There is no indication that the admission of the testimony affected the result of the trial. See Cole v. State, 475 S.W.2d 196, 201, 4 Tenn. Cr.App. 645 (1971). An earnest argument has been made to support the contention that the evidence was insufficient to prove the guilt of defendant beyond a reasonable doubt.
Where two or more defendants are charged jointly, with a single crime, it is proper to have the fact of guilt determined and punishment assessed in a single trial, unless to do so would unfairly prejudice the defendant's rights. See Woodruff v. State, 164 Tenn. 530, 51 S.W.2d 843; Cole v. State, 4 Tenn.Cr.App. 645, 475 S.W.2d 196. The assignment is overruled. Evans says the trial court erred:
It is fundamental law that one lawfully arrested may be searched in his person or premises where arrested, without a warrant, provided the search is incidental to the arrest. Armour v. Totty, Tenn.Sup.Ct., 486 S.W.2d 537; Batchelor v. State, 213 Tenn. 649, 378 S.W.2d 751; Greer v. State, 1 Tenn. Cr.App. 407, 443 S.W.2d 681; Cole v. State, 4 Tenn.Cr.App. 645, 475 S.W.2d 196, and cases therein cited. In addition to the authorities above stated, certainly the seizure of these items fall within the ambit of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.
State ex rel. Leighton v. Henderson, 1 Tenn.Cr.App. 598, 615, 448 S.W.2d 82; Canupp v. State, 3 Tenn.Cr.App. 249, 250, 460 S.W.2d 382; State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667. Accordingly, we have carefully reviewed the entire trial record of Marshall and Helton. No motion for a severance appears therein, nor was any mention of a severance made on the direct appeal. Furthermore, it is considered appropriate to mention in passing, for the petitioner's benefit, that a motion for a severance is addressed to the sound discretion of the trial court, Cole v. State, 4 Tenn.Cr.App. 645, 654, 475 S.W.2d 196, and that an equally fundamental rule of law is that a trial court's exercise of judicial discretion may not be reviewed collaterally in post-conviction proceedings, Ray v. State, supra, and cases cited therein. In a habeas corpus or post-conviction proceeding, the burden is on the petitioner to prove his allegations attacking the validity of his conviction.
Moreover, as stated in this Court's opinion affirming this petitioner's conviction, Gant v. State, supra, a motion for a severance is addressed to the sound discretion of the trial judge. Cole v. State, Tenn.Cr.App., 475 S.W.2d 196; Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1. A trial court's exercise of judicial discretion may not be reviewed by collateral proceedings, unless such discretionary action operates to deprive the accused of constitutional rights. Ray v. State, supra; Janow v. State, Tenn.Cr.App., 470 S.W.2d 19; Wooten v. State, Tenn.Cr.App., 477 S.W.2d 767.
The hearsay evidence did not affect the result of the trial and the assignment is overruled. See Cole v. State, Tenn.Cr. App., 475 S.W.2d 196. The defendant urges that the court erred in instructing the jury:
It is elementary that a motion for a severance is addressed to the sound discretion of the trial court, and that he will not be put in error for failure to grant a severance unless it can be shown that the defendant was clearly prejudiced thereby. Davis v. State, 1 Tenn.Cr.App. 479, 445 S.W.2d 933; Cole v. State, Tenn.Cr.App., 475 S.W.2d 196; Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1; Monts v. State, 218 Tenn. 31, 400 S.W.2d 722. And the test for determining whether one charged with a joint crime is entitled to a severance is whether he would be unfairly prejudiced in his defense by being put to a joint trial.
First, the law is settled and is no longer open to question that improper admission or rejection of evidence is not ground for reversal unless it shall affirmatively appear that the alleged error affected the result of the trial. Cole v. State, Tenn.Cr.App., 475 S.W.2d 196; T.C.A. ยง 27-117; Rule 14(6), Rules of Supreme Court of Tennessee, adopted by this Court. In our judgment, upon this record it cannot be said that admission of the questioned testimony of the officer corruptly influenced the jury or affected the result of the trial to the defendant's prejudice.
Moreover, as stated in this Court's opinion affirming this petitioner's conviction, a motion for a severance is addressed to the sound discretion of the trial judge. Cole v. State, Tenn.Cr.App., 475 S.W.2d 196; Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1. Furthermore, equally fundamental and determinative here, the law is settled that a trial court's exercise of judicial discretion may not be reviewed post conviction by habeas corpus. Janow v. State, Tenn.Cr. App., 470 S.W.2d 19; Wooten v. State, Tenn.Cr.App., 477 S.W.2d 767.