Phillips v. State ( 1969 )

OPINION

GALBREATH, Judge.

Plaintiff in error, William R. Phillips, appeals from the verdict of a jury and . the judgment of the Circuit Court of Tipton County of an attempt to commit the felony of burglary and the resulting one (1) to five (5) year sentence.

The particular crime involved was an attempt to break into the coin receptacle of a public telephone located in a booth outside Dorsey Robbin’s Motel on Highway 50 in Covington.

The only assignment of error addresses itself to the verdict which the defendant contends was so unintelligible as to render it invalid.

As originally reported by the foreman of the jury, the verdict was somewhat confusing. As read to the court the verdict was, “Guilty of an attempt to commit burglary or larceny; sentence, one to five years in the penitentiary.”

The trial court by judicious inquiry corrected the confusion: “Gentlemen, if I understand your verdict, you find the defendant guilty of attempt to commit burglary, and you sentence him to a maximum of five years in the State Penitentiary.” To which the foreman agreed by responding, “One to five,” and by nodding his head affirmatively.

The trial judge then passed formal judgment on the defendant who was asked to stand:

“William R. Phillips, on the jury’s finding of guilty of attempt to commit burglary, the Court sentences you to a minimum of one year and a maximum of five years in the State Penitentiary.”

We find nothing unintelligible about the verdict and certainly the judgment as pronounced by the court is clearly based on the verdict which sustains it.

The technical record recites the verdict as read by the foreman rather than the corrected verdict as elicited by the judge as set out in the Bill of Exceptions. It is well settled law in this state that the recital in the Bill of Exceptions concerning the verdict is controlling over a contrary Minute entry. Helton v. State, 195 Tenn. 36, 255 S.W.2d 694.

Actually, it makes little difference how garbled the verdict is so long as the trial judge makes sure he understands the meaning of the jury before entering the judgment which must be based and rendered upon the verdict. This was clearly done in this case. That the verdict may have been unintelligible in its original form does not affect the validity of a sound judgment based upon the correct meaning of the verdict as explained by the foreman in response to corrective inquiry by the judge. It is not the verdict, but the judgment that must withstand the ultimate test of intelligibility. “A verdict as such, is not appealable; only a judgment rendered on the verdict is appealable.” 4 Am.Jur.2d (Appeal & Error, § 77).

The verdict, even if not corrected, would not have been disjunctive because larceny is included in the offense of burglary. In order to resolve ambiguity, under proper circumstances, it has been held “that the disjunctive ‘or’ may, in some cases, be properly interpreted to mean the conjunctive ‘and.’ Interstate Life & Accident Ins. Co. v. Gann, 196 Tenn. 422, 268 S.W.2d 336, 44 A.L.R.2d 1230 (1954) and cases cited therein.” Baldwin v. State, 213 Tenn. 49, 372 S.W.2d 188.

But by his commendable actions the trial judge removed any ambiguity as to what the jury meant and correctly pronounced judgment in accordance with their findings. That judgment is affirmed.

WALKER, J., concurs in result.