Therefore we must conclude that police accident reports are within the ambit of the term `business records' contained in the Act." Gamble v. State, 215 Tenn. 26 ( 383 S.W.2d 48) was cited as a precedent. But the report is not admissible if it contains hearsay, conjecture or conclusions.
Furthermore, the Supreme Court of Tennessee has recently recognized that police department records are admissible under authority of the Tennessee Uniform Records Act (T.C.A. ยงยง 24-712 to 24-715). Gamble v. State, 383 S.W.2d 48, 57 (Sup.Ct.Tenn. 1964). Therefore, by the express command of Rule 43(a) of Federal Rules of Civil Procedure, the records most certainly would be admissible in a federal court sitting in Tennessee.
Where the criminal defendant raises an issue in his defense, he cannot complain of references to the issue by the prosecution, or argument on that issue, so long as the argument is fairly warranted by the facts and circumstances of the case. See Gamble v. State, 215 Tenn. 26, 383 S.W.2d 48 (1964); Coke v. State, 208 Tenn. 248, 345 S.W.2d 673 (1961); Smith v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959); Dortch v. State, 517 S.W.2d 24 (Tenn.Cr.App. 1974); see also United States v. Hoffa, 349 F.2d 20, 50-51 (6th Cir. 1965). The record in this case amply demonstrates that the allegedly prejudicial and improper arguments regarding possible civil liability and the wealth and social status of defendants were made in response to issues raised by the defense.
Throughout all of our cases, there is to be found no semblance of a disposition on the part of the Court to regard any failure to meet the requirements of this statute, respecting the general charge, as anything but reversible error. Manier v. State (1872) 65 Tenn. 595; Newman v. State (1837) 65 Tenn. 164; State v. Becton (1874) 66 Tenn. 138; State v. Bungardner (1874) 66 Tenn. 163; Duncan v. State (1874) 66 Tenn. 387; Frady v. State (1875) 67 Tenn. 349; State v. Missio (1900) 105 Tenn. 218, 58 S.W. 216; Munson v. State (1919) 141 Tenn. 522, 213 S.W. 916; Humphreys v. State (1933) 166 Tenn. 523, 64 S.W.2d 5; Adcock v. State (1951) 191 Tenn. 687, 236 S.W.2d 88; Pedigo v. State (1951) 191 Tenn. 691, 236 S.W.2d 89; Black v. State (1956) 201 Tenn. 15, 296 S.W.2d 833; Tomlin v. State (1960) 207 Tenn. 281, 339 S.W.2d 10; Taylor v. State (1963) 212 Tenn. 187, 369 S.W.2d 385; Gamble v. State (1964) 215 Tenn. 26, 383 S.W.2d 48; Keith v. State (1966) 218 Tenn. 395, 403 S.W.2d 758; Bolin v. State (1966) 219 Tenn. 4, 405 S.W.2d 768. The early case of Duncan v. State, supra, is factually identical to the situation presented on this appeal. There, it was held that the failure to have the jury take the written charge with them for deliberation constituted reversible error.
The defendant's sixth assignment of error objects to statements of the Attorney General, made in his closing argument, that the jury could infer from the failure of the defendant to introduce any witnesses that there were none to substantiate defendant's theory that Mrs. Wheeler and the deceased, Rouse, were having an affair of some sort. The opinion of this Court in Gamble v. State (1964) 215 Tenn. 26, 383 S.W.2d 48, makes it clear that it is not reversible error for the State to refer to the failure of the defendant to put on witnesses or present evidence, as opposed to reference made to the failure of the defendant, himself, to testify. The defendant's seventh assignment of error urges that the trial court erred in allowing the Attorney General, in his argument, to state to the jury that they would be allowed to return a verdict of ninety-nine years. It is insisted that this invades the exclusive province of the jury in determining the proper punishment.
This is not the first time this Court has been presented with this issue. In Gamble v. State, 215 Tenn. 26, 383 S.W.2d 48, several assignments of error were based upon the failure of the State to produce tape recordings of certain police radio conversations although "radio logs" were produced. Regarding this issue, the late Mr. Justice Andrew O. Holmes said:
* * * `[t]he charge or instruction required by law to be reduced to writing is only that which the court may have to say to the jury in regard to the principles of law applicable to the case and to the evidence; * * * statements as to the form or character of the verdict' need not be in writing. Taylor v. State, supra; Gamble v. State, 215 Tenn. 26, 383 S.W.2d 48 (1964). While the response of the trial judge to the jury's inquiry in the case at bar did not concern the form or character of the verdict, it also clearly did not concern "the principles of law applicable to the case and to the evidence."
The failure, however, of one to testify in his own behalf in court is not to be considered by the jury in determining his guilt or innocence and may not even be commented upon by counsel as we have held in many cases. T.C.A. sec. 40-2403; Gamble v. State, 215 Tenn. 26, 383 S.W.2d 48 (1964) We have considered the cases cited in the able brief of plaintiff in error but we do not think they are in point in the instant case.
In Petree v. State, supra, this court recognized that when an entry is made with felonious intent, the crime of burglary is complete and the actual larceny committed after entry is a separate offense. However, in Petree, there is language indicating that the court did not disapprove of an indictment charging both burglary and larceny in the same count. The Supreme Court had previously held in Gamble v. State, 215 Tenn. 26, 383 S.W.2d 48 (1964), that the charging of burglary and larceny in the same count is an exception to the general rule against duplicity, quoting from 13 Am.Jur.2d, Burglary, ยง 41 (1964). The holding was obviously premised on the proposition that the two offenses were merged into one.
It is common and correct practice to charge burglary, larceny, receiving stolen property and concealing stolen property in separate counts in an indictment when all those offenses relate to one criminal episode. And such an indictment is not objectionable for duplicity. Cronan v. State, 113 Tenn. 539, 82 S.W. 477. See: Gamble v. State, 215 Tenn. 26, 383 S.W.2d 48. We reviewed the principle involved in Halquist v. State, 489 S.W.2d 88 (Tenn.Cr. App. 1972):