Conner v. State

• Decision Date: 16 July 1975
• Citation: 531 S.W.2d 119
• Parties: Ronnie CONNER, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 119

531 S.W.2d 119

Ronnie CONNER, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

July 16, 1975 Certiorari Denied by Supreme Court Nov. 3, 1975.

M. H. Gamble, Jr., Maryville, for plaintiff in error.

R. A. Ashley, Jr., Atty. Gen., Weldon B. White, Jr., Asst. Atty. Gen., Nashville, H. Kenneth Deatherage, Dist. Atty. Gen., Kingston, John C. Crawford, III, Asst. Dist. Atty., Maryville, for defendant in error.

OPINION

DUNCAN, Judge.

The defendant was charged in two separate indictments, each containing three counts charging burglary, larceny, and receiving and concealing stolen property. Over the defendant's objections the cases were consolidated for trial, and the defendant was found guilty under the third count of each indictment of the offense of receiving and concealing stolen property. He received a penitentiary sentence on each indictment of not less than three (3) years nor more than six (6) years, and in the court's judgment, the sentences were ordered to be served consecutively.

The defendant brings this appeal contesting his convictions and sentences, and for purposes of clarity, his assignments of error are hereby designated and summarized as follows:

1. The evidence preponderates against the verdicts.

2. The court refused to charge the law on accomplices.

3. The attorney general was erroneously permitted to argue to the jury that the recent possession of stolen property created a presumption of guilt.

4. The court erroneously charged the same thing as complained of in assignment number 3.

5. The court erred in allowing a witness for the state to testify as to a pre-trial statement the witness had made to a third party.

6. The court erred in consolidating the two cases for trial.

7. That an accurate and complete bill of exceptions was not provided to the defendant.

The above assignments are made as to both cases. The defendant additionally assigns as error:

As to Case No. 80:

8. That the Sony portable radio involved in this indictment was not owned by Joe D. McMurray, as alleged in the indictment.

9. That the court erred in charging the jury on the offense of receiving and concealing stolen property over the value of $100.00, contending that the proof showed the property to be valued at $100.00 or less.

10. That the verdict of the jury for receiving and concealing stolen property of a value exceeding $100.00 is contrary to the law and the evidence.

As to Case No. 81:

11. There was no evidence shown that the personal property alleged in the indictment was stolen.

12. The personal property alleged to be stolen was not identified, and it and the testimony concerning it should have been withdrawn from the jury.

In order to explain and answer the foregoing assignments, we state at the outset, that for reasons hereinafter appearing, the defendant's convictions are reversed. Further, that if there is an ultimate conviction of the defendant, we are of the opinion that there can only be one conviction for receiving and concealing stolen property growing out of the two (2) prosecutions involved herein.

Since the burglaries and resulting larcenies occurred at different times, there could have been two convictions for either of these offenses; however, the rule is different as to receiving and concealing stolen property.

The only conclusion that can be drawn from the proof and from the verdicts of the jury in these cases is that, if received at all, the defendant received the subject items of stolen property from the thief, at one and the same time. The state offers no proof, direct or circumstantial, to show that he received the items at different times.

This exact situation was present in the recent case of Arnett Harsten and Janet Harsten v. State, Tenn.Cr.App. (See opinion dated May 6, 1975, Jackson.) In an opinion by the Honorable John A. Mitchell, the Court held that where goods stolen from multiple department stores were found in possession of the defendants, such would give rise to only one conviction for concealing stolen property. The Court cited Williams v. State, 216 Tenn. 89, 390 S.W.2d 234.

In the Williams case, the court there held, '. . . where the goods of several owners are received or concealed as a part of a single transaction, there is only one offense of receiving or concealing stolen property.'

In II Wharton's Criminal Law (Anderson) § 569, pp. 288, 289, the rule is stated thusly:

'Separate offenses are committed in receiving from the same person at different times stolen goods, knowing them to have been stolen. No distinction is made, however, when the property is received at one time, as to whether it is the property of one or several persons.'

We shall discuss the defendant's first and second assignments of error together.

In his first assignment of error, the defendant contends that the evidence preponderates against the verdicts of the jury and in favor of his innocence. In his second assignment, he complains that the court refused to charge the jury on the law on accomplices. His special request for such a charge was refused by the court.

On May 15, 1974, a police monitor radio and a portable radio were stolen in a burglary at the home of Joe McMurray in Blount County. The radios were later recovered, and Mr. McMurray placed a value on the police radio at one hundred ($100.00) dollars, and valued the portable radio at sixty ($60.00) dollars.

On the same date, the home of C. L. Allen was broken into and there was stolen a black and white Truetone table model television set, a Hoover vacuum cleaner, and two (2) radios. The television set and vacuum cleaner were recovered. Mr. Allen placed a value on the television set at one hundred ($100.00) dollars and placed a value of one hundred thirty-five ($135.00) dollars on the vacuum cleaner.

On the same date, the above stolen items, with the exception of Mr. Allen's two (2) radios, were allegedly left by the defendant at the home of Mr. and Mrs. Robert Dyer. Mr. Dyer testified that the defendant and a boy came to the house, had the items in the trunk of the defendant's car, and that the defendant wanted to leave them there because he and his mother were having some trouble. Mr. Dyer said he knew the defendant and agreed that he could leave the items in his house. Mrs. Dyer supported her husband, in part, on his testimony. Later, the items were recovered in the Dyers' home.

After the Dyers gave their statement to the police, the defendant was arrested and subsequently indicted in two cases as outlined heretofore.

It is noted that the sole evidence linking this defendant to these alleged items of stolen property was furnished by Mr. and Mrs. Robert Dyer.

The defendant insists that the court erred in not allowing the jury to decide the question of whether or not the Dyers were accomplices, and that the court should have charged the law on accomplices. In this case, if the jury had found that the Dyers were accomplices, then it would necessarily follow that a question would be involved as to whether there was sufficient corroborative proof present.

An accomplice is one who knowingly, voluntarily and with common intent unites with the principal offender in the commission of the crime. Hicks v. State, 126 Tenn. 359, 149 S.W. 1055; Monts v. State, 214 Tenn. 171, 191, 379 S.W.2d 34; Moore v. State, 1 Tenn.Cr.App. 190, 432 S.W.2d 684; McAfee v. State, 3 Tenn.Cr.App. 424, 426, 463 S.W.2d 141; Pennington v. State, Tenn.Cr.App., 478 S.W.2d 892.

In Ripley v. State, 189 Tenn. 681, 687, 227 S.W.2d 26, 29, the court said this:

'. . . By the great weight of authority, 'the question of who are accomplices is one of law for the court when the facts as to the witness' participation are clear and undisputed; when such facts are disputed or susceptible of different inferences, the question is one of fact for the jury.'

Whether one is an accomplice is a question for the jury under proper instructions, unless he so confesses. Hicks v. State, supra; Ripley v. State, supra.

When the facts are clear and undisputed there is no doubt but that the question concerning whether a witness is or is not an accomplice is a question of law for the court. But when the facts as to the witness' complicity are disputed and susceptible of different inferences, it is a question of fact for the jury. Abbott v. State, Tenn.Cr.App., 508 S.W.2d 801; Ripley v. State, supra.

Apparently, in the instant case, the court decided as a matter of law that the Dyers were not accomplices and thus declined to charge the jury on the law on accomplices. We do not think the issue is that clear. Neither did the attorney general nor defendant's counsel, as both argued the accomplice question to the jury in anticipation that the court would charge on it.

The test to be applied as to whether or not one is an accomplice is whether the alleged accomplice can be indicted for the offense. Monts v. State, supra; Casone v. State, 193 Tenn. 303, 246 S.W.2d 22; Gann v. State, 2 Tenn.Cr.App. 230, 452 S.W.2d 685.

The Dyers' testimony is suspect in many regards. First, the stolen property was found in their premises. The 'inference' of possession of stolen property as showing a consciousness of guilt, unless such possession is adequately explained, which was the basis upon which the defendant was convicted, is just as applicable to the Dyers, as it would be to the defendant in this case. By reason of this legal principle the officers could have as well secured an indictment against the Dyers for receiving and concealing stolen property as they did against the defendant. The suspicious circumstances under which the property was allegedly left at their house is significant. From their own testimony, the property was concealed in the trunk of the defendant's automobile. One of the items, being a 'police monitor' carries with it a suspicious character just by the very nature of the item. The items were allegedly left by the...