Bandy v. State

• Decision Date: 02 January 1979
• Parties: Bobby BANDY and Larry Bandy, Petitioners, v. STATE of Tennessee, Respondent. 575 S.W.2d 278
• Court: Tennessee Supreme Court

Page 278

575 S.W.2d 278

Bobby BANDY and Larry Bandy, Petitioners, v. STATE of Tennessee, Respondent.

575 S.W.2d 278

Supreme Court of Tennessee.

Jan. 2, 1979.

Charles H. Beaty, Robert L. Swann, Phillip A. George, Gallatin, for petitioners.

Brooks McLemore, Jr., Atty. Gen., William O. Kelly, Asst. Atty. Gen., Nashville, for respondent.

OPINION

FONES, Justice.

Defendants were convicted of concealing stolen property valued at less than one hundred dollars and sentenced to serve not less than one nor more than five years. The Court of Criminal Appeals affirmed the convictions. Our grant of certiorari was limited to defendants' first assignment of error asserting, in substance, that the property had lost its status as stolen property because it had been recaptured by the police before it came into defendants' hands with the result that an essential element of the crime was missing.

The evidence adduced at trial showed that defendant Bobby Bandy requested Gary Rogers to steal E-9 herbicide for him from the Sumner County Farmer's Co-Op. On March 22, 1976, Rogers burglarized the Co-Op but could not obtain the requested herbicide and instead stole a socket wrench set. The following day, Rogers telephoned Bandy to inform him of the items that he had stolen. Bandy told him to bring the stolen goods to him.

Rogers subsequently went to the Gulf service station where he was employed, and was questioned by Detective Beasley concerning recent C.B. radio thefts in the area. As a result of his questioning, Beasley was allowed to search a car belonging to Leon McCoin, in which Rogers had stored the socket wrench set and jumper cables and cattle prods that he previously had stolen. Upon discovering the property and further questioning of Rogers, Beasley persuaded him to cooperate with police and set up an appointment with Bandy for 7:00 that evening at Bandy's package store.

Pursuant to the police plan, Rogers drove to Bandy's store with Detective Beasley hidden in the car's trunk. Upon arrival Bandy directed Rogers to follow his pickup truck down the Old Saw Mill Road. At this time, Bandy's uncle, Larry Bandy, arrived and followed in his pickup truck closely behind Roger's automobile. Shortly thereafter, Bobby Bandy stopped his vehicle at a secluded area and told Rogers to give him the stolen goods. Bandy put the goods in his car's trunk, at which point Detective Beasley appeared and with the aid of two other policemen who had been conducting surveillance of the transaction, arrested defendants.

This is a case of first impression in this State. In affirming the convictions, the Court of Criminal Appeals recognized that cases in other jurisdictions have established the rule that a conviction of receiving or concealing stolen property cannot be sustained where the evidence shows that the stolen goods have been recovered by the police and have lost their character as stolen property, nullifying an essential element of the crime. See, e. g., United States v. Cawley, 255 F.2d 338 (3d Cir. 1958); Felker v. State, 254 Ark. 185, 492 S.W.2d 442 (1973); People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906). Without citation of authority, the intermediate court held that a mere fortuitous event, unknown to defendants, should not allow them to escape the consequences of their criminal intent and criminal acts, in furtherance thereof. Our research reveals that while no jurisdiction supports that result, there is good authority to the effect that a defendant may be convicted of an attempt to receive or conceal stolen property notwithstanding the fact that, unknown to him, the stolen property has lost its character as such through recapture. People v. Rojas, 55 Cal.2d 252, 10 Cal.Rptr. 465, 358 P.2d 921 (1961), exemplifies that line of cases. There is a line of cases, however, that rejects conviction for an attempt to receive or conceal stolen property in the circumstances under consideration, following the 1906 landmark decision in People v. Jaffe, supra. We are persuaded that the reasoning and result of Rojas should be adopted in Tennessee.

Defendants rely on People v. Jaffe, supra, in which the court held, under facts identical to the case at bar, that an attempt to do an act which would not be criminal if completed could not itself be criminal regardless of the actor's intent. Accord, United States v. Berrigan, 482 F.2d 171, 187-90 (3d Cir. 1973); People v. Jelke, 1 N.Y.2d 321, 329, 152 N.Y.S.2d 479, 135 N.E.2d 213, 218 (1956); Booth v. State, 398 P.2d 863 (Okl.Cr.1964). The reasoning of the Jaffe decision became the cornerstone of the doctrine of "legal impossibility", and courts have recognized a defense to inchoate crimes based on this doctrine. ¹ In contrast, courts generally have recognized that a "factual impossibility" would not provide a defense to an attempt crime. Thus a pickpocket could be convicted of an attempt to steal even though his victim's pocket was empty. E. g., State v. Wilson, 30 Conn. 500 (1862). Similarly, this Court has held that a defendant who had been observed to have opened a cash drawer could be convicted of attempt to commit larceny, despite the absence of evidence that there were money or other valuables in the drawer. Clark v. State, 86 Tenn. 511, 8 S.W. 145 (1888). See generally Annot., Impossibility of Consummation of Substantive Crime as Defense in Criminal Prosecution for Conspiracy or Attempt to Commit a Crime, 37 A.L.R.3d 375 (1971) and cases cited therein. These cases simply have recognized that the defendant was deserving of conviction just as much as if he had succeeded; the fortuitous circumstances that prevented the attemptor's success should not exculpate him. As one commentator astutely observed, "No sane man ever really attempts to do what he knows is impossible." R. Perkins, Criminal Law 489 (1957).

The "legal impossibility" doctrine in modern times uniformly has been discredited by commentators who point out the obvious problems in distinguishing between "factual" and "legal" impossibility and its distortion of the underlying policy of attempt law. ² In People v. Rojas, supra, the court struck a death knell for the legal impossibility defense and held that a defendant could be convicted of attempt to receive stolen goods even though police, prior to delivery, had recovered the goods. In Rojas, the court reasoned:

"In our opinion the consequence of intent and acts such as those of defendants here should be more serious than pleased amazement that because of the timeliness of the police the projected criminality was not merely detected but also wiped out. . . ." 10 Cal.Rptr. at 468, 358 P.2d at 924.

The Rojas decision has been approved recently in other jurisdictions. See Darr v. People, 568 P.2d 32 (Colo.1977); Darnell v. State, 558 P.2d 624 (Nev.1976); State v. Niehuser, 533 P.2d 834 (Or.App.1975); State v. Carner, 25 Ariz.App. 156, 541 P.2d 947 (1975); State v. Tropiano, 154 N.J.Super. 452, 381 A.2d 828 (1977).

We note that Rojas and its progeny are consistent with the Model Penal Code § 5.01(1)(a). ³ However, we do not adopt the Model Penal Code provision because its general application to attempt crimes would take us beyond the scope of the issues involved in this case.

The foregoing brings us to the result that the convictions of defendants for concealing stolen property cannot be sustained, but that the proof will support convictions for an attempt to conceal stolen property.

In State v. Staggs, 554 S.W.2d 620 (Tenn.1977), we held that T.C.A. § 39-603 is our general attempt statute and that an attempt is a lesser included offense within any felony or crime punishable by imprisonment in the State Penitentiary, unless the punishment is otherwise prescribed. That case also affirms earlier cases in prescribing three elements of an attempt crime: (1) an intent to commit a specific crime, (2) an overt act, and (3) failure to consummate the crime. Gervin v. State, 212 Tenn. 653, 371 S.W.2d 449 (1963); Hall v. State, 490 S.W.2d 495 (Tenn.1973); Bennett v. State, 530 S.W.2d 788 (Tenn.Cr.App.1975). The evidence here establishes that these requirements have been met; Bobby Bandy and Larry Bandy, as aider and abettor, did manifest an intent to commit the crime of concealing stolen goods. The acts of the defendants clearly went beyond mere preparation. Cf. Dupuy v. State, 204 Tenn. 624, 325 S.W.2d 238 (1959). Finally, there was a failure to consummate the substantive offense because of the fortuitous act of the police in taking protective custody of the goods and negating their stolen status, prior...