Opinion
Opinion filed December 6, 1957.
1. CRIMINAL LAW.
Where order attempting to extend time for filing bill of exceptions was not made within 30 days after overruling of motion for new trial, trial court was without authority to extend time and bill of exceptions filed 57 days after overruling of motion for new trial was a nullity and could not be considered for any purpose.
2. INDICTMENT AND INFORMATION.
Offense of injuring or defacing buildings or fixtures was includible in offense of unlawfully and feloniously breaking and entering a dwelling house. T.C.A. sec. 39-4504.
3. INDICTMENT AND INFORMATION.
There is no necessary connection between crime relating to injury to personal property and offense of breaking and entering, but inclusion of offense of injuring personal property in same count in indictment charging breaking and entering is not a fatal defect and such defect is waived by going to trial without objecting to form of indictment. T.C.A. sec. 39-4501.
4. INDICTMENT AND INFORMATION.
Under indictment charging defendant with "feloniously" breaking and entering a dwelling house with intent to commit a felony therein, quoted word embraces maliciously and wantonly. T.C.A. secs. 39-4501, 39-4504.
FROM GREENEDALE A. MYSINGER, Greeneville, BURKETT C. McINTURFF, Kingsport, for plaintiff in error.
JAMES M. GLASGOW, Assistant Attorney General, for the State.
Prosecution for malicious mischief. From adverse judgment of the Criminal Court, Greene County, Herman Conway Smith, Criminal Judge, the defendant brought error. The Supreme Court, Swepston, Justice, held that where order attempting to extend time for filing bill of exceptions was not made within 30 days after overruling of motion for new trial, trial court was without authority to extend time, and bill of exceptions filed 57 days after overruling of motion for new trial was a nullity and could not be considered for any purpose.
Judgment affirmed.
The plaintiff in error Clarence Collier was convicted of malicious mischief, was fined $250 and sentenced to the County jail for 11 months and 29 days, from which he has appealed and assigned three errors which would require a review of the evidence.
However, it appears that the bill of exceptions was not filed within the time allowed by a proper order of the court.
The motion for a new trial was overruled on January 25, 1957, and defendant was granted 45 days within which to prepare and file his bill of exceptions. On March 4, 1957, which was more than 30 days after the motion for new trial was overruled, the time for filing the bill of exceptions was attempted to be extended so as to give him 15 days from March 11, 1957. The bill of exceptions was filed on March 23, 1957.
Since the order attempting to extend the time for filing the bill of exceptions was not made within the 30 days after the overruling of the motion for new trial, the trial court was without authority to extend the time and the bill of exceptions can not be considered for any purpose, since it is a nullity. Duboise v. State, 200 Tenn. 93, 290 S.W.2d 646.
Another matter, however, needs to be adverted to. It appears from the purported bill of exceptions that counsel for the defendant and for the State orally stipulated that the indictment included both "breaking and entering" as well as malicious mischief. That agreement is attacked as being invalid but we can not consider the question from that point of attack because the agreement is reflected only by the purported bill of exceptions which can not be considered for any purpose.
However, the further point is made that considering the indictment alone which is part of the technical record, it does not include the offense of malicious mischief and would, therefore, not be sufficient to protect the defendant on a plea of former jeopardy for the same offense.
The material part of the indictment is as follows:
"Did unlawfully and feloniously break and enter a dwelling house by day, the property of Mrs. J.C. Payne, with the felonious intent to commit a felony therein, to-wit: felonious assault with an ax and did therein threaten to harm and kill persons therein and did with said ax destroy a door and other parts of said house and personal property therein."
The two relevant statutes are T.C.A. secs. 39-4501 and 39-4504 which read as follows:
"Destroying, injuring or secreting property or papers of another — Misdemeanor. — It is declared to be a misdemeanor to maliciously destroy, injure, or secrete any goods, chattels, or valuable papers of another."
"Injuring or defacing buildings or fixtures — Misdemeanor. — It is declared to be a misdemeanor wantonly to injure, deface, or disfigure any building or fixture attached thereto, or the inclosures thereof, belonging to the state, or any county, city, town, or to another person."
It is difficult to see how one could be guilty of breaking and entering a dwelling house without also being guilty of violating T.C.A. sec. 39-4504. Therefore, this lesser offense must be included within the greater.
On the other hand, there is no necessary connection between T.C.A. sec. 39-4501, which relates to injury to personal property, and the offense of breaking and entering. The inclusion of this latter offense or misdemeanor in the same count in the indictment charging breaking and entering is not, however, a fatal defect but is waived by going to trial without objecting to the form of the indictment in the trial court. Scruggs v. State, 66 Tenn. 38. As to waiver and curing by verdict see generally Johnson v. State, 187 Tenn. 438, 215 S.W.2d 816; Driscoll v. State, 191 Tenn. 186, 232 S.W.2d 28; Jones v. State, 197 Tenn. 667, 277 S.W.2d 371; Allen v. State, 199 Tenn. 569, 288 S.W.2d 439.
Again, the brief for the State points out that, while the indictment for malicious mischief must allege in substance that the acts were done maliciously or wantonly as held in State v. Click, 115 Tenn. 283, 90 S.W. 855, this Court has construed the term "feloniously", which appears in the indictment in the instant case, as embracing maliciously and wantonly. State v. Smith, 119 Tenn. 521, 105 S.W. 68.
The judgment below is affirmed with costs.