holding that Tennessee Code Annotated section 39-4914, which provided additional punishment for one who employs a firearm as a means of committing a felony, does not create a separate offense, but provides only for increased punishment and “the form of the indictment ... should have been in compliance with the construction of [section] 30-4914.”
How later courts described this case
- holding that Tennessee Code Annotated section 39-4914, which provided additional punishment for one who employs a firearm as a means of committing a felony, does not create a separate offense, but provides only for increased punishment and “the form of the indictment ... should have been in compliance with the construction of [section] 30-4914.”
Written by the judges who cited it.
The opinion
HENRY, Chief Justice,
concurring in part, dissenting in part.
I concur in the opinion of the Court except that I would affirm the Court of Criminal Appeals in the dismissal of the charge of carrying a pistol in violation of Sec. 39-4901, T.C.A. This pistol is “white hot” from overuse.
Petitioner has been punished adequately for this offense. First, his punishment was enhanced, under the armed robbery statute. Second, his punishment was enhanced under Sec. 39-4914, T.C.A.; and third, he was convicted of an assault with intent to commit murder with the same pistol. A fundamental regard for fairness demands that a fourth penalty not be exacted. The public policy has already been fully vindicated. No good purpose would be served by a fourth conviction based upon identical public policy considerations.
Quite aside from these evident considerations of fair play, I do not believe this conviction may stand under the double jeopardy clause of the state or federal constitutions. This conviction, in my view, must *421 fall under Harris v. Oklahoma, 433 U.S. 682 , 97 S.Ct. 2912, 2913 , 53 L.Ed.2d 1054, 1056 (1977), wherein the Court, quoting from In re Hans Nielsen, 131 U.S. 176 , 9 S.Ct. 672 , 33 L.Ed. 118 (1889), said:
[A] person [who] has been tried and convicted for a crime which has various incidents included in it, . cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.
The recent case of Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977), makes it clear that the Fifth Amendment “forbids successive prosecution and cumulative punishment for a greater and lesser included offense.”
In reaching this conclusion the Court commented at some length on Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), which provided a substantial part of the basis for our holding in Black, supra, and in concluding this portion of the discussion said:
For it is clearly not the case that “each statute requires proof of an additional fact which the other does not.” 284 U.S., at 304 . . . As is invariably true of a greater and lesser included offense, the lesser offense — joyriding—requires no proof beyond that which is required for conviction of the greater — auto theft. The greater offense is therefore by definition the “same” for purposes of double jeopardy as any lesser offense included in it. (Emphasis supplied). 97 S.Ct. at 2226; 53 L.Ed.2d at 195.
This conclusion is inescapable under Blockburger, supra, since under its test each case must require proof that the other does not.
I do not believe that carrying a pistol used in an armed robbery or in an enhanced assault is a separate and distinct crime under Blockburger . It must be borne in mind that the Blockburger test commands that “each ” offense require proof that the other does not.
I advert to the quotation from Brown v. Ohio, supra, and apropos thereto would point out that just as proof of auto theft would necessarily make out a case of joyriding, so would armed robbery establish a case of carrying a pistol. The evidence needed to prove the assault to murder and the robbery necessarily encompassed the proof that the defendant was carrying a dangerous weapon with intent to go armed. This case, therefore, fails the Blockburger test.
It is argued by the State, and asserted by the majority, that this “offense was completed both before and after the other offenses were committed.” This is analogous to the argument made in Brown v. Ohio that “the charges against him focused on different parts of his 9-day joyride.” To which the Supreme Court responded:
The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units. 97 S.Ct. at 2227, 53 L.Ed.2d at 196.
As the majority said in Black, supra, at 919:
each case requires close and careful analysis of the offenses involved, the statutory definitions of the crimes, the legislative intent and the particular facts and circumstances. (Emphasis supplied).
The application of these factors in the context of this case requires a dismissal of the charge of carrying a dangerous weapon.