Bennett v. State

• Decision Date: 01 July 1975
• Citation: 530 S.W.2d 788
• Parties: Freddie Lee BENNETT, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 788

530 S.W.2d 788

Freddie Lee BENNETT, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

July 1, 1975 Certiorari Denied by Supreme Court Sept. 22, 1975.

Robert M. Stivers, Jr., Ronald E. Hedges, Knoxville, for plaintiff in error.

R. A. Ashley, Jr., Atty. Gen., Tom Jennings, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Knoxville, for defendant in error.

OLIVER, Judge.

OPINION

On the 24th of September 1973, the Knox County grand jury returned two separate indictments against the defendant, one charging him with attempting to commit burglary by attempting to break and enter in the nighttime a motel room rented to one Richard Garrett, with the intent to commit larceny (TCA §§ 39--603, 39--901), and the other with unlawfully carrying a pistol with the intent to go armed (TCA § 39--4901). Without any indication of objection, the two cases were tried togehter since both were grounded upon a single event. Convicted in both cases, the defendant was sentenced to not less than two nor more than five years upon the attempted burglary charge, and to a fine of $50 for carrying a pistol. Represented here by the same two attorneys who represented him by appointment in his trial, the defendant has brought his cases to this Court by an appeal in the nature of a writ of error contesting the validity of his convictions and his sentence for the attempted burglary.

By his third and fourth Assignments of Error the defendant challenges the sufficiency of the evidence as to each of the convictions.

In summary, the evidence adduced by the prosecution established that the night of July 19--20, 1973, officers of the Knoxville Police Department established surveillance of the Magnolia Motel, suspecting that a burglary might be committed there. Officer Sands was in a room of the motel, looking through a slightly-opened door, from which position he could view the entrances to the rooms on one wing of the L-shaped buildings. The motel was well lighted by electric lamps in front of the rooms.

About 3:00 a.m., Officer Sands saw a black male, whom he identified as the defendant, approach the row of rooms from the far end of the building. The defendant peered through the window of each of the rooms, and when he got to room number 10 (the third in the row of rooms) he first looked through the window and then went to the door and put his left hand into his pocket and withdrew it. He then bent down next to the door, placed his right hand on the door knob, and made a 'jiggling' motion of the knob with his left hand. Observing all of this, Officer Sands called his superior, Captain Patty, on his portable radio. When the dispatcher asked him to repeat his message, his radio made a loud blaring sound. The defendant then stood up suddenly, removed his hands from the door knob, and pulled something out from under his belt and threw it toward shrubbery behind him. He then ran and was cornered and captured almost immediately in the alley behind the motel.

The object which Officer Sands saw the defendant take from his belt and throw into the bushes was dark colored and appeared to be five or six inches long, but this officer did not get a sufficient view of it to tell what it was. So Officer Sands asked Officer Dunaway to look in the area where the object had landed, and there, beside a bush some 10 feet from the entreance to room number 10, he found a loaded .22 caliber blue steel pistol. Later test firing by the police demonstrated it to be in working order, although it was dirty.

It was stipulated that room number 10 of the motel was rented to Richard Garrett on the night in question and that no one else was invited or given permission to enter that room that night. Through inadvertence no fingerprints were taken from the door knob or the pistol, the investigating officer assuming they had already been dusted for prints.

Testifying in his own behalf, the defendant said that in the Clover Leaf Club near the motel he heard earlier in the evening that a wine-drinking and marijuana-smoking party was being held at the motel by some persons unknown to him; that no one is invited and 'Everybody goes there,' and he went looking for the party at the motel and walked down the row of rooms hoping to see or hear in which room it was in progress; and that when he neither heard nor saw any party, he turned and started walking back to the far end of the motel and heard a door slam and saw a policeman running toward him. He claimed that he did not peep into any of the rooms but 'might have turned my head that way,' that he never touched the door knob of room 10, that he did not hear any radio call, and that he did not at any time have the gun found in the bushes and that he did not throw it there.

The defendant's third Assignment assails the sufficiency of the evidence to convict him of an attempt to commit a felony particularly putting in issue whether the State proved the necessary intent to sustain his conviction for that offense. In 1 Wharton's Criminal Evidence (13th Ed.) § 6, p. 5, the rule is stated that: 'By the nature of things, some elements of an offense can be established only by circumstantial evidence, such as the defendant's knowledge or intent.'

From the nature of the defendant's actions at the door to room 10 of the motel, his peering through the windows of the other rooms, his flight when he became aware of the presence of others nearby by hearing the noise of the policeman's radio, and his patently flimsy and specious explanation of his presence and actions at that time and place, the jury concluded, and justly so, that his burglarious intent was plainly demonstrated.

Our Supreme Court has recently spoken of the elements essential to constitute an attempt to commit a crime. In Hall v. State, 490 S.W.2d 495 (Tenn.S.Ct.1973), the Court said:

'An attempt to commit a crime requires three elements: (1) the intent to commit a specific crime; (2) an overt act; and (3) failure to consummate the intended crime. 1 Wharton, Criminal Law and Procedure, § 71 at 151--152 (1957). It is a general proposition of the criminal law, however, that 'circumstantial evidence may determine . . . such facts or elements as the existence of an intent . . .' 3 Wharton, Criminal Evidence § 980 at 467--468 (1955). In fact, intent can rarely be shown by direct proof and must, necessarily, be shown by circumstantial evidence. While our cases say that all elements of a crime can be proved by circumstantial evidence, McClary v. State, 211 Tenn. 46, 362 S.W.2d 450 (1962); Smith v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959); Marable v. State, 203 Tenn. 440, 313 S.W.2d 451 (1958), we have no case directly on the effect of such facts as were proved in this case.

'In State v. Morelock, 164 N.W.2d 819 (Iowa 1969), the defendants were charged with attempt to break and enter a business establishment with intent to commit larceny. The evidence showed that when apprehended the defendants were attempting to gain illegal entry into a closed business establishment, they had damaged the door and lock by employing force, and they were apprehended at a time when entry was almost effected. They had in their possession gloves, a flashlight, a screwdriver, and a crowbar. The court held that the intent to steal could be inferred from the actual breaking and entering of a building which contains things of value or from an attempt to do so. A sample of other cases so holding is as follows: People v. Nelson, 89 Ill.App.2d 84, 233 N.E.2d 64 (1967); State v. McClelland, 164 N.W.2d 189 (Iowa 1969); State v. Jones, 143 Mont. 155, 387 P.2d 913 (1963); State v. Smith, 8 Ohio Misc. 148, 221 N.E.2d 627 (1966); Hutchinson v. State, 481 S.W.2d 881 (Tex.Cr.App.1972).

'These and other authorities warrant us in stating as a general proposition that where one is apprehended, attempting forcibly, or with present means of force, to gain illegal entry into a residence or a building in which there is property which is the subject of larceny, a jury would be warranted in inferring, in the absence of an acceptable excuse, that the entry was made, or attempted, with intent to commit larceny.'

See also: Long v. State, 478 S.W.2d 919 (Tenn.Crim.App.1972).

The defendant's fourth Assignment questions the sufficiency of the evidence to warrant and sustain the verdict of the jury finding him guilty of carrying a pistol with the intent to go armed. Obviously the jury was satisfied beyond a reasonable doubt, as we are, that the evidence that the defendant threw an object into the bushes...