite. That is, if the General Assembly undertook to specify the particular nature or type of an amendment being made to a code section, then conceivably the limiting principles relied upon by the majority could come into play. As stated, however, the General Assembly, as a matter of regular custom and usage, amends official sections of the code without attempting to specify the nature of the amendment, and this has always, in the past, been deemed a sufficient compliance with the requirements of the Tennessee Constitution.

With respect to the further argument contained in the majority opinion that the provisions of Section 2 of Chapter 163 of the Public Acts of 1973 are unconstitutionally vague and impossible of application, I simply cannot agree. There is absolutely no evidence in any of the records before this Court that the jury had the slightest difficulty in understanding or applying the statutes in question, and it is clear from listening to the legislative debates on this Act that the General Assembly felt it necessary and proper for jurors to be allowed to have a general understanding of parole procedures.

There had been a long line of cases in this state, as well as in other states, in which jurors had repeatedly asked questions of the trial judge as to the effect of a sentence which they had under consideration.

Prior to the enactment of Chapter 163 of the Public Acts of 1973, it was reversible error, under a number of reported cases, for the trial judge to permit the jury to consider the subject of parole, or the length of time which a convicted defendant might actually have to serve before being released. Thus, in Graham v. State, 202 Tenn. 423, 304 S.W.2d 622 (1957), it was held reversible error for the attorney general to read to the jury two of the code sections now required by the 1973 act to be included in the charge of the court. A comment by the trial judge that the time served by the defendant “would depend upon the good behavior of the defendant and the attitude of the Parole Board under the indeterminate sentence law” was held reversible in Williams v. State, 191 Tenn. 456, 234 S.W.2d 993 (1950). See also Keith v. State, 218 Tenn. 395, 403 S.W.2d 758 (1966); Hale v. State, 198 Tenn. 461, 281 S.W.2d 51 (1955).

It is obvious from the large number of cases on the subject, however, that jurors, in discharging their function of fixing the sentence, have expressed great interest and concern about the matter of paroles and credits against sentences imposed. This has been true in other states as well. See An-not., 35 A.L.R.2d 769 (1954). It was against this background that the 1973 legislation was enacted, which expressly permitted them to fix the minimum sentence to be served by an offender, and also permitted them to receive information concerning paroles and good and honor time.

The result of Chapter 163 of the Public Acts of 1973 was simply to make it permissible for jurors to consider materials which this Court had previously deemed inappropriate for them. This, however, does not make the statute in question unconstitutionally vague or impossible of application. Whether the decision of the General Assembly was or was not a wise one, or consonant with optimum criminal procedure, is a wholly different question from the constitutionality of the statute. It is obvious that the General Assembly did not intend for the jurors to be required to go into the intricate details of the parole system, as argued at length in the majority opinion, but that it did wish them to have some general understanding of parole eligibility.

Tennessee is one of the states admitted to the Union early in the history of this country, and at a time when memories of colonial abuses were fresh in the minds of the citizenry. The Tennessee Constitution, Article I, Section 6, provides:

“That the right of trial by jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors.”

Section 19 of Article 1 contains declarations concerning freedom of speech and of the press, and this section concludes as follows:

. . and in all indictments for libel, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases.”

In accordance with the constitutional provision just cited, a large number of cases in this state have held that in a criminal case, the jury are the exclusive judges of the facts, and that they are also the judges of the law of the case. The court is said to be the proper source of the law upon which the jurors are to draw, and in one of the leading cases the somewhat quaint phrase was used that:

“The court is a witness to them what the law is . .” Ford v. State, 101 Tenn. 454, 458, 47 S.W. 703, 704 (1898).

It has been held to be reversible error for the judge to instruct the jury that they could not disregard the law as he gave it to them. Scott v. State, 207 Tenn. 151, 338 S.W.2d 581 (1960); and it has also been held to be reversible error to instruct that the court, rather than the jury, was the judge of the law. Dykes v. State, 201 Tenn. 65, 296 S.W .2d 861 (1956). See also Wright v. State, 217 Tenn. 85, 394 S.W.2d 883 (1965); McCandless v. Sammons, 50 Tenn.App. 413, 362 S.W .2d 259 (1961).

Article VI, § 9, of the state constitution directs that:

“The Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.”

Criminal procedure in this state has, from the beginning of statehood, been prescribed by a combination of statutory provisions and judicial decisions. Both the courts and the legislature have long acted in the field of criminal procedure, to the point that it cannot with accuracy be said that either has pre-empted the subject to the exclusion of the other.¹ Thus, for more than a century, there have been provisions in the criminal code governing both the form and content of the instructions to be given by the trial judge to the jury. For example, by T.C.A. § 40-2516, having its origins as far back as 1873, there is an express provision that:

“On the trial of all felonies, every word of the judge’s charge shall be reduced to writing before given to the jury, and no part of it whatever shall be delivered orally in any such case, but shall be delivered wholly in writing. Every word of the charge shall be written, and read from the writing, which shall be filed with the papers, and the jury shall take it out with them upon their retirement.”

It is further prescribed in T.C.A. § 40-2517 that attorneys must make precise written requests for further instructions to the jury, and that the decisions of the judge on these instructions shall be reduced to writing and read to the jury “without (1) one word of oral comment”, the statute stating that it was the intention “to prohibit judges wholly from making oral statements to juries in any case involving the liberties and lives of the citizens.”

Having its origin in the Acts of 1877, Chapter 85, is T.C.A. § 40-2518, expressly making it the duty of the trial judge in charging juries in felony cases where two or more grades or classes of offense may be included in the indictment, “to charge the jury as to all of the law of each offense included in the indictment, without any request on the part of the defendant to do so.”

Of more recent vintage, a provision of the 1971 Drug Control Act, T.C.A. § 52-1432(a)(2) expressly requires that the trial judge shall charge the jury on certain inferences which may be drawn from the amount of controlled substances possessed by an offender. In the case of State v. Helton, 507 S.W.2d 117 (Tenn.1974) this Court held the provisions of the statute to be mandatory and held it to be reversible error for the trial judge not to charge “the exact language” of a portion of the code section, under the facts and circumstances presented in that case.

Accordingly, there is nothing novel or extraordinary in the enactment by the General Assembly of a statutory provision governing the form or content of instructions to be given by the trial judge to the jury in criminal cases. Such statutory provisions have generally been held to be valid and imperative, rather than merely directory, although, of course there may be circumstances under which failure to comply with a statutory provision could be considered harmless rather than reversible error. See Keith v. State, 218 Tenn. 395, 403 S.W.2d 758 (1966).

At least since the enactment of Chapter 23 of the Public Acts of 1829, juries in the State of Tennessee have been authorized to fix punishment in felony cases, as well as to determine guilt or innocence. By Chapter 8 of the Public Acts of 1913, however, this function was taken from the jury and vested in the trial judge in all cases falling within the purview of the Indeterminate Sentence Act embodied in that chapter. Sentencing by the judge, rather than the jury, continued until 1923, when by Chapter 52 of the Public Acts of 1923 the function of fixing the time to be served under the indeterminate sentence law was returned to the jury. That law, codified as T.C.A. §§ 40-2707 et seq., as it existed prior to the 1973 amendment here under consideration, provided that in the trial of felony cases of persons over the age of eighteen years, where the punishment for the offense was set within minimum and maximum terms by statute, the jury, in addition to determining guilt or innocence, was required to “fix the maximum term of the convicted defendant”. The statute contained the form of verdict to be rendered by the jury; and the trial judge, in imposing judgment, was directed not to fix a definite term of imprisonment, but to sentence the defendant to the penitentiary “for a period of not more than the term fixed by the jury, making allowance for good time as now provided by law.”

In my opinion, Chapter 163 of the Public Acts of 1973 is consistent with the judicial history of this State, and simply represents a policy decision by the General Assembly contrary to that which had previously been made by the courts. So long as the jurors are the judges of the law as well as the facts, and so long as the jury has the function of fixing the sentence of one accused of crime, then in my opinion, it is within the legislative prerogative to authorize the jurors to consider parole eligibility.

In my opinion the judgment of the Court of Criminal Appeals in each of these cases should be affirmed.

I am authorized to state that Mr. Justice COOPER joins me in this dissenting opinion.

1 . By Chapter 376 of the Public Acts of 1975 this Court, with the aid of an Advisory Committee, has been authorized to promulgate Rules of Criminal Procedure in a manner similar to that followed in the promulgation of the present Rules of Civil Procedure. Preparation of such Rules is now in progress.