Jackson v. State

RUSSELL, Judge.

OPINION

Harold Lee Jackson appeals his first degree murder conviction and eighty year penitentiary sentence.

The first three assignments of error question the legal sufficiency of the convicting evidence. At about 11:40 p. m. on August 5, 1973, Michael Edward Whitten, a clerk at the Corner Grocery at South Parkway and Willett in Memphis, was killed by a shotgun blast directed at him by one of two armed robbers. Two eyewitnesses to this murder, both of whom knew Jackson at least by appearance before this night, identified him as the killer. Jackson did not testify, but offered an alibi defense through his father and brother; and also presented a witness who claimed to have seen the robbers running from the store and said that Jackson was not one of them.

The evidence certainly does not preponderate against the verdict. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

It is assigned as error that the State was allowed to peremptorily challenge a juror previously accepted. The record does not reflect this, except by allegation in the motion for a new trial. A motion for a new trial is but a pleading and does not establish the fact of an allegation therein. Mitchell v. State, 3 Tenn.Cr.App. 494, 464 S.W.2d 307 (1971). An alleged error will not be considered on appeal if the record contains nothing to support it. Baldwin v. State, 204 Tenn. 639, 325 S.W.2d 244 (1959).

Finally, it is assigned as error that the trial judge charged the jury as mandated by T.C.A. § 40-2707. While counsel on appeal makes a multi-pointed attack upon the statute, the motion for a new trial simply alleged that T.C.A. § 40-2707 is unconstitutional “because it violates Section II of the Tennessee Constitution.” Counsel doubtless meant Article II, dealing with the distribution of powers among the Legislative, Executive and Judicial departments. We have heretofore held that this statute is not a violation of the separation of powers concept. Sharp v. State, Tenn.Cr.App., 513 S.W.2d 189 (1974).

The Judgment is affirmed.

WALKER, P. J., and DUNCAN, J., concur.