Russell v. State

O’BRIEN, Judge

(dissenting).

I respectfully dissent.

The second assignment of error in this case is raised by the defendant, Sweeney, individually, and charges error to the trial court in refusing to grant the plea in abatement offered on grounds of misnomer.

There is no plea in abatement filed in the technical record. The entire colloquy between court and counsel regarding the plea in abatement is contained in the bill of exceptions and is quoted verbatim since this is the primary basis for my dissent.

“MR. PETERSEN: Your Honor, could we be allowed, this is a Court appointed case and we hate to wait until the last minute but unfortunately these men have been in the penitentiary for some time and we haven’t had an opportunity to speak with the defendants and my defendant is misnamed in the indictment and I would like to have the opportunity to have a Plea in Abatement for a misnomer typed up and entered into the record.

THE COURT: Well I would have to know whether did or not, I wouldn’t know him if I saw him.

MR. PETERSEN: I understand.

THE COURT: These were indicted at the present Term of Court, were they not.

DIST. ATTY. GEN. BATES: Yes, sir.

MR. PETERSEN: Yes, sir.

THE COURT: You might state your facts then, Mr. Petersen and see.

MR. PETERSEN: Your Honor please, my Plea in Abatement reads:

Comes now the defendant, William David Sweeney, for Plea in Abatement would state:

That his full name is William David Sweeney and that he is not named as the person indicted is named and that the indictments as against him, William David Sweeney, is improper, the indictments read David Ford Sweeney, and that is not the defendant’s name, Your Honor, please.

THE COURT: Well write it just that way and I’ll overrule it. That is the wording as you stated it.

MR. PETERSEN: Yes, sir.

THE COURT: All right.”

In overruling this assignment, the majority rely on the authority of Gray v. State, 194 Tenn. 234, 250 S.W.2d 86, in which our Supreme Court said:

“It is next assigned as error the action of the trial judge in overruling and disallowing the defendant’s plea in abatement to the indictment because (1) the names of grand jurors were illegally drawn from the jury box by the Jury Commission and for this reason the grand jury was unlawfully impaneled; (2) that the trial judge erred in directing members of the Jury Commission that they need not answer questions of counsel as to the manner of drawing the names of prospective jurors.”

“The assignment must be overruled for the following reasons: (1) there is no entry upon the minutes of the court showing the action of the trial judge upon said plea, and (2) we cannot look to the bill of exceptions to determine the question. We are not left in doubt as to this assignment. In Diamond v. State, 123 Tenn. 348, 363, 131 S.W. 666, 669, it was held:

‘The minutes of the court, as sent up, show no action by the trial judge upon the plea in abatement, and this matter need not be further considered. We cannot look to recitals in the bill of exceptions upon this subj ect.’ ”

I am of the opinion that the ruling in Gray v. State, supra, is not applicable to the facts of this case. In Gray the plea in abatement complained of illegal composition of the grand jury and a ruling of the trial court in directing members of the Jury Commission that they need not answer questions of counsel. In the case, sub judice, the defendant, Sweeney, is misnamed in the indictments. This is not a case of “idem sonans” or “variant orthography”, as discussed in Goodwin v. State, 148 Tenn. 682, 257 S.W. 79, but a clear misnomer of the defendant as proscribed by statute (T.C.A. 40-1803), and case law, (State v. Hughes, 31 Tenn. 261), in this State. The indictments in this case are fatally defective.

It is unquestionable, under the authority of Gray, supra, that we cannot look to the bill of exceptions to determine this question, and it is equally unquestionable that a plea in abatement must be filed at the first opportunity. Bonds v. State, 220 Tenn. 555, 421 S.W.2d 87. However, Bonds, also holds that an attorney should have a reasonable time to investigate the feasibility of filing a plea in abatement. It would appear from the limited evidence in this record that counsel was endeavoring to comply with the rule under the circumstances of this case and that the trial court was precipitous in directing the manner in which the plea should be written and in overruling it. In view of the rule in this State regarding the strict construction to be given to plea in abatements, Lewis v. State, 38 Tenn. 329; Smartt v. State, 112 Tenn. 539, 80 S.W. 586, under the facts of this case, counsel should have been given an opportunity to prepare and file a proper plea in abatement. The authority on misnomer in an indictment is sparse in this State. State v. Hughes, 31 Tenn. 261, appears to govern in a case of this nature. The error was fatal and should have been corrected by the trial court.

The indictments in this case were returned on September 10th, 1971. Counsel was appointed for defendant, Sweeney, on September 13th, 1971. The cases came to trial on September 27th, 1971. There is nothing in the record to indicate when Sweeney was returned from the penitentiary to Williamson County for trial, beyond counsel’s statement to the court that he had not had an opportunity to speak with the defendant. After counsel was appointed on September 13th, 1971, the trial court thereupon adjourned until September 27th, the date of the trial. While there is nothing in the technical record which indicates the plea in abatement was filed, the technical record does contain a motion for a speedy trial which was filed on June 28th, 1971, indicating this defendant’s name to be William D. Sweeney. There is not any indication in this record that defendant was known by any other name except in the indictments.

While it is true that this defendant did not raise any question about the sufficiency of the evidence to sustain his conviction, and no testimony or evidence was presented to rebut the State’s proof establishing his guilt, a valid conviction cannot rest on a void indictment. It seems apparent that State action was involved in the peremptory action of the trial court in ruling on the plea in abatement when it was presented by appointed counsel prior to any plea to the indictments.

There is some thought that our Supreme Court has departed from the rule laid down in State v. Hughes, supra, in Goodwin v. State, supra, but an examination of these opinions does not sustain that conclusion. The Supreme Court has cited Hughes with approval in Bolin v. State, 219 Tenn. 4, 405 S.W.2d 768 (1966), and in my view there has been no indication by that Court that Hughes has been overruled.

The bill of exceptions reflects that in Case No. 1337, the jury returned a verdict of guilty of escape with a sentence of three years against the defendant, Sweeney. This was confirmed by the trial court and judgment was entered for “an indeterminate period of not less than one nor more than three years”. The technical record reflects that in the order overruling the motion for new trial, the trial judge stated the sentence fixed by the jury in Case No. 1337 against the defendant Sweeney, to be one year and fixed sentence for “an indeterminate period of not less than one year nor more than one year. In such a case of conflict between minutes of the Court and the bill of exceptions the recital in the bill of exceptions is controlling over the contrary minute entry. Phillips v. State, 1 Tenn.Cr.App. 352, 443 S.W.2d 515; Bailey v. State, Tenn.Cr.App., 479 S.W.2d 829. It is proper to note this discrepancy for the purpose of the record.

The convictions in this case were for escape, armed robbery, and taking an automobile without the owner’s consent. In Acres v. State, 484 S.W.2d 534, in considering a similar question our Supreme Court had this to say:

“We come now to the question as to whether or not two convictions in this case, that of murder in the first degree and that of armed robbery can be allowed to stand. We think not.”

“There is no doubt that these two offenses were committed at the same time and were parts of a single continuing act inspired by the same criminal intent essential to each offense, and were susceptible to but one punishment, and conviction of one is a bar to conviction of the other, Walton v. State, 1 Tenn.Cr.App. 668, 448 S.W.2d 690; Cronan v. State, 113 Tenn. 539, 82 S.W. 477; State v. Covington, 142 Tenn. 659, 222 S.W. 1; Patmore v. State, 152 Tenn. 281, 277 S.W. 892; Dowdy v. State, 158 Tenn. 364, 13 S.W.2d 794; English v. State, 219 Tenn. 568, 411 S.W.2d 702.”

“The defendant Acres was convicted under two separate indictments, that of murder in the first degree and that of armed robbery. The two offenses were parts of a single continuing act, and we are of the opinion that it was error for the court below to pronounce judgment for both crimes as charged in the indictments.”

When this Court finds that only one of the two judgments can stand, the judgment for the greater offense should be allowed to stand. This is the accepted rule.”

In this case I would reverse as to the defendant, Sweeney, and remand for filing and consideration of the plea in abatement, and such other action necessary to a trial under a valid indictment.

As to the defendant, Russell, in Case No. 1334, wherein defendant was given a sentence of one to three years for escape; and Case No. 1366 where he was sentenced to one year for taking a motor vehicle without the owner’s consent, I am of the opinion that the rule stated in Acres, supra, is controlling. Those judgments should be reversed and dismissed. The judgment in Case No. 1335, as to the defendant, Russell, and the sentence of ten years for . armed robbery should be affirmed.