Black v. State

• Decision Date: 14 April 1969
• Citation: 1 Tenn.Crim.App. 373,443 S.W.2d 523
• Parties: Peter BLACK, Jr., Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 523

443 S.W.2d 523

1 Tenn.Crim.App. 373

Peter BLACK, Jr., Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

April 14, 1969 Certiorari Denied by Supreme Court July 7, 1969.

Hugh W. Stanton, Jr., Memphis, for plaintiff in error.

George F. McCanless, Atty. Gen., Paul E. Jennings, Asst. Atty. Gen., Nashville, Billy F. Gray, Asst. Dist. Atty. Gen., Memphis, for defendant in error.

OPINION

OLIVER, Judge.

Peter Black, Jr., the plaintiff in error here and defendant below, was convicted in the Criminal Court of Shelby County of assault with intent to commit robbery and was sentenced to be confined in the penitentiary for three years. His motion for a new trial being overruled, he prayed and was granted and has perfected an appeal in the nature of a writ of error to this Court.

In his motion for a new trial and by appropriate Assignments of Error in this Court, the defendant insists (1) that the evidence is insufficient to sustain the verdict of the jury and preponderates against the verdict and in favor of his innocence, and (2) that the court failed to instruct the jury with reference to the lesser included offense of assault and battery, even though not requested to do so.

In considering the Assignments challenging the sufficiency of the evidence, we are bound by the well-established rule, settled by numerous decisions of the Supreme Court of Tennessee, that a verdict of guilt, approved by the trial judge, accredits the testimony of the State's witnesses, resolves all conflicts in the testimony in favor of the State and establishes the State's theory of the case; that under such a verdict the presumption of innocence which the law throws around an accused and which stands as a witness for him in his trial, disappears, and upon appeal that presumption of innocence is replaced by a presumption of guilt; that this Court is not permitted to reverse a conviction upon the facts unless the evidence clearly preponderates against the verdict of the jury and in favor of the innocence of the accused; that we may review the evidence only to determine whether it preponderates against the verdict; and that the defendant has the burden of showing on appeal that the evidence preponderates against the verdict and in favor of his innocence. Turner v. State, 216 Tenn. 714, 394 S.W.2d 635; Chico v. State, 217 Tenn. 19, 394 S.W.2d 648; Johnson v. State, 217 Tenn. 234, 397 S.W.2d 170; Brenner v. State, 217 Tenn. 427, 398 S.W.2d 252; Owens v. State, 217 Tenn. 544, 399 S.W.2d 507; Harris v. State, 217 Tenn. 582, 399 S.W.2d 749; Pryor v. State, 217 Tenn. 695, 400 S.W.2d 700; Monts v. State, 218 Tenn. 31, 400 S.W.2d 722; Patterson v. State, 218 Tenn. 80, 400 S.W.2d 743; Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523; McBee v. State, 213 Tenn. 15, 372 S.W.2d 173; Gulley v. State, 219 Tenn. 114, 407 S.W.2d 186; Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768.

This rule governing appellate review of criminal convictions makes unnecessary and, indeed, inappropriate, any detailed discussion of the evidence pro and con. Hargrove v. State, 199 Tenn. 25, 28, 281 S.W.2d 692, 694; Morrison v. State, 217 Tenn. 374, 397 S.W.2d 826, 400 S.W.2d 237.

Briefly summarized, the material evidence accredited by the jury shows that Charles E. Mallett parked his automobile late at night and was walking to the nearby Y.M.C.A. where he lived; that the defendant and another man attacked him; that he fought and struggled with these assailants for about five minutes, during which they knocked him down repeatedly and beat him so severely that he had to be hospitalized; that when five teen-age boys responded to his cries for help, his attackers fled and one of them took Mr. Mallet's tool box containing various instruments and tools and spare parts for an electric shaver, which he was carrying when attacked; that as one of the rescuers chased these assailants, the tool box was dropped and left in the street not far from the scene and was then and there recovered; and that Mallett's wallet, which he carried in his left front pocket, was not taken.

The defendant interposed the defense of alibi, maintaining that after he got off from work at 4:00 p.m. on the day in question he went to his room in a rooming house, read the book 'To Kill a Mockingbird' by Harper Lee, and went to bed; that he did not attack Mr. Mallett that night and had never seen him before a post-arrest police identification line-up.

The defense of alibi presents an issue of fact to be determined by the credibility of the witnesses and the weight to be given their testimony. Bright v. State, 191 Tenn. 249, 232 S.W.2d 53. The weight to be given alibi testimony is for the jury, as the judge of the credibility of the witnesses testifying in support of that defense. Palmer v. State, 187 Tenn. 527, 216 S.W.2d 25; Warren v. State, 178 Tenn. 157, 156 S.W.2d 416; Stinson v. State, 181 Tenn. 172, 180 S.W.2d 883; Smith v. State, 205 Tenn. 502, 327 S.W.2d 308. By their verdict, the jury rejected the defense of alibi in this case, and from a careful review of all the evidence we are of opinion that it does not preponderate against the decision of the jury upon that issue.

From the foregoing review of the evidence, the conclusion is inescapable that the defendant has failed to carry the burden of demonstrating here that the evidence preponderates against the verdict and in favor of his innocence.

Finally, the defendant's insistence with reference to the failure of the trial judge to charge the jury concerning the lesser included offense of assault and battery is altogether untenable. Although the defendant and his accomplice did not find or take the victim's wallet, the uncontroverted evidence is that one of them did take his tool box as they fled upon approach of the boys who came to his rescue. It is immaterial that these assailants retained possession of it and its contents for only a brief period of time and then abandoned it in the street. The slightest movement of the property of another by trespass is sufficient to satisfy the law's requirement of asportation, carrying away. Caruso v. State, 205 Tenn. 211, 326 S.W.2d 434; 52A C.J.S. Larceny § 6(b), pp. 426--427. Thus, assault with intent to rob was the only issue raised by the proof as far as the character and grade of the crime is concerned.

The law is firmly established, and plainly runs through all the decisions of the Supreme Court of this State on the subject, that a charge on lesser included offenses is essential and indeed mandatory, even without any request therefor (TCA § 40--2518), if and only if the proof raises such an issue. In other words, if the proof raises an issue as to whether the defendant was guilty of the offense charged or of some lesser offense embraced therein as a matter of law, then the court is required to instruct the jury with respect to all such lesser included offenses so raised. In the absence of any proof fairly raising such an issue for the consideration of the jury, if it is clear...