Briggs v. State
| Decision Date | 05 January 1970 |
| Parties | James Daily BRIGGS, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. |
| Court | Tennessee Court of Criminal Appeals |
Raymond M. Briggs and Ross F. Houpt, Memphis, for plaintiff in error.
David M. Pack, Atty. Gen., Thomas E. Fox, Deputy Atty. Gen., Nashville; Phil M. Canale, Jr., Dist. Atty. Gen., Terry L. Lafferty, Asst. Dist. Atty. Gen., Memphis, for defendant in error.
James Daily Briggs was convicted of embezzlement of more than one hundred dollars, and he was sentenced to three years in the penitentiary. His motion for new trial was overruled and he has appealed to this Court. He has been represented by employed counsel throughout the proceedings.
The defendant was employed by the City of Memphis to take the money from parking meters or coin boxes of a City parking lot in Memphis. The money was counted and turned in to the city treasury. When a shortage was suspected a police investigation was made, and the boxes were unlocked by officers at about six o'clock in the morning, the money counted, and the boxes were then kept under constant surveillance until the defendant opened them during his routine work when he removed the money. He failed to turn in all of the money which had been found to be in the boxes, and the charge of embezzlement followed.
When the defendant was arrested he admitted to the police that he had been taking money from the boxes for a long time and using it for his own purposes, spending part of it on slot machines in Mississippi.
The first four assignments of error complain that there is no evidence to sustain the verdict of the jury; that the verdict is contrary to the law and the evidence and that the evidence preponderates against the verdict and in favor of defendant's innocence.
A reading of this record by a person with an unbiased mind does not lead one to believe that there is any merit whatever to the contention that the evidence preponderates against the verdict of guilty. On the contrary there is ample evidence of guilt, accompanied by the defendant's admission, which we will discuss later. It is well established in this State that a verdict of guilt in a criminal case, 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. The presumption of innocence disappears, and upon appeal that presumption of innocence is replaced by a presumption of guilt. This Court will not reverse a conviction upon the facts unless the evidence clearly preponderates against the verdict of the jury in favor of the innocence of the accused, and the defendant on appeal has the burden of showing that the evidence does preponderate against the verdict and in favor of his innocence. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173; Brown v. State, Tenn.Cr.App., 441 S.W.2d 485.
The defendant testified at the trial and denied that he had taken any money wrongfully from the boxes. He also introduced other evidence to show that other people had an opportunity to take money from the boxes. He stated that the officers did not advise him of his legal and constitutional rights; and he further said that he did not give them any statement.
The jury and the trial judge saw the witnesses face to face, observed their demeanor and heard them testify. They were in a much better position to determine the weight to be given to their testimony than we are from reviewing the record. Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523. These assignments of error challenging the sufficiency of the evidence are overruled.
Charles B. Dobbs, Assistant City Engineer, signed three warrants charging the defendant with criminal offenses. The indictment lists Lt. J. P. Tally as the Prosecutor. At the trial of the case one official of the City of Memphis testified that Mr. Dobbs was ill and unable to be present. The defendant cites as error the fact that he was denied the right to cross examine Mr. Dobbs. He says, in his fifth assignment of error, that this violates his rights under the Tennessee and United States Constitutions.
Certainly an accused has the right to meet the witnesses face to face, guaranteed by both the United States Constitution in the Sixth Amendment and by the Tennessee Constitution in Article 1, Section 9. He was faced by the prosecutor, Lt. Tally, and by the other witnesses of the State. The absence of Mr. Dobbs, which was explained, without showing some prejudice, was not a violation of the defendant's constitutional rights, and it is not error.
In this same assignment of error the defendant charges that after his arrest he was not shown an arrest warrant, he was questioned on the way to the police station, he was threatened with physical violence, he was refused medical treatment for his diabetes, he was refused food, and that he was not advised of his constitutional rights. The defendant, in his brief and argument, does not contend that any of these alleged irregularities or wrongs resulted in any prejudice to him, and we do not find that he was prejudiced thereby. There is no merit to the complaints.
City Treasurer John E. Lee testified during the trial that one employee had formerly taken rare coins out of the money collected, replacing the amount of money taken. He said that after defendant's arrest this practice stopped. Defendant cites this as his sixth assignment of error without showing the error complained of. We assume that he points this out to show that the money alleged to have been taken by the defendant could have been rare coins and taken by the other employee. In any event, this is part of the evidence which we have discussed under the first four assignments of error, and the defendant has failed to show that the evidence preponderates against his guilt.
John P. Tally, Lieutenant of Police, testified that he advised the defendant of his legal and constitutional rights and questioned him about the taking of money from the coin boxes and using it for his own purposes. He stated that the...
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