Dykes v. State , 1979 Tenn. Crim. App. LEXIS 283 ( 1979 )


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  • BYERS, Judge,

    concurring.

    Although I agree with the majority opinion in affirming the judgment in this case, I wish to state my separate view on the dual sovereignty doctrine.

    I have no quarrel with ending dual prosecutions based on the same facts. However, in my view the court is not the proper agency for bringing this about.

    As pointed out in the majority opinion, five (5) states have modified the dual sovereignty rule by legislation and two have modified the doctrine by judicial decisions founded upon public policy.

    Clearly, unless we are to ignore the deci-sional law over the past two hundred (200) years, these dual prosecutions do not present double jeopardy questions and are not constitutionally prohibited leaving the judiciary only a public policy platform upon which to base a prohibition of such prosecutions.

    *391The public policy of the state is primarily for the legislature to determine, Hyde v. Hyde, 562 S.W.2d 194 (Tenn.1978), and is controlled by the legislature to a substantial extent. Duck River Electric Membership Corporation v. City of Manchester, Tennessee, 529 S.W.2d 202 (Tenn.1975).

    If there are any reliable indicators to suggest what the public policy of this state is in this area, they point to a policy of state prosecutions of these type cases. We have had dual prosecutions of this nature at least since 1867 as reflected by State v. Rankin, 44 Tenn. 145. The courts of this state during the one hundred and twelve (112) years since that decision have not declared this to be against public policy. Significantly, the legislature during this same time has not seen fit to pass legislation as have five other states to prohibit these prosecutions, indicating to me there is no public policy against such prosecutions.

    The police power rests with the legislature and the courts can only prohibit the carrying out of such power upon a determination of constitutional infirmity, a condition not having been found to exist in these type cases.

    If the practice of dual prosecution in this state is to be ended, curtailed or modified, such change should come from the legislature and not the courts.

    The power to declare what shall be unlawful and what acts shall be punished reposes with the several states. U.S.Const., amend. X. This is paramount and federal authority is secondary and derived only by act of Congress. I would further suggest, out of deference to Federalism, for which a lot of good can be said, if there is to be a relinquishment of prosecution to avoid dual punishment such relinquishment should be by the federal authorities rather than the state.

Document Info

Citation Numbers: 589 S.W.2d 384, 1979 Tenn. Crim. App. LEXIS 283

Judges: Byers, Cornelius, Daughtrey

Filed Date: 3/12/1979

Precedential Status: Precedential

Modified Date: 11/14/2024