Cole v. State

• Decision Date: 11 December 1948
• Parties: COLE et al. v. STATE.
• Court: Tennessee Supreme Court

215 S.W.2d 824

187 Tenn. 459

COLE et al. v. STATE.

Supreme Court of Tennessee.

December 11, 1948

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

Rex Cole, Bruce Clift and Sanford Bugg were convicted of robbery and they bring error.

Affirmed.

Crawford & Hurd and O. O'Neil Lee, all of Newport, for plaintiffs in error.

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

GAILOR Justice.

In the Circuit Court of Cocke County, the defendants, Rex Cole Bruce Clift and Sanford Bugg were convicted of robbery and sentenced to five years in the penitentiary for the offense. They have appealed and assigned errors.

On the night of October 20, 1947, the Prosecutor Johnson, who is a cattle dealer and who was at the time carrying about $300 in paper money on his person, was driven to a beer tavern and dance hall by a taxi driver named Webb, who remained drinking with his fare until a short time before the robbery occurred. The beer tavern was operated by defendant Clift.

After Johnson had bought and paid for a number of drinks, and in so doing showed those present his wallet and the fact that it was well filled with money, Clift, who had previously been seen to whisper and confer with the other two defendants Cole and Bugg, became suddenly angered at Johnson and ordered him out of the house. Johnson went out and sat in the front seat of the taxicab where presently Cole and Bugg joined him. These defendants then drove Johnson some distance down the road, and, at the point of a pistol, robbed him of his wallet and put him out of the cab. After throwing the empty wallet away at the scene of the robbery, they brought the money back to Clift for a division. The empty wallet was later found and introduced in evidence. Johnson testified that after the prosecution was started, Clift came to him and tried to settle the case and stop criminal proceedings.

A few minutes after the robbery, and after Cole and Bugg had returned to Clift's place, Webb was called into a small private room there, and found Clift, Bugg and Cole gathered together. Bugg threw down on the table a large roll of bills which Clift picked up and from which Clift took $40 when he gave to Webb 'to keep his mouth shut.'

For their defense, Clift and Bugg, while admitting that they saw Johnson at Clift's place on the night of October 20th, denied that they participated in any robbery, and Bugg testified that Webb committed the robbery himself. Defendant Cole denies that he was at Clift's place on that night and testified to an alibi in which he is supported by his wife. Her testimony was greatly weakened by discrepancies in statements made on direct and cross-examination, and by incredible details which she related about an alleged sickness of her husband. Study of her entire testimony leaves doubt as to whether the alleged sickness and robbery were contemporaneous, or whether the sickness was after or before the robbery. Evidence of the alibi and its corroboration was to be received with caution, Odeneal v. State, 128 Tenn. 60, 157 S.W. 419, and to be weighed and determined by the jury like any other evidence, Warren v. State, 178 Tenn. 157, 160, 156 S.W.2d 416.

It is clear from our summary of the evidence and the testimony of the various witnesses that sharp issues of fact were raised by the witnesses testifying for the State and those testifying for the defendants. The evidence did not preponderate in favor of the innocence of the defendants, and the weight of the testimony and the credibility of the various witnesses was exclusively for the jury and settled by the verdict. Ferguson v. State, 138 Tenn. 106, 196 S.W. 140; Christian v. State, 184 Tenn. 163, 197 S.W.2d 797. After their conviction, the defendants are here under a presumption of guilt and we find no preponderance in favor of their innocence. The assignments of error on the sufficiency of the evidence are overruled.

By the next assignment of error, it is insisted that there is a fatal variance between the allegations of the indictment and the proof, in that the indictment charges that the stolen money was the property of Johnson, while the proof shows that it was the property of his brother-in-law, who was his partner in the cattle business. The established facts are these: The brother-in-law furnished the money; Johnson bought the cattle; and they divided the profits accruing from the re-sale of the cattle. Under these undisputed facts, Johnson was not only the agent and bailee of his brother-in-law, but the agency was in a non-technical sense coupled with a proprietary interest, since Johnson would ultimately share in the profits from the re-sale of the cattle which the brother-in-law's money bought. We find no variance that was material or prejudicial. Renfro v. State, 65 Tenn. 517, 520; Lowry v. State, 113 Tenn. 220, 223, 81 S.W. 373.

The fourth assignment of error complains that the Attorney General cross-examined Bugg as to a purported confession of Cole which had been excluded by the Judge. Objection was made to the cross-examination at the time, and the Trial Judge sustained the objection and explicitly directed the jury not to consider the objectionable evidence. There was, therefore, no prejudice to the defendants and no error.

The fifth assignment complains also of certain parts of the cross-examination of Bugg. It would uselessly prolong this opinion to set the testimony out in full. It is sufficient in disposing of the assignment to say that the...