The opinion
HENRY, Chief Justice.
I.
CONCURRING
I concur in so much of the majority opinion as holds that “the present offense, the punishment of which the State seeks to enhance, may not be used as one of the convictions necessary to bring the defendant within the definition of an habitual criminal.”
I file this concurring opinion because I feel under a form of moral compulsion to confess error in the conclusion reached by this Court in Pearson v. State, 521 S.W.2d 225 (Tenn.1975) wherein we unanimously declared:
The third conviction of one of the prescribed felonies is the triggering mechanism which brings the habitual criminal statute into play.
521 S.W.2d at 227
This admittedly erroneous dictum prompted Judge Tatum’s holding in the opinion of the Court of Criminal Appeals. For its inclusion in Pearson , as a part of the “prelude to our consideration of the petitioner’s double jeopardy claim”, 521 S.W.2d at 227 , I take full responsibility.
At the time I prepared the opinion in Pearson , I was fully aware of the successive holdings in McCummings v. State, 175 Tenn. 309 , 134 S.W.2d 151 (1939); Brown v. State, 186 Tenn. 378 , 210 S.W.2d 670 (1948); and Wright v. State, 217 Tenn. 85 , 394 S.W.2d 883 (1965). However, I was also aware that these cases either did not address the issue or did not analyze the Habitual Criminal Statutes, § 40-2801, et seq., T.C.A.
Under these circumstances I followed the plain language of the statute which is couched in terms of a defendant having been “three (3) times convicted” of the various qualifying offenses, and thereby evincing a strong public policy established by the Legislature that those who have been “three (3) times convicted” should be removed from society as a class of confirmed criminals who are “menace[s] to society and should be confined to prevent the committal of other, and probably more serious, crimes.” McCummings v. State, 175 Tenn. 309, 311 , 134 S.W.2d 151, 152 (1939). Since a construction of this phase of the statutory scheme was not involved in Pearson , I had no reason to consider the matter in depth.
No reported decision affords any guidance as to the reason that a third conviction will not trigger the habitual criminal statutes. The majority opinion sheds no light upon the matter. It contains this unfortunate statement:
Clearly, then, to bring the defendant within the ambit of the statute, the state must show that he was an habitual criminal at the time he committed the principal offense. (Emphasis in original).
Habitual criminal status does not attach until a jury has so determined. What the state actually must show is that he has been convicted of three qualifying offenses prior to the time of the commission of the triggering offense and that those convictions have become final. The rationale of this statement appears infra.
*289 I look to the cases cited by the majority and as set out hereinabove.
In McCummings , the issue is not discussed. The question there was one of notice. The defendant first learned that he was going to be proceeded against as an habitual criminal during the voir dire examination of the jury. The indictment only charged the commission of the substantive offense, with no reference to the habitual offender statutes. This Court held that such a practice did not jeopardize the accused and upheld the imposition of the habitual criminal status. The Court suggested, however, “the practice of giving him notice in the indictment, or otherwise, as early as possible.” 175 Tenn. at 318-14 , 134 S.W.2d at 153 . State v. Gore, 182 Tenn. 94 , 184 S.W.2d 366 (1945), was not cited in the majority opinion but specifically supports the four conviction rule. There the Court held to the four conviction requirement because of the State’s concession ( 182 Tenn. at 97 , 184 S.W.2d 366 ) and did not address the issue. The principal complaints made by the defendant were^ that (1) the indictment did not alert him that the Habitual Criminal Statutes would be invoked and (2) that he was not given notice that he would be proceeded against under this law until so short a time before his trial that he had no opportunity to prepare his defense. The Court rejected these insistences and affirmed.
In Brown, supra, the Court simply followed McCummings and Grandstaff. There the indictment contained a count on the Habitual Criminal Act. The Court held it to be “surplusage” because there was no requirement that he be charged with habitual criminality in the indictment. The Court held that the statute itself is notice.
It should be pointed out that the principal holdings of these three cases were obliterated by the enactment of Section 11863.5 of the 1950 Supplement to the Official Code, which modified Section 5, of the Acts of 1939 (See Sec. 40-2803, T.C.A.) so as to require the inclusion of the habitual criminal accusation in the indictment.
Wright, supra, the remaining case cited in the majority opinion, simply holds that four convictions were sufficient, without any analysis of the issue. The same is true of Beeler v. State, 206 Tenn. 160 , 332 S.W.2d 203 (1959).
Thus, it will be seen that as of this time our courts have not made even a simple analysis of the issue here involved.
In the face of at least a superficial legislative intent that three convictions will trigger the application of the Habitual Criminal Act, it becomes the duty of the Court to uphold the act and apply it in accordance with the plain provisions of the statute, unless other critical considerations force a contrary construction.
Here such a consideration is present. The only reason that the third conviction may not trigger the application of the statute is that it has not become final. It may be set aside by the trial judge or may be reversed on appeal. In either event the status of habitual criminality would be obliterated. The word “convicted” used in our Habitual Criminal Act must be construed to denote a final conviction. See Anno., 5 A.L.R.2d 1808 (1949). 1
A criminal defendant whose convictions of three qualifying offenses have become final may be proceeded against as an habitual criminal. His indictment need not await the finality of the qualifying convictions but the final imposition of the status may not be made until all underlying convictions have become final. But the statutory scheme contemplates a trial of the habitual criminal charge at the same time as that of the underlying felony.
The trial is bifurcated, with the jury first determining guilt of the underlying felony before considering the habitual criminal count. Harrison v. State, 217 Tenn. 31 , 394 *290 S.W.2d 713 (1965). 2 Upon the rendition of the verdict of guilty, the same jury considers the habitual criminal count. Beeler v. State, supra.
Thus, while the third final conviction forms the basis for the invocation of the Habitual Criminal Act, the fourth felony actually triggers its application and serves as the carrying vehicle to bring the habitual criminal charge before the Court.
II.
I respectfully dissent from the remainder of the opinion.
The following tabulation shows, in chronological order, petitioner’s pertinent criminal history:
Date Offense State
July 13,1961 Felonious escape Tennessee
October 11,1961 Felonious escape “
September 15,1964 Crime against nature “
March 6,1970 Larceny from the person Michigan
November 14,1973 Attempted breaking “ and entering
In the present case, the underlying felony conviction was for first.degree burglary.
I agree with the conclusion reached in the majority opinion that larceny from the person is a qualifying offense.
I disagree with and dissent from so much of the majority opinion as remands on the crime against nature question.
Judge Tatum, writing for the majority in the Court of Criminal Appeals, held that a crime against nature is a scheduled crime under the Habitual Criminal Act. His reasoning:
The term “Crime Against Nature” is an euphemism for the particular acts that constitute sodomy at common law. (citing Stephens and Locke, supra) Our courts, in effect, have held the terms “Crime Against Nature” and “Sodomy” to be synonymous.
I agree with this conclusion.
Section 39-707, T.C.A. denounces “[cjrimes against nature, either with mankind or any beast.” This “expression is a euphemism for the particular acts that constitute the offense of sodomy at common law” and “means the common law offense of sodomy.” Stephens v. State, 489 S.W.2d 542, 543 (Tenn.Cr.App.1972). It includes cunnilingus, Young v. State, 531 S.W.2d 560 (Tenn.1975); Locke v. State, 501 S.W.2d 826 (Tenn.Cr.App.1973), and fellatio, Young v. State, supra; “sodomy per anus and per os”, Cook v. State, 506 S.W.2d 955, 958 (Tenn.Cr.App.1973); and “all unnatural copulation with mankind or a beast, including sodomy.” Sherrill v. State, 204 Tenn. 427, 429 , 321 S.W.2d 811, 812 (1959), quoting State v. Cyr, 135 Me. 513 , 198 A. 743 (1938).
These definitions embrace all known forms of sodomy. Thus, under Tennessee law, sodomy is a crime against nature embracing carnal copulation between man and beast and all forms of unnatural, abnormal and deviant copulation between human beings, to include cunnilingus, fellatio and sodomy per anus.
As stated in Johnson, Crimes Against Nature in Tennessee: Out of the Dark and Into the Light, 5 Mem.St.L.Rev. 319, 329 (1975):
Most statutes prohibit acts that are referred to variously as sodomy, buggery, or crimes against nature. For the purpose of statutory law, these terms are equivalent; they are intended to reach the same kind of conduct.
This is the devolution of our law. It may not strictly accord with the common law, but it is too late now for us to overrule this established decisional law by attributing to the legislature an intent to use technically precise phraseology as opposed to words that have come to have a common meaning. In my view the legislature intended that all forms of crimes against nature be embraced within the term “sodomy”.
I would affirm the judgment of the Court of Criminal Appeals in respects, the re *291 quirements of the statute having been satisfied. I am authorized to state that Mr. Justice FONES concurs in Section II of this opinion.
. This holding is not at variance with the opinion of the Court of Criminal Appeals in Beard v. State, 542 S.W.2d 389 (Tenn.Cr.App.1976). There the Court was dealing with convictions that had become final in that they had been affirmed by the Court of Criminal Appeals and certiorari was not petitioned for.
. Harrison further holds that “[i]f the jury finds not guilty of the present crime then the habitual criminal count is not at issue.” 217 Tenn. at 34, 394 S.W.2d at 714. This is a correct conclusion because the fourth offense charged in the indictment is the carrying vehicle and without a conviction of the fourth offense there is no punishment to enhance.