Howard v. State

¶1dissenting.

¶2Because the majority misconstrues our recent holding in Wright v. State, 549 S.W.2d 682 (Tenn.1977) and then proceeds to misapply its own construction, I must dissent.

¶3The majority asserts:

We believe that the better rule, and the one to be followed henceforth in this State, is the rule adopted implicitly by this court in Wright v. State, supra,that, in this context, an offense is necessarily included in another if the elements of the *86greater offense, as those elements are set forth in the indictment, include, but are not coextensive with, all the elements of the lesser. (Emphasis supplied)

¶4This is s 180 degrees removed from our holding in Wright, wherein we actually adopted the evidentiary test for determining what constitutes a lesser included offense. Sub silentio we rejected the statutory test which is roughly equivalent to the criteria quoted from the majority opinion. We held:

The true test of which is a lesser and which is a greater crime is whether the elements of the former are completely contained within the latter, so that to prove the greater the State must first prove the elements of the lesser. (Emphasis supplied) 549 S.W.2d at 685-86, quoting from Johnson v. State, 217 Tenn. 234, 243, 397 S.W.2d 170, 174 (1965).

¶5It is. a matter of proof and not the contents of the indictment.

¶6In reaching this conclusion we were careful to point out that we were dealing with a shoplifting case and that proof was necessarily considered in making the lesser included offense determination. It is evident from a careful reading of Wrightthat every larceny would not necessarily embrace or include shoplifting but, we said:

it would be utterly impossible to make out a case of petit larceny of merchandise from a retail mercantile establishment without establishing shoplifting. 549 S.W.2d at 685.

¶7Thus, we applied the evidentiary test, rejecting the statutory test of Yearwood v. State, 2 Tenn.Cr.App. 552, 455 S.W.2d 612 (1970), as applied by the YearwoodCourt. We pointed out that:

proof of larceny of merchandise from a retail establishment perforce of necessity involves proof of the essential elements of shoplifting. 549 S.W.2d at 686.

¶8Under the statutory test the elements of the two offenses, as reflected in the respective statutory provisions, are considered in the abstract, wholly apart from the facts established by the proof.

¶9When we apply the statutory test to the instant case it becomes clear that criminal trespass1 is not a lesser included offense to the crime of third degree burglary. The elements of third degree burglary are breaking and entering with felonious intent. § 39-904, T.C.A. The elements of criminal trespass are a forceable and unlawful entry constituting or calculated to constitute a breach of the peace.

¶10But when we apply the evidentiary test we may get an entirely different result.

¶11In the context of this case, wherein petitioner threw a brick through a schoolhouse window and thus gained entry into the building, the elements of criminal trespass are fully satisfied as are the elements of burglary. Therefore, applying the eviden-tiary rule, criminal trespass was a lesser included offense.

¶12It is true that burglary does not necessarily include criminal trespass, in all cases, because entry by force and violence sufficient to create or tend to create a breach of the peace is not a requirement of burglary. Thus every burglary need not include criminal trespass and every criminal trespass is not per se burglary. However, every burglary committed “with force amounting to a breach of the peace . . . [or] calculated to produce a breach of the peace” necessarily encompasses and includes criminal trespass.

¶13In the context of this case, and applying the Wrightrule, the right result is that petitioner was guilty of third degree burglary or criminal trespass. It was for the jury to say which; but only after being charged as to these options.

¶14I deplore the statement in the majority opinion that trial judges will receive “requests for instructions limited only by the imagination and ingenuity of the defend*87ant.” I have an abiding confidence in the trial bench and bar. Criminal defense lawyers and trial judges know that the charge, to include special requests, is circumscribed by the proof. The suggestion made by the majority is a reflection on the trial bench and bar and is unsupported and unsupportable.

¶15The majority opinion, immediately after giving an incorrect construction of the holding in Wright, asserts:

If there is evidence to support a conviction for such a lesser included offense, it must be charged. (Emphasis supplied)

¶16Amen! That is what this dissent is all about. There was such evidence.

¶17Applicable statutory and decisional law required that criminal trespass be charged in this case. Section 40-2518, T.C.A., provides:

It shall be the duty of all judges charging juries in cases of criminal prosecutions for any felony wherein two (2) or more grades or classes of offense may be included in the indictment, to charge the jury as to all of the law of each offense included in the indictment, without any request on the part of the defendant to do so.

¶18Section 40-2520, T.C.A., in pertinent part provides:

Upon an indictment for any offense consisting different degrees, . . . the defendant may ... be found guilty of any offense the commission of which is necessarily included in that with which he is charged, Whether it be a felony or misdemeanor.

¶19In State v. Staggs, 554 S.W.2d 620 (Tenn.1977), we quoted with approval from Strader v. State, 210 Tenn. 669, 682, 362 S.W.2d 224, 230 (1962):

He had the right to have all the law as to these different grades of offenses explained to the jury, in order that they might apply the law in determining whether he was guilty of any one or none of such offenses. He had this right because the statute (T.C.A., Sec. 40-2518) gave it to him, and because it was a part of his constitutional right of trial by jury to have every issue made by the evidence tried and determined by the jury under a correct and complete charge of the law given by the judge. (Emphasis supplied) 554 S.W.2d at 626.

¶20In considering this duty to charge, our courts have consistently applied an eviden-tiary test, i. e., there is no duty to instruct on a lesser included offense where there is no evidence to support such a charge. See, State v. Staggs, supra; State v. Mellons, 557 S.W.2d 497 (Tenn.1977); Whitwell v. State, 520 S.W.2d 338 (Tenn.1975); Carmon v. State, 512 S.W.2d 595 (Tenn.Cr.App.1974).

¶21I also would note that the Model Penal Code adopts the evidentiary test. Section 1.07(4)(a) states that an offense is a lesser included offense when “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” The Comment in Tent. Draft No. 5, p. 40 (1956), characterizes this rule as the “majority view.”

¶22Here the evidentiary test was met and the charge should have been given.

¶23I would reverse and remand for a new trial.