# Whitwell v. State

> Tennessee Supreme Court · January 20, 1975 · 520 S.W.2d 338

URL: https://www.frixlaw.com/law-library/cases/9768941

## Case

- **Full name:** Dennis WHITWELL and Forrest McClain, Petitioners, v. STATE of Tennessee, Respondent
- **Court:** Tennessee Supreme Court
- **Decided:** January 20, 1975
- **Citations:** 520 S.W.2d 338; 1975 Tenn. LEXIS 701
- **Precedential status:** Published
- **Opinion:** Dissent by Harbison
- **Judges:** Fones, Henry, Brock, Harbison
- **Cited by:** 55 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9768941

## Opinion text

HARBISON, Justice
(dissenting).
I respectfully dissent from a portion of the opinion prepared for the Court by the Chief Justice. I have no particular disagreement with the procedural aspects of the case, insofar as the use of the writ of certiorari is concerned. I simply do not believe that there has ever been a jury verdict rendered in this case insofar as the charges of receiving and concealing stolen property are concerned. I therefore do not believe that a retrial of the petitioners on those charges would or could constitute double jeopardy.
It is highly doubtful, in my mind, that the jurors intended to return any sort of verdict. They reported that they were hopelessly deadlocked, but the very most that could be made of their informal colloquy with the trial judge was an acquittal of the charge of grand larceny and of an intent to steal. The trial judge later so held in a post-trial motion, and entered an order dismissing the indictment for grand larceny.
I am in agreement with the principal opinion that the acquittal of the charge of grand larceny probably carried with it, as a lesser included offense under the facts of this particular case, the charge of petit larceny, and I do not disagree with the result of the case insofar as the larceny charges are concerned.
The maximum that can be made of the statements of the jurors, however, is that they did not find the defendants guilty of grand larceny and did not think that the defendants had an intent to steal. I do not read the report of the jurors as acquitting the defendants of all criminal intent, and certainly an intent to steal is not an element of the offenses of receiving or concealing stolen property. Williams v. State, 216 Tenn. 89 , 390 S.W.2d 234 (1965). Indeed it has been held in this state that a defendant cannot be convicted both of larceny and of receiving and concealing stolen property in the same transaction. A conviction of one of these offenses necessarily results in an acquittal of the other. Peek v. State, 213 Tenn. 323 , 375 S.W.2d 863 (1964); Williams v. State, 216 Tenn. 89 , 390 S.W.2d 234 (1965).
It does not follow, however, that an acquittal of one of these offenses necessarily requires an acquittal of the other. I do not find that the jury made any reference whatever in their colloquy with the trial judge as to acquittal of the charges of receiving or concealing stolen property. The one juror who spoke stated that the defendants had taken and loaded the cattle but the jury did not “think they knew they were stealing at the time. . . ” He made no statement as to whether the defendants knew or should reasonably have been put on inquiry that the cattle in fact were not the property of the person from whom they had acquired access to the field or as to the state of mind of the defendants with respect to concealing the cattle. He simply said the jury could not “agree on anything else.” The only other charges against defendants, apart from larceny, were those of receiving and concealing.
There is evidence in the record that one of the trucks had tarpaulins around the bed in such manner that the contents thereof could not be readily discerned, and there was considerable testimony in the record that this was an unusual method of hauling cattle. There was conflicting evidence on the point, and the credibility of the defendants was sharply drawn into issue throughout this entire trial.
I do not think that the District Attorney or any other attorney could reasonably be said to have waived the right to poll the jury in light of the very indefinite and uncertain colloquy which occurred with the trial judge. The Tennessee statutes clearly give the right to either party in a civil or criminal case to poll the jury upon receipt of a jury verdict. T.C.A. § 20-1324 et seq. *346 Neither the judge nor counsel considered what the jurors reported to the trial judge to be a verdict in this case, and I do not think that there was ever any opportunity for anyone to poll the jurors. Indeed I am not at all sure that the colloquy with the jury should be treated as a verdict in any sense, and I think that the defendants have received very liberal treatment in this case by having a verdict entered in their favor on the post-trial motion as to the larceny counts. I certainly do not think that they are entitled to a dismissal of all of the charges against them.
This Court has always required that there be a clear, deimite and intelligible statement from a jury in order for their report to constitute a verdict. In the case of State ex rel. Myers v. Brown, 209 Tenn. 141 , 351 S.W.2d 385 (1961), the Court said:
“The word ‘verdict’ is from the Latin veredictum meaning a true declaration. It is the formal and unanimous decision or finding made by a jury empaneled and sworn for the trial of a cause and reported to the court upon the matters in question duly submitted to them upon the trial. Sitterson v. Sitterson, 191 N.C. 319 , 131 S.E. 641 , 51 A.L.R. 760 , and other cases. The word ‘verdict’ has also been defined as ‘the definitive answer given by the jury to the court concerning the matters of fact (and under Tennessee procedure matters of law under proper instruction from the court) committed to the jury for their deliberation and determination.’ ”
209 Tenn. at 148 , 351 S.W.2d at 388 .
In the case of Baldwin v. State, 213 Tenn. 49 , 372 S.W.2d 188 (1963), the Court, quoting from other authorities said:
“ ‘The verdict should be in language which is clear and certain as to its meaning and which cannot be mistaken.’ ”
213 Tenn. at 52, 372 S.W.2d at 189 .
In the same case the Court said:
“We think that this verdict is so unintelligible as to render it invalid. One can only speculate on what the jury intended to do in this case; and no evidence of their intention can be gleaned from the punishment imposed . . . ” (Ibid.)
In that case the Court ordered a mistrial because of lack of clarity in the jury verdict.
In the earlier case of Baldwin v. State, 185 Tenn. 205 , 204 S.W.2d 1018 (1947), the Court said:
“There is no verdict so long as there is any uncertainty or contingency as to the finality of the determination of the jury. . . The jury after hearing the evidence adduced at the trial and the charge of the court should act without regard to the effect of their verdict on the defendant or anyone else. There must be finality in so far as they are concerned.”
185 Tenn. at 207 , 204 S.W.2d at 1018 .
In that case the jury had announced that they found the defendant guilty, but they wished to recommend a suspended sentence on certain conditions, stating that if this were not acceptable they would like to go back for further consideration. In spite of the jurors’ statement, the trial judge put down a judgment of conviction and sentenced the accused to a penitentiary sentence. Reversing, this Court said:
“Obviously there was no verdict in the instant case. Cases are cited by the State in which there was a verdict followed by a recommendation. The verdict in these cases was accepted and the recommendation held to be surplusage. In each instance though there was finality in the jury’s determination. There was no hesitation or vacillation on their part; no telling the Court that if their recommendation was not accepted they *347 wanted to return and deliberate further. This statement of the jury within itself nullifies their verdict.” 185 Tenn. at 207-208 , 204 S.W.2d at 1019 .
It will be noted in the present case that one of the jurors protested the procedure of being queried by the trial judge as to their conclusions, after they had already reported that they were unable to agree. It seems to me that the trial judge was probably correct in the first instance in entering an order of mistrial and ordering the case to be retried in its entirety, because no formal verdict in any accepted sense of the term was ever rendered.
Everyone who has reviewed this record in the Court of Criminal Appeals and in this Court has agreed that there was ample evidence for the jury to convict these defendants on the charges of larceny. They have, therefore, been treated most liberally in obtaining, in effect, a belated directed verdict on those charges. They certainly should not be given the benefit of an acquittal of the charges of receiving and concealing stolen property upon a questionable inference to be drawn from the informal statement of the jurors in this case.
It is true that in Deerfield v. State, 220 Tenn. 546 , 420 S.W.2d 649 (1967) the Court held that the defendant could not be guilty of the crime of receiving stolen property, because he had received the property, or had taken possession of it, directly from the owner thereof. This was also true in the case of Franklin v. State, 202 Tenn. 666 , 308 S.W.2d 417 (1957).
That is not the factual situation in the present case. The defendants in this case did not take the cattle from the true owner, Mr. Grinder, or from his agent and custodian, Mr. Walker. They did not even purport to do so. Instead they took them, according to their testimony, upon the instructions of the third person, who allegedly gave them a key to the pasture, and who was not known by them to be either, the owner or acting for the owner. They in effect, therefore, received possession and access to the property from a third person, who was undertaking to exercise dominion and control over the cattle. Whether the defendants acted innocently or with guilty intent is, in my opinion, a question of fact to be determined by the jury from all of the circumstances, including the credibility of the defendants themselves.
I have the same opinion with regard to the matter of concealing stolen property. The defendants were en route to a livestock barn for the purpose of selling these cattle, and at least some of them were concealed from public view under circumstances which, to say the least, might have supported a finding by the jury that they were being transported in a concealed manner and with intent to conceal them from the true owner.
In all events, this Court is not required, on a petition for certiorari as used here, to determine whether the trial court acted correctly or not in refusing to direct a verdict for these petitioners on their post-trial motion. The question is simply whether they have, in fact, previously been acquitted of the remaining charges so that a retrial would constitute double jeopardy. In my opinion, they have not been so acquitted.
Whether the District Attorney will see fit to bring these cases to trial again solely upon the charges of receiving and concealing is a decision for him to make. In my view, however, there is no legal prohibition against his doing so as a result of the original mistrial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9768941. Public record. Not legal advice.