Whitwell v. State , 1975 Tenn. LEXIS 701 ( 1975 )

OPINION

FONES, Chief Justice.

Defendants below, Dennis Whitwell and Forrest McClain, were charged in separate indictments, with grand larceny of cattle and receiving and concealing stolen property, the same cattle. They were jointly tried. The jury requested further instructions on two occasions and returned from their deliberations the third time and reported that they could not agree. Thereupon, the following colloquy occurred between the Judge and the jury foreman:

“The Court — gentlemen, I want to ask you just a question or two, might help us and might help you, too, kind of see where we are, I’m looking at the case of Forrest McClain, have you decided whether or not Forrest McClain is guilty of grand larceny, or—

Juror — yes, sir, we got by that and we find him not guilty of that—

The Court — what about the case of Whit-well?

Juror — well, him too, both of them.

Juror — Judge, we’ve considered grand larceny and we’ve all decided that the defendants did take and load the cattle and they did have them in their trucks but we don’t think they knew they were stealing at the time.

The Court — is that the verdict of all of you?

Juror — yes, sir, we can’t agree on anything else.

Juror — why are you asking us here for, we’ve already voted; why do you want us to vote out here in front of everybody ?

The Court — well, is that the finding of all the jury, as to both Whitwell and McClain ?

Jurors — yes, sir.

The Court — all right — I guess we’ll just have to declare a mistrial as everything else.”

The trial judge’s statement that he would have to declare a mistrial as to everything else (obviously everything other than grand larceny), concluded a three-day trial, on January 5, 1973. Under said date, an order was entered in the Minute Book that the jury having reported that they could not agree, was dismissed, and a mistrial entered and the case was continued to the next term of court. On January 11, 1973, defendants filed a written motion seeking the entry of a judgment of not guilty as to the offenses in the two indictments and the included offense of petit larceny. In essence, it was the contention of the defendants in said motion that the jury had returned a verdict of not guilty as to grand larceny and a verdict that the defendants did not know they were stealing at the time they took the cattle; that said verdict, as a matter of law, nullified criminal intent, an essential element of both the lesser included offense of petit larceny and the offense of receiving and concealing stolen property.

Following the hearing of said motion, on the 16th day of February, 1973, the trial judge ruled that the jury had returned a verdict of not guilty as to the offense of grand larceny, “. . . but that the offense of receiving and concealing stolen property and petit larceny being the remaining offenses within the indictment, have not been, by a jury, determined and that a mistrial as to those offenses should be declared by the court and that a certain date for the trial of the remaining offenses should be set.” In a subsequent paragraph of the order, the cases were set for trial on June 19, 1973.

Thereafter, defendants filed a petition for the writs of certiorari and supersedeas in the Court of Criminal Appeals and the second trial has been continued pending action on said petition. On presentation of said petition to one member of that Court, an order was entered directing the issuance of the writ and that the case be heard by a three-judge panel.

The theory and contention of defendants in that Court, and here, is that there was a jury verdict of not guilty of the offense of grand larceny, and that there was also a verdict exonerating them of any criminal intent, and that it follows, as a matter of law, from the facts in this case appearing in the record of the first trial which is before the Court, that they have been fully exonerated of all offenses included in the two indictments and the trial judge’s order setting a date for the second trial violates the constitutional right protecting against double jeopardy.

The Court of Criminal Appeals, with one Judge dissenting, held that the writ of cer-tiorari is not available to review said order of the trial judge; that the trial judge was not acting illegally, nor beyond his jurisdiction, and that defendants have a plain, speedy and adequate remedy by pleading double jeopardy at the beginning of the second trial; that should the trial judge overrule the plea and defendants be convicted, they could then raise the question on appeal.

Judge Russell, dissenting, held the writ available to review the issue of double jeopardy, basically for the reason that the constitutional protection against double jeopardy is intended to protect against a second trial for the same offense, as well as a second punishment. With respect to the merits of defendants’ contention, the dissenting judge held that the acceptance of the verdict of not guilty to grand larceny in the context of this case was an exoneration of all charges.

We granted the writ of certiorari and heard oral argument.

The State contends, first, that the writ of certiorari cannot be employed to review defendants’ contention of double jeopardy at this stage; second, that there was no jury verdict at all, and third, if there was a verdict of not guilty as to grand larceny, the trial judge was correct in ordering a second trial on the lesser offense of petit larceny and the offense of receiving and concealing stolen property.

If defendants have been acquitted of all three charges included in the two indictments, as they contend, a second trial upon any one or more of the same charges is constitutionally impermissible, state and federal.

The common-law rule, the Tennessee and the United States constitutional provisions against double jeopardy protect an accused from the peril of both a second punishment and a second trial for the same offense. Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874); Kepner v. U. S., 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904); Stroud v. U. S., 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919); Green v. U.S., 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); King v. State, 216 Tenn. 215, 391 S.W.2d 637 (1965).

It is quite apparent that if the writ of certiorari is not available to the defendants in the posture of this case, then courts in Tennessee are powerless to protect defendants from the ordeal of a second trial, unconstitutional at its inception.

In discussing the use of writ of certiora-ri in McGee v. State, 207 Tenn. 431, 340 S.W.2d 904 (1960), Mr. Justice Felts, writing for the Court, said:

“The phrase ‘exceeded the jurisdiction conferred,’ and the phrase ‘acting illegally,’ both refer to action by such inferior tribunal beyond, not within, its jurisdiction. Referring to the phrase ‘acting illegally,’ this Court, in the Hunt case, supra, said:

‘Without undertaking to define that phrase of the statute with exactness or to say what it includes, we think it clear that the common-law writ, as distinguished from the statutory writ, or certiorari in lieu of appeal, may not be resorted to for the correction of technical or formal errors, not affecting jurisdiction or power, or for the correction of defects that are not radical, amounting to an illegality that is fundamental, as distinguished from an irregularity.’ ”

We have no hesitation in holding that ordering a defendant to trial a second time in the same court, for the same offense, is an illegality that is fundamental, as distinguished from an irregularity. We are not content to say that, in Tennessee, defendants can have only one-half of the constitutional protection against double jeopardy ; that, while we will protect them against double punishment upon their appeal- after a second trial, we have no procedural vehicle to protect against two trials for the same offense.

Appropriate here is the following statement from a Missouri case, quoted with approval in Conners v. City of Knoxville, 136 Tenn. 428, 189 S.W. 870 (1916):

“The statement that certiorari will not issue where either appeal or error goes, though frequently met with in text-writers, and in some reports, is neither strictly true nor accurate. There are marked exceptions. Thus, where the exigencies of the case are such that the ordinary methods of appeal or error may not prove adequate, either in point of promptness or completeness, so that a partial or total failure of justice may result, then certiorari may issue. Harris Certiorari, § 64.”

Not every plea of double jeopardy is ripe for review by certiorari upon being overruled. Here we have the entire record of the first trial properly before the Court, and all that is required to determine the validity of defendants’ contention is to interpret the action of the jury and then determine whether, in the context of the evidence in the first trial, defendants were acquitted of all charges. No additional evidence or pleading at the second trial is required before the appellate courts can pass upon the issue presented by defendants, raising a question of illegality in the action of the trial judge in putting them to trial a second time in the same court for the same offense.

Much is said in the majority opinion of the Court of Criminal Appeals about the necessity of pleading double jeopardy in the trial court. The view we take of this case renders the authorities cited inapplicable. The written motion of defendants filed in the trial court, heretofore referred to, expressly alleges that the defendants were placed in jeopardy, tried by a jury, and found not guilty of all offenses. We interpret that plea, in the context of this case, as tantamount to a plea of double jeopardy. Defendants’ motion clearly says to the trial court — we have been put in jeopardy, tried and exonerated of all offenses for which we have been indicted, then prays that the court enter judgments of not guilty as to all offenses to protect defendants from a second trial on any of said offenses.

The correct interpretation of the action of the jury in this case is a difficult one. We have engaged in extensive research for guidance and little has been found that lights our way. Desirable certainty and formality of verdict is clouded by the initial report that the jury could not agree upon anything, and by failure to poll the jury. The court reporter’s recording of the assent of eleven jurors with the words, “Yes, sir”, is a poor substitute for polling of the jury.

T.C.A. § 20-1324 provides that trial judges in both criminal and civil cases shall be required to poll the jury on application of either the State or the defendant, in criminal cases, and the plaintiff or the defendant in civil cases. The object of polling the jury is the ascertainment, for a certainty, of each individual juror’s verdict. However, we are of the opinion that the verdict in this case, as reported in the bill of exceptions, must be taken at its face value. So construed, it was favorable to the defendants and the concluding' remark of the trial judge put the State on notice that he, at that time, interpreted the verdict as a finding of not guilty as to grand larceny. In the light of our statute, it was incumbent upon the State to request that the jury be polled, and, having failed to do so, it has lost standing to complain as to lack of certainty or form.

The remaining question to be answered is whether or not that verdict, in the factual context of the proof at the trial, exonerates the defendants of petit larceny and receiving and concealing stolen property.

The evidence adduced at the trial revealed that the cattle belonged to one Grinder, a .resident of Ohio, and were in the care, and custody of J. W. Walker. Whitwell, driving a 1-ton truck, and McClain driving a pick-up truck, went to the Grinder farm during morning daylight hours, and loaded eight cows in Whitwell’s truck and eight calves in McClain’s pickup. Walker happened along and saw McClain on a road near the Grinder farm, recognized the calves, stopped McClain and questioned him. McClain told him that they were hauling the cows and calves to market for Eulas McClain and that Whit-well had gone on ahead toward Hohen-wald. Walker dispatched two men to overtake Whitwell. Whitwell had waited about a mile up the road when he observed that McClain’s truck was not behind him.

Whitwell testified in considerable detail about receiving a long distance call on the day before from a man who identified himself as Eulas McClain, of McClain’s picking him up in a white Pontiac, driving him to the Grinder farm and pointing out the cattle that should not be picked up and hauled to market at Columbia the next day, all other cattle to go. McClain was said to have given Whitwell a key and a note containing directions. Whitwell testified that he asked McClain if he would meet them at the farm the next morning and was advised that it was possible that he would not, in which event Whitwell was instructed to load the cattle and meet McClain at the Mid-South Stock Barn in Columbia. Whitwell described himself as a farmer, heavy equipment operator, quarter horse owner and rider, and cattle hauler; that he was well known in the area and frequently called on to use his quarter horses to catch cows and horses. He further testified that he had been unable to locate Eulas McClain, despite extensive efforts, described in some detail.

Defendant Forrest McClain was a friend of Whitwell and his pick-up truck was needed to haul the calves separate from the cows to avoid injury. He had helped Whi-twell haul cattle on numerous occasions before, and they did some farming together. Forrest McClain did not know Eulas McClain.

The State’s case rested upon the taking of the cattle by defendants, without permission of the owner or Walker. The taking was acknowledged by defendants, but it was said to be innocent taking, based upon their belief that Eulas McClain was the owner of the cattle. Thus, a jury issue was presented, and there was sufficient evidence to support a conviction of grand larceny or an acquittal and the explicit finding of no criminal intent, which was implicit in the verdict of not guilty of grand larceny, under the factual situation here.

Walker testified the calves were worth a minimum of $2,500 and the cows at least $200 each. There was no evidence whatever that the cows could have been worth less than $100. However, the trial judge charged the lesser included offense of petit larceny.

While petit larceny is included in the indictment for grand larceny, the court is not required to instruct on lesser included offenses where there is no evidence to support a lesser included offense, e. g., Reynolds v. State, 210 Tenn. 310, 358 S.W.2d 320 (1962).

In Reynolds, Mr. Justice White extends the general rule by observing that the court is not justified in so instructing the jury, where there is no evidence that the value of the property is less than $100. But, is it within the province of the jury to return a verdict of guilty of the lesser offense of petit larceny, where all of the evidence of value makes the offense grand larceny under the statute ?

In Wattingham v. State, 37 Tenn. 64 (1857), the indictment was for grand larceny and the monetary value of the property stolen was in excess of the dividing line between petit and grand larceny, but the jury found defendant guilty and fixed punishment at two years, which was, in effect, a conviction of petit larceny. Defendant asserted incongruity on the face of the verdict and was rejected by the rule that a party cannot assign for error that which is for his own advantage. We find no reported case of the State appealing from a conviction in a similar situation.

T.C.A. § 40-2518 makes it the duty of the trial judge to charge lesser included offenses, without request. But the principle is well established in our case law that it is not error to refuse to charge lesser offenses where, under the evidence, defendant can be guilty of the greater offense, or no offense at all. See, e. g., Baker v. State, 203 Tenn. 574, 315 S.W.2d 5 (1958).

In accord with Reynolds v. State, supra, we do not approve the practice of charging petit larceny, where there is no evidence to support it, and we cannot sanction the retrial of defendants for the crime of petit larceny, after acquittal of grand larceny, in a case where no credible evidence could be adduced that the value of the goods allegedly taken was less than $100.

Further, in the instant case, the jury’s finding a lack of intent to steal clearly exonerates defendants of an essential element of petit larceny.

The second count of the indictment charged defendants with receiving and concealing stolen property. Again, the trial judge charged the jury that receiving and concealing stolen property over the value of $100 was punishable by three to ten years and, if less than $100 in value, one to five years in the penitentiary, etc.

Receiving is a necessary ingredient of the offense of receiving stolen property. Deerfield v. State, 220 Tenn. 546, 420 S.W.2d 649 (1967). Defendants did not receive the cattle from Eulas McClain or anyone else. They either stole the cattle, committing grand larceny, or they were the innocent victims of Eulas McClain’s scheme.

Concealing stolen property is an offense distinct from and independent of receiving stolen property. Deerfield v. State, supra.

Knowledge that the property has been stolen is an essential ingredient of the offense of receiving and the offense of concealing stolen property. See, e. g., Kessler v. State, 220 Tenn. 82, 414 S.W.2d 115 (1967).

If they had guilty knowledge, under the facts of this case, they were guilty of grand larceny. They were exonerated of grand larceny, with the additional finding that they had no intention of stealing, a fortiori they could have no guilty knowledge that they were concealing stolen property.

The judgment of the Court of Criminal Appeals is reversed and the cause is remanded to the Circuit Court of Wayne County, Tennessee, for the entry of judgment dismissing all charges growing out of the indictments involved in these cases.

COOPER, HENRY and BROCK, JJ., concur. HARBISON, J., dissenting opinion.