The opinion
OLIVER, Judge
(concurring).
I concur in the result reached by the majority. However, it is considered that the following further observations are appropriate and should be included.
According to the record of the direct appeal to this Court prosecuted by the petitioner and his brother, Charles Alfred Cur-eton, both of them were duly adjudged to be indigent by the trial court and they were represented in their trial and appeal to this Court by court-appointed counsel.
This petitioner has not raised the question of improper jury argument by the District Attorney General prior to his purely conclusory statements contained in his present post-conviction petition. He did not raise that question in his motion for a new trial nor in his direct appeal to this Court. This is not to say, however, that failure to raise this matter during his original trial and direct appeal forever precludes all right of subsequent complaint and judicial review.
However, considering this case in its totality, I agree that this petition does not bring that question within the rule established by this Court in David Lee Schoon-over v. State, Hamilton Criminal # 10, decided May IS, 1968, and Isaac Bailey and Leonard Robinson v. State, Hamilton Criminal # 55, decided October 1, 1968 (both opinions unpublished). See also: Green v. State, Tenn.Crim.App., 450 S.W.2d 27 (concurring opinion).
This Court has previously held that various provisions of the Post-Conviction Procedure Act are mandatory. In Brown v. State, Tenn.Crim.App., 445 S.W.2d 669 , it was said:
“In prescribing the duties of the clerk (T.C.A. § 40-3806), the District Attorney General (T.C.A. § 40-3814), and the trial court (T.C.A. § 40-3818), in the above-quoted provisions of the Post-Conviction Procedure Act, the Legislature in each instance by use of the word ‘shall’ clearly indicated its intention to make the specified duties of those respective officials mandatory, and not merely directory or discretionary. Without the directed participation of the District Attorney General in these proceedings, the State is unrepresented; and this, in and of itself, may be prejudicial to the petitioner, considering the specified duties of the District Attorney General. Without a clear and detailed finding of fact by the trial judge, the petitioner and his counsel and the appellate court are at a complete loss to know the basis of the trial judge’s decision and judgment; assignment of errors and appellate review are seriously frustrated if not completely thwarted by lack of a definitive finding of fact by the trial judge. These official shortcomings alone would require reversal of the judgment of the trial court and remand for a new trial upon the petition.”
Historically, our Supreme Court has adhered to the general rule that the word “shall” ordinarily must be regarded and construed as expressing an unyielding mandate, and not as being merely directory or discretionary, when used in constitutions and statutes. Rounds v. State, 171 Tenn. 511 , 106 S.W.2d 212 ; Louisville & Nashville R. Co. v. Hammer, 191 Tenn. 700 , 236 S.W.2d 971 ; Morgan v. State, 86 Tenn. *239 472 , 7 S.W. 456 (1888); Ussery v. Avery, 222 Tenn. 50 , 432 S.W.2d 656 .
In Parker-Harris Company v. Tate, 135 Tenn. 509, 520 , 188 S.W. 54 , 57, the Court made this significant statement of law:
“It is a rule of statutory construction that where the same word is used in a statute more than once, and the meaning is clear at one place, it will ordinarily be construed to have that meaning elsewhere in the act. 2 Lewis’ Suth.Stat. Constr. (2d Ed.) p. 758.”
“So long as statutes are constitutional, the courts must perform their one duty of enforcing them.” Morgan v. State, supra.