Anglin v. State

• Decision Date: 18 January 1977
• Citation: 553 S.W.2d 616
• Parties: Webb ANGLIN, Appellant, v. STATE of Tennessee, Appellee.
• Court: Tennessee Court of Criminal Appeals

Page 616

553 S.W.2d 616

Webb ANGLIN, Appellant, v. STATE of Tennessee, Appellee.

Court of Criminal Appeals of Tennessee.

Jan. 18, 1977 Certiorari Denied by Supreme Court June 6, 1977.

Seth W. Norman and Robert H. Schwartz, Nashville, for appellant.

Brooks McLemore, Atty. Gen., Robert E. Kendrick, Asst. Atty. Gen., Nashville, Robert L. Jones, Asst. Dist. Atty. Gen., Columbia, Jim T. Hamilton, Asst. Dist. Atty. Gen., Mount Pleasant, for appellee.

TATUM, Judge.

OPINION

The appellant, Webb Anglin, was convicted by a Maury County jury of aiding and abetting an assault with intent to commit armed robbery. His punishment was fixed at not less than 10 years nor more than 21 years in the State Penitentiary. We affirm the conviction.

Assignments I, II, V and VIII all attack the sufficiency of the evidence, saying (1) the evidence preponderates against the verdict; (2) the verdict is contrary to the law and the evidence; (3) that appellant was entitled to a directed verdict of acquittal; and (4) that the conviction cannot be sustained "merely by proof of the presence of defendant at or near the scene of the alleged offense". In considering these assignments, we will summarize the facts as shown by the accredited evidence:

Larry Jackson, an admitted accomplice, drug addict and felon, was the principal witness for the State. He testified that after becoming acquainted with the appellant, he met with the appellant, appellant's wife, Johnny Baker and Kim Brown at the appellant's office. (Appellant was a vacuum cleaner distributor and salesman). At this meeting, the appellant proposed an armed robbery of Cy Young. The appellant pointed out that since Young was a bootlegger, Young might have a large sum of money and might not report the robbery.

At approximately 3:30 or 4:00 o'clock P.M. on December 15, 1975, Larry Johnson, Johnny Baker and the appellant met at the appellant's residence in Columbia, Tennessee. The appellant furnished Johnson and Baker with ski masks and rubber gloves. He also furnished Johnson with a .38 caliber police special pistol. Baker had a .380 automatic pistol that he had previously purchased from the appellant.

The appellant then drove Baker and Johnson to Cy Young's combination residence and car lot, which was located approximately two miles from Columbia on the Iron Bridge Road. Baker and Johnson left the appellant's gray (or silver) 1975 Cadillac automobile near one end of the victim's driveway. They were wearing their ski masks and gloves and were armed with their pistols. The arrangement was that the appellant would drive around in the immediate vicinity of Cy Young's and pick them up in his automobile after the robbery was accomplished.

After walking to Cy Young's residence from the road, Baker and Johnson found Young's front door to be locked, although the appellant had assured them that it would be unlocked. They then knocked on the door and had some conversation with Cy Young about buying an automobile. When Cy Young came to the door, he looked through a peep-hole instead of opening the door, and saw at least one of the would-be robbers outside of his door. He closed the peep-hole and then immediately telephoned the police. Johnson shot at Cy Young's doorknob at least two times and fired other shots while leaving. Baker shot at the wall and side window as he was leaving.

As Baker and Johnson approached the Iron Bridge Road, they saw the appellant's car on the road, but they also saw "blue lights" coming in the opposite direction. They left the road and hid under a fence with honeysuckle vines for about three hours, in the rain, until it was dark. Johnson and Baker then walked to Stone's Bar-B-Q where they telephoned the appellant's residence and later, Kim Brown came after them in a Pinto automobile owned by the appellant's wife.

Deputy Sheriff Bob Baucom testified that according to his records, he received the telephone call from Young at 4:31 P.M. and arrived at the scene at 4:36 P.M. As he approached, he observed a gray Cadillac occupied by the appellant sitting in the road near the iron bridge, about 100 yards from Cy Young's driveway. There were no other vehicles in the vicinity. When the patrol car approached, the Cadillac drove off. The officer turned around and, with his blue lights flashing, followed the gray Cadillac, but the Cadillac did not stop until it reached the Columbia City Limits. The appellant was the only occupant of the Cadillac. He told the officer that he was in the area to meet "a man" to demonstrate a vacuum cleaner. There was no other residence in the vicinity of Cy Young's place. The officer did not arrest the appellant at that time. He was arrested only after the witness, Larry Johnson, implicated him in the attempted robbery.

The appellant testified that he was in the area of the attempted robbery on his return from the home of Mrs. Iris Brown, where he had been demonstrating vacuum cleaner equipment. He said that he had met a sales trainee in the area who accompanied him to Mrs. Brown's residence and that after the demonstration, he returned the sales trainee to the sales trainee's vehicle. He said that he took a different route from the Brown residence, hoping to find a better way back to Columbia and thereby, came upon the Iron Bridge Road.

Mrs. Iris Brown testified as a witness for the appellant, but she testified that the appellant had been to her house "the first part of December". She said that Mickey Wright was with the appellant that day and that the two of them were traveling together. She also testified that it made no sense at all for one to travel between her house and Columbia by way of the Iron Bridge Road. Mrs. Brown further testified that two or three weeks prior to trial, the appellant requested that she testify that he had been alone on the day of the demonstration, but that she had refused to comply with this request.

Mickey Wright testified that he had accompanied the appellant on the occasion when the vacuum cleaner was demonstrated to Mrs. Brown, in early to mid-December of 1975. He also testified that he traveled with the appellant in the Cadillac from the appellant's office in Columbia to Mrs. Brown's house and returned to Columbia with him. He said that they did not go to or from the Brown residence by way of the Iron Bridge Road or Cy Young's place.

The appellant says that his mere presence at the scene of the robbery is insufficient to make him a principal under the provisions of T.C.A. § 39-109, citing Essary v. State, 210 Tenn. 220, 357 S.W.2d 342 (1962). We agree that in order to be deemed a principal offender under T.C.A. § 39-109, one must not only be present at the scene of a crime, but must be either aiding and abetting in the criminal offense or ready and consenting to aid and abet in the commission of the offense. We find ample evidence in the record to support the jury's verdict that the appellant was not only present, but that he aided and abetted and was ready and consenting to further aid and abet in the commission of this offense.

The appellant also insists that he was convicted upon the uncorroborated testimony of an accomplice. Larry Johnson was definitely an accomplice. The rule requiring corroboration of the testimony of an accomplice to sustain a conviction is set out in Hawkins v. State, 4 Tenn.Cr.App. 121, 469 S.W.2d 515, 520 (1971):

". . . The rule, simply stated, is that there must be some fact testified to, entirely independent of the accomplice's testimony, which, taken by itself, leads to the inference, not only that a crime has been committed, but also that the defendant is implicated in it; and this independent corroborative testimony must also include some fact establishing the defendant's identity. State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460; Boulton v. State, 214 Tenn. 94, 377 S.W.2d 936. This corroborative evidence may be direct or entirely circumstantial, and it need not be adequate, in and of itself, to support a conviction; it is sufficient to meet the requirements of the rule if it fairly and legitimately tends to connect the defendant with the commission of the crime charged. Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811. It is not necessary that the corroboration extend to every part of the accomplice's evidence. The corroboration need not be conclusive, but it is sufficient if this evidence, of itself, tends to connect the defendant with the commission of the offense, although the evidence be slight and entitled, when standing alone, to but little consideration. Stanley v. State, 189 Tenn. 110, 222 S.W.2d 384; Binkley v. State, Tenn.Cr.App., 434 S.W.2d 336.

'The entire conduct of the accused may be looked to for the corroborating circumstances; and if, from those circumstances, the crime may fairly be inferred, the corroboration is sufficient. See 23 C.J.S. Criminal Law § 812(4).' Binkley v. State, supra.

The quantum of evidence sufficient to corroborate the testimony of an accomplice is for the determination of the jury. From the facts proved in evidence the jury is entitled to draw reasonable inferences, and this Court may not substitute its judgment or inferences for those of the jury. Stanley v. State, supra; Binkley v. State, supra."

See also, Monts v. State, 214 Tenn. 171, 379 S.W.2d 34 (1964); Henley v. State, 489 S.W.2d 53 (Tenn.Cr.App.1972).

The testimony of Cy Young, describing the attempted robbery, is sufficient in and of itself to corroborate the accomplice's testimony that the crime was committed. The testimony of Officer Baucom was sufficient corroboration of Johnson's testimony (that the appellant was waiting for Johnson and Baker). The jury was not bound to accept the appellant's explanation as to why he was in this vicinity. As above stated, the quantum of the corroborating evidence is a question for the jury and we have no difficulty in understanding why the jury resolved this question adversely to the appellant, in view of the testimony of...