Sherod v. State ( 1971 )

GALBREATH, Judge

(dissenting).

I must respectfully dissent from the majority view that the indictment in this case was insufficient to charge the felony of second degree murder.

Perhaps a hundred years or so ago the reasoning of the Supreme Court in Witt v. State, 46 Tenn. 5, would have been applicable to the indictment in this case. As noted recently by an outstanding legal scholar:

“There was a time in the law, extending into our own century, when no error was lightly forgiven. In that somber age of technicality the slightest error in a trial could spoil the judgment. The narrow bounds of propriety were entirely surrounded by booby traps.

“Consider, among manifold examples, an appellate court’s review in 1863 of a conviction for robbery. The indictment charged that the defendant had taken certain property from the victim by threats and force. Could error cast a shadow on such clear words? Yes, said the Supreme Court of California; there was an error of omission. It reversed the judgment on the ground that the indictment failed to specify that the property taken did not belong to the defendant and hence failed to give him adequate notice of the crime charged.

“In this appellate court there would be no forgiving an error of omission, even one that involved only spelling. The court scrutinized an indictment that charged the defendant with entry into a building with intent to commit larcey. The omission of the letter n in larceny left the meaning clear, but reduced the word to two syllables. In the law such a flaw was fatal. There was no such crime as the one charged, said the court; nor could larcey now be laced up with an n. The court would not invoke idem sonans, though anyone with larceny in his heart would be well-attuned to a charge of larcey. So there was a reversal, on the ground that the indictment failed to charge the defendant with the requisite specific felonious intent.

“Reversals for trivial errors occurred in many jurisdictions. New trials were ordered at the drop of a hat or a consonant that was needed to split a hair. However minuscule the errors, there was heroic spraying for overkill.”

Traynor, Roger J. Riddle of Harmless Error, pp. 3-4.

In 1911 the General Assembly of Tennessee, following the lead of some states and showing the way for others, enacted the Harmless Error Statute which prevented such errors as noted by the majority in the indictment in this case from setting aside the results of a fair and exhaustive investigation in a trial in which every conceivable right of the defendant was preserved for a reason that did not and could not have affected the outcome one Witt.

Even Witt would have withstood the technical challenge here, since that case was one of murder in the first degree so that premeditation or “aforethought” was an essential ingredient of the crime. The Supreme Court in Witt said:

“The indictment would be good if it charged the offense according either to the common law, or the statute; but in this case it follows neither. It does not use the word “unlawfully”, and does not charge the killing to have been unlawful, unless by dubious inference.”

The indictment before us charges the killing was both “unlawfully AND maliciously” committed. This should communicate to anyone who reads or hears the words used that the State is accusing the defendant of having illegally taken the life of another person with malicious intent to harm him. Men of ordinary understanding, or even less, should have no difficulty in determining that the indictment means the malicious motivation charged existed prior to the act it is said to have precipitated. Malice, like any other drive, must precede the occurrence it causes. Just as it is most unusual for appetite to increase by feeding, it would be almost beyond understanding for malice to replace compassion after the killer takes his victim’s life.

The Harmless Error Statute has prevented the reversal in this State of a number of cases in which convictions were obtained on technically defective indictments that would have been fatal in the Golden Age of Error of the middle and late nineteenth century. Blackman v. State, 169 Tenn. 197, 83 S.W.2d 899 (1936); Johnson v. State, 187 Tenn. 438, 315 S.W. 2d 816 (1948). As stated by the Supreme Court in Blackman, supra:

“Certainly it does not affirmatively appear that any injustice whatever resulted to the defendant below from the alleged defect in the indictment on which he seeks now to rely for a reversal, and in this situation, Code, section 10654 (Pub.Acts 1911, ch. 32), expressly forbids a reversal in any criminal case for error in acting on any indictment, or for any error in any procedure in the cause unless it affirmatively appears that the error complained of has affected the results of the trial.”

For the reasons expressed, I must respectfully dissent.