Cobb v. State

• Decision Date: 01 April 1957
• Citation: Cobb v. State, 201 Tenn. 676, 301 S.W.2d 370, 5 McCanless 676 (Tenn. 1957)
• Parties: Eldon COBB and Almont Hargrove, Jr. v. STATE of Tennessee. 5 McCanless 676, 201 Tenn. 676, 301 S.W.2d 370
• Court: Tennessee Supreme Court

Page 370

301 S.W.2d 370

Eldon COBB and Almont Hargrove, Jr. v.STATE of Tennessee.

5 McCanless 676, 201 Tenn. 676, 301 S.W.2d 370

Supreme Court of Tennessee.

April 1, 1957.

Thomas E. Fox, Asst. Atty. Gen., for the State.

W. R. Fain, Jr., and James C. Cunningham, Clarksville, for defendants.

SWEPSTON, Justice.

Plaintiffs in error, hereinafter referred to as defendants, were convicted for receiving and concealing stolen property and sentenced to not more than three years in the State penitentiary.They have appealed and assigned error.

The first two assignments of error attack the sufficiency of the evidence to support the verdict of the jury.We have examined the record and are of opinion that there is no merit in this attack.The evidence adduced by the State amply shows that these two men were guilty of receiving and concealing a safe belonging to one Glenn H. Durdin which had been stolen from his place of business, a cafe, at night time and that the value of the safe was approximately $150, not including the contents.The defendants did not offer any evidence in their behalf.It would serve no useful purpose to discuss the evidence.The first assignment and that part of the second assignment relating to the evidence are, therefore, overruled.

The second part of the second assignment and assignment No. 3 raise the question of variance between the indictment and the proof, and assignments No. 4andNo. 5 complaining of the refusal of the Court to charge certain special requests depend upon the result of assignments No. 2andNo. 3.

The variance claimed to be material is that while the indictment specified that the property was received from two named individuals, to wit: Bobby Edwards and W. S. Dinkins, there was no proof offered to sustain this part of the indictment.

Counsel relies upon the following statement from Wharton's Criminal Law, 12th ed., Vol. 2, sec. 1247, pp. 1557-1558, as follows:

'The indictment need not set forth the name of any person from whom the goods were received, nor, according to the preponderance of authority, that they were received from some person or persons unknown.When, however, the principal felon is named, a variance is fatal. * * *'

Counsel relies also upon our case of Johnson v. State, 148 Tenn. 196, 253 S.W. 963.

With reference to the quotation from Wharton's, supra, it is only necessary to say that author fails to observe that there is definitely a conflict of authority on the question in that he cites cases supporting only one side of the conflict.That this is so is amply reflected by the statement in 53 C.J., 524, sec. 54, and 76 C.J.S., Receiving Stolen Goods, Sec. 16-b, p. 28, wherein it is said:

'In jurisdictions where it is necessary to allege the name of the thief or the person from whom the stolen property was received, the name alleged must be proved as alleged and a variance between the allegations and proof is fatal.In jurisdictions where it is not necessary to allege the name of the thief or person from whom the property was received, it is also unnecessary to prove it; but in such jurisdiction, if the name is alleged, the decisions are conflicting, it being held by some decisions that, although the name is unnecessarily alleged, it must be proved in order to avoid a variance, whereas other decisions hold that the statement of his name in the indictment or information may be treated as surplusage and that a failure to prove the name as stated is not a fatal variance.'

In support of the first view that the name of the thief must be proved as alleged, Corpus Juris cites the same cases cited by Wharton, supra, among which is Huggins v. People, 135 Ill. 243, 25 N.E. 1002, which case assets that the reason for such holding is that the allegation becomes a matter of description; this point, however, is in conflict also as will appear later herein.

In support of the view on the other hand, that such does not constitute a fatal variance, Corpus Juris cites State v. Pirkey, 22 S.D. 550, 118 N.W. 1042, and other cases.C.J.S., however, cites only the Huggins case in support of the view that it is a fatal variance and that seems to be the modern Illinois view.However, in support of the opposite view C.J.S. cites the Pirkeycase, supra, and a later case from Kentucky, Niece v. Commonwealth, 307 Ky. 760, 212 S.W.2d 291.Interestingly enough this Kentucky case states, 212 S.W.2d at page 293,

'If named in the indictment, any variance is immaterial if the property is specifically described and identified.'

A run-back of the authorities in Kentucky supporting such statement, however, discloses two things.(1) That a statute renders it unnecessary to prove the name of the thief alleged provided the property is sufficiently described otherwise to identify it, and (2) That the name, quantity and owner of said property is a sufficient description.See: Commonwealth v. McGarvey, 158 Ky. 570, 165 S.W. 973;Newton v. Commonwealth, 158 Ky. 4, 164 S.W. 108;Shuttles v. Commonwealth, 190 Ky. 176, 227 S.W. 154.

In 45 Am.Jur. 397, 398, sec. 14, the subject is treated briefly as follows:

'There is no necessity for such an allegation either to establish the elements of the offense or as identifying matter in jurisdictions where the offense is an independent, substantive one, and not merely accessorial.Since it is not material to the offense charged, such allegation, if made, may be properly treated as surplusage; * * *'

Note 12 refers to the Hugginscase, supra, from Illinois, and the Indiana case of Wertheimer v. State, 201 Ind. 572, 169 N.E. 40, 68 A.L.R. 178.In neither one of these cases, however, does anything more than a bare statement appear without any supporting authority.On the other hand, State v. Pirkey, supra, in a well-reasoned opinion supports the rule that such failure to prove is not a material variance and the averment in the indictment may be disregarded as surplusage.It states, 118 N.W. at page 1046:

'The learned author of the note to the case of State v. Sakowski, 191 Mo. 635, 90 S.W. 435, reported in 4 Am.Eng.Ann.Cas., p. 751, states the rule as follows: 'An allegation in an indictment need not be proved if it might have been omitted from the indictment without detriment to it and without affecting the charge against the accused."

The author then cites a number of cases in support of the proposition among which is State v. Brown, 27 Tenn. 89.

State v. Sakowski, supra, is a well-reasoned opinion but in order that it may not be misunderstood it is necessary to note, 90 S.W. on pages 437-438, that the statute under which the defendant was indicted for receiving stolen property was different from the Tennessee statute in that,

'the offense is purely a statutory one, and the General Assembly in defining it have not made it a constituent element of the crime that the receiver should receive the same with intent to deprive the owner thereof.'

It was insisted in that case that the conviction could not stand because the evidence utterly failed to sustain the allegation in the indictment that the defendant received the property well knowing it 'to have been stolen from the St. L. & San Francisco Railroad Company.'The same insistence was made there as here where the indictment stated that...