Busler v. State

• Decision Date: 02 December 1944
• Citation: Busler v. State, 184 S.W.2d 24, 181 Tenn. 675 (Tenn. 1944)
• Parties: BUSLER v. STATE.
• Court: Tennessee Supreme Court

184 S.W.2d 24

181 Tenn. 675

BUSLER v. STATE.

Supreme Court of Tennessee.

December 2, 1944

Error to Circuit Court, Cocke County; Geo. R. Shepherd, Chancellor.

Charles Busler was convicted of larceny and disposing of stolen property, and he brings error.

Affirmed.

Crawford & Hurd, of Newport, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

NEIL Justice.

The appellant, Charles Busler, and his wife, Eva Busler, were indicted by the grand jury of Cocke County, said indictment charging them with stealing flowers and frames from the grave of Mrs. Nellie Elizabeth Suggs, of the value of five and ten dollars, and alleged to be the property, respectively, of Homer Fox, Bernard Wilds, and other named persons.The jury convicted Charles Busler of the crime of larceny and disposing of stolen property.His wife, Eva Busler, was found guilty of disposing of stolen property.Their maximum punishment was fixed at one year in the penitentiary.A motion for a new trial was seasonably made and raised the following questions:

'(1) That there was no evidence to support the verdict of the jury.

'(2) That the evidence clearly preponderated in favor of the innocence of the defendants and against the verdict of the jury.

'(3) That the ownership of the property alleged to have been taken was improperly laid in the indictment.

'(4) That the property alleged to have been taken was not sufficiently identified as property belonging to any of the persons in whom the ownership was laid by the indictment.

'(5) That the property charged to have been stolen was not shown to have had any value of any of the persons in whom ownership was laid by the indictment at the time the same was charged to have been taken.

'(6) That the trial judge committed prejudicial error against the defendants in ruling on the competency of the testimony of A L. Horton, a witness for the defendants, to the effect that it was a customary practice for florists in this area to reclaim and reuse frames, racks, etc., furnished with floral offerings at funerals after the flowers had wilted following the burial.

'(7) That error prejudicial to the defendants was committed by the jury judge in interrogating the accused, Charles Busler while on the witness stand, regarding his visit to the cemetery--such interrogation taking place after special counsel for the State had finished his cross-examination and excused this defendant--the form of the question and the manner and time of its asking being such as to convey to the jury the idea that the trial judge believed the accused guilty as charged in the indictment.

'(8) That the Attorney General was guilty of conduct unbecoming an officer of the Court upon the trial of the case by persisting in an effort to introduce testimony which the trial judge had ruled incompetent, and which had a tendency to inflame and prejudice the minds of the jury against the accused.

'(9) That upon the trial of the casethe Attorney General misconducted himself as an officer of the Court, to the prejudice of the accused, by persisting in asking the accused questions regarding other funerals and regarding flowers alleged to have been taken from other graves, after the trial judge had ruled all such evidence out--such questions having a tendency to inflame the minds of the jury and prejudice them against the accused.

'(10) That the punishment fixed by the jury was so harsh and excessive under the law and the facts of the case as to indicate passion, prejudice and caprice on the part of the jury.'

The trial judge overruled the motion and judgment was pronounced in accordance with the verdict of the jury, except that the imprisonment was directed to be served in the county workhouse instead of the state penitentiary, under Code, § 11793.Thereupon both defendants petitioned the trial judge that he parole them from serving the sentence thus imposed, which petition was granted as to Mrs. Eva Busler and partially granted as to the defendantCharles Busler in that he was paroled after having served ninety days of the workhouse sentence.

The defendantCharles Busler later withdrew his petition for a parole, excepted to the action of the trial judge in pronouncing sentence and in overruling his motion for a new trial, and an appeal was duly perfected to this Court.The assignments of error embrace every ground of the motion for a new trial and need not be repeated.

Before considering the legal questions raised in these assignments, it is necessary that we carefully review the facts and circumstances upon which the State relies to sustain a conviction.The defendantCharles Busler and his wife Eva were, in February, 1944, and several years prior thereto, engaged in the business of furnishing flowers and floral designs to be used as memorials to deceased persons.On February 7, 1944, Mrs. Nellie Elizabeth Suggs died and a number of relatives and friends of the deceased purchased from defendants floral offerings for which they paid various sums of money, ranging from $5 to $15 each.Some of the flowers thus sold were securely fastened to metal or wire stands, which were later carried to the cemetery and placed upon the grave of the deceased.The funeral was held about 2 o'clock in the afternoon of February 7th.On the night of the same day, between the hours of 10:30 and 11:30, the defendantCharles Busler secured the services of a taxicab driver and drove to the cemetery and there removed six or seven of these floral offerings, carrying them to his place of business in Newport, Tennessee.Defendant makes no denial of having removed these designs from the grave of Mrs. Suggs.He insisted in the court below that he took only the metal stands or frames to which the flowers were attached and that he did not remove or re-use the flowers for any purpose; that because of the shortage of these metal frames and his inability to secure a sufficient number, due to war emergencies, he thought it not improper to repossess these metal stands.It was further contended that the floral offerings had served their purpose, having become wilted and of no value; that when the designs were made up and delivered to the purchasers, he reserved the right to repossess these wire frames.This contention was denied by the prosecution.It was contended by the State that some of these flowers were used by the defendant in making designs for a funeral that was held the following day.We find some evidence in the record that Busler stated to one or more persons that he had used some of these flowers in a funeral that was conducted on the afternoon of February 8th.Upon this last issue the evidence is more or less conflicting.The defendant introduced as a witness a prominent florist of Morristown, who testified that it was customary for florists in his community to repossess metal frames after the designs had served their purpose.

In the first three assignments of error it is insisted that the evidence preponderates in favor of the innocence of the defendants and against the verdict of the jury.The third assignment is that a new trial should have been granted because the ownership of the property alleged to have been taken was improperly laid in the indictment.It should be here stated that there were eight counts in the indictment, each count averring that the owner of the stolen property was a particular person, naming him, who had purchased a floral offering.The fourth assignment raises the question of insufficient identification of the particular property taken as 'belonging to any of the persons in whom the ownership was laid by the indictment.'The fifth assignment is to the effect that 'the property charged to have been stolen was not shown to have any value to any of the persons in whom ownership was laid by the indictment at the time the same was charged to have been taken.'Other assignments of error will be discussed later on in this opinion.The third, fourth and fifth assignments of error above referred to may be considered together.

It is earnestly contended by counsel for the defendant that ownership of the property is improperly laid in the several persons who made purchases of floral designs and sent them to the cemetery or funeral home as a memorial or symbol...