Bush v. State

• Decision Date: 16 August 1976
• Citation: 541 S.W.2d 391
• Parties: Marvin BUSH and Jerry Bolton, Petitioners, v. STATE of Tennessee, Respondent.
• Court: Tennessee Supreme Court

Page 391

541 S.W.2d 391

Marvin BUSH and Jerry Bolton, Petitioners, v. STATE of Tennessee, Respondent.

Supreme Court of Tennessee.

Aug. 16, 1976.

Michael R. Jones, J. Travis Price, Springfield, for petitioners.

R. A. Ashley, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Nashville, O'Brien Price, Dist. Atty. Gen., Springfield, for respondent.

OPINION

FONES, Justice.

We granted the writ of certiorari in this case and a case styled Turner v. State of Tennessee, Tenn., 541 S.W.2d 398, to clarify the presumption or inference that may be drawn from proof of possession of recently stolen property. Our opinions in the two (2) cases are being released simultaneously.

Marvin Bush, Jerry Bolton and Shadrack Dean were indicted, tried and convicted of second degree burglary of the home of Charles Moffett. Dean did not appeal. Bush and Bolton appealed from sentences of not less than three (3) nor more than fifteen (15) years each. All of the assignments of error on behalf of Bush and Bolton in the intermediate appellate court and here relate to the alleged insufficiency of the evidence to convict.

The Court of Criminal Appeals affirmed both convictions. A dissenting member of the panel was of the opinion that the evidence clearly established that, '. . . Bolton was in possession of the stolen guns before Bush became aware of their existence.' He concluded from that finding, that the majority had permitted the inference arising from possession of recently stolen goods to set aside the presumption of innocence. We granted the writ of certiorari in both cases.

I.

We deem it pertinent to state the substance of the testimony of the material witnesses in the chronological order that the evidence was adduced at the trial.

Charles Moffett testified that on January 23, 1974, he locked and left his home about 11:30 a.m.; and when he returned approximately one hour and fifteen minutes later, he found the back door had been forced and shattered and three (3) rifles, a shotgun and a wrist watch were missing. His home was situated at the dead end of a county road about two hundred (200) yards long that runs off Sandy Springs Road in Robertson County. Only two (2) other houses are on the dead-end road, the Langford house and the Edwards house. Moffett observed that the road had been recently graded, and after discovery of the robbery he examined the road bed and found that no motor vehicle had traversed the road to his house, other than his own. He worked on custom rifles and his home had been robbed before. He identified the four (4) guns and gave his opinion of their value.

Joe Robertson, an investigator with the Sheriff's Office, testified that shortly after question Billy Walker, owner of the Burley Cafe, as to his knowledge of any stolen guns, Walker arranged to meet him and turned over to him a trash or garbage bag containing four (4) guns. The four guns were shown to be those identified by Moffett as having been stolen from his home on January 23.

An FBI fingerprint expert testified that he found Marvin Bush's fingerprints on one of the rifles and the shotgun. Although he was able to lift other fingerprints from the guns he was not, '. . . able to identify any other parties by any finger prints.'

Ruthie Trogdon testified that on January 23, 1974, she was living with her sister and brother-in-law, the McKinneys, who were renting the Edwards house on the same dead-end road where the Moffett house was located. She was divorced and had been 'going with' Marvin Bush for about a year; that he had stayed overnight at the Edwards house the night before and the night after the robbery. On cross-examination by counsel for Bolton, she 'guessed' that she had spent the night with him more often than not since their relationship began. She admitted that she was 'still going with' Bush at the time of the trial. She testified that Bolton appeared at the Edwards house about 1:00 p.m., she didn't know how he got there, she didn't see a car; that he asked Bush to carry him to town. Since this testimony is said to exonerate Bush from any participation in the burglary, we quote from the record:

'Q. And what did Mr. Bolton have to say?

A. He said he had gotten some guns or something like that. I don't know now just exactly what he said, and I don't want to say anything to hurt the boy because I can't remember exactly what he did say, his exact words, but Marvin did take him to town.

Q. So Mr. Bolton came in and announced that he had gotten some guns?

A. No, he didn't announce it. He was talking to Marvin.

Q. He was talking to Marvin?

A. He was talking low enough that I just didn't catch what he was saying, because I didn't figure it was any of my business.

Q. You didn't hear all the conversation?

A. No, I didn't.

Q. But he did say he got some guns?

A. Yes, sir.

Q. You did hear that?

A. Yes.

Q. But there was other conversation there?

A. Well, not that much. Marvin left and took him to town.

Q. Mr. Bolton was speaking directly to Mr. Bush and you overheard part of that conversation?

A. Yes, sir. It's hard to hear when you have children and the television going.

Q. Do you know how Mr. Bolton got to your house?

A. No, sir, I sure don't.

Q. Did you notice whether or not he was traveling in an automobile?

A. No, sir, I don't know how he got there. The way the road is made if you come to the house you have almost got to go down to the two little houses below or either come right around the driveway. I didn't see any cars.

Q. You did not see any cars?

A. No.

Q. Did you see any guns?

A. No.

Q. Did you hear Mr. Bolton make any reference to where these guns were?

A. No, sir, I sure didn't. Marvin brought him to town, but he didn't stay gone but just a few minutes.'

She testified that Bush came back alone, that they watched TV until an hour or so before dark and then drove to town, where Bush parked his car in a little driveway between the Burley Cafe and a car lot; that she remained in the car but Bush walked around to the back of Burley's Cafe where Shadrack Dean's car was stopped with its trunk open, at the rear door of the Cafe. She identified Dean, Billy Walker and Bolton as having been present with Bush at the open trunk of Dean's car, but disclaimed any knowledge of what they were doing or of seeing any guns or any money change hands. She said that Bush returned to the car after a very few minutes; they rode around awhile, ate a sandwich and returned to the Edwards house. She said that her sister and brother-in-law had moved away and she did not know where they were.

Billy Walker, a retired service man and the owner of Burley Cafe, testified that after receiving a telephone call from Dean, Bush and Dean brought four (4) guns to the back door of the Burley Cafe in the trunk of a vehicle. Walker bought them for seventy-five ($75) dollars cash and gave the money to Dean. A third man was with them who was about the size of Bolton but he could not say that Bolton was or was not that person. He did not see them divide the money, but they came inside the Cafe, had one or two beers and left. He put the guns in a trash bag and later turned them over to the police.

Following the State's proof, Bolton testified in his own behalf. His entire relevant testimony consisted of denying that he was present at the Edwards house or the Burley Cafe on January 23, 1974. He was not cross-examined by the State or by counsel for either of the other two defendants. He did not deny that he stole the guns, nor did he deny receiving any money for the sale of the guns.

Shadrack Dean testified that Bush and Bolton came to his house and asked if he knew where they could sell some guns; that Bush's mother's house was located three or four houses down the street and that he went there and inspected the four (4) guns in Bush's car. He then called Billy Walker, put the guns in the trunk of his car and drove to the Burley Cafe, accompanied by Bush and Bolton, and sold the guns to Billy Walker for seventy-five ($75) dollars. He kept fifteen ($15) dollars and gave Bush and Bolton thirty ($30) dollars each. He testified that all of these events occurred around 2:00 p.m. or 2:30 p.m. He said that Bush's car remained at his mother's house while they went to the Cafe to sell the guns. He was asked if he had heard Ruthie Trogdon testify about coming to town with Bush in his car and sitting in the driveway at the time of the transaction with Billy Walker. His response was, 'She told a lie.' He admitted that he, Bush and Bolton were good friends and had run around together but denied being with them before they came to his house about 2:00 or 2:30 p.m. on January 23. He said that his involvement with them on the day of the robbery covered a period of approximately thirty (30) minutes; that Bolton was 'pretty well strung out' and did not converse with anybody.

Dean's mother testified that he was home all day on January 23, keeping the children while his wife worked, except for thirty (30) to forty-five (45) minutes sometime in the afternoon, before leaving at 4:00 p.m. to pick up his wife.

Bush did not testify.

II.

In Tennessee we follow the generally approved rule that proof of possession of recently stolen goods gives rise to the inference that the possessor has stolen them. Peek v. State, 213 Tenn. 323, 375 S.W.2d 863 (1964); Hughes v. State, 27 Tenn. 75 (1847); Cook v. State, 84 Tenn. 461, 1 S.W. 254 (1886); and Shaw v. State, 1 Tenn.Cas. 77 (1858).

The dissenting member of the Court of Criminal Appeals repeats here the substance of his dissent in Smith v. State, 2 Tenn.Cr.App. 117, 451 S.W.2d 716 (1969).

In the instant case, he accuses the majority of relying upon the proposition, 'that possession alone, although explained in a credible fashion may support a finding of guilt.' It appears that the dissenter entertains the view that if possession alone is relied upon for conviction and it is 'rebutted by evidence that is not patently false,' ¹ or 'explained in a...