Duchac v. State
| Decision Date | 17 December 1973 |
| Citation | 505 S.W.2d 237 |
| Parties | David K. DUCHAC and Billie G. Robinson, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error. |
| Court | Tennessee Supreme Court |
Frederick J. Lewis, Jean V. Humphreys, U. T. Legal Clinic, Knoxville, for plaintiffs in error.
David M. Pack, Atty. Gen., of Tenn., William B. Hubbard, Asst. Atty. Gen., Nashville, Earle G. Murphy, Dist. Atty. Gen., pro tem., Cleveland, for defendant in error.
Defendants, Duchac and Robinson, were jointly tried on two separate indictments consolidated for trial. They were subsequently convicted of third degree burglary and of carrying burglarious instruments. Each of the defendants was sentenced to confinement in the state penitentiary for not less than three nor more than five years in the third degree burglary case, and to not less than one nor more than five years in the burglarious instruments case, the sentences to run consecutively. The Court of Criminal Appeals, one judge dissenting, reversed the conviction for carrying burglarious instruments, holding that a conviction of third degree burglary bars a conviction of possession of burglarious instruments. We granted certiorari to review the lower court holding.
The pertinent factual situation is as follows: On May 26, 1971, at about 2:15 A.M., a burglar alarm protecting the Coca-Cola Bottling Company's Cleveland plant sounded in the nearby home of an employee. When the employee and the police arrived at the plant a short time later, the two defendants were seen inside the lighted building armed with pistols. They fled the building by way of the back door where illegal entry had been made by breaking a pane of glass and unlocking the door from the inside. Robinson was caught immediately after leaving the building, and Duchac was found hiding between two outbuildings a short time later. One pistol was found near Duchac, and the other on the ground outside the main building. Nothing was actually carried away because of the timely arrival of the police, however, several items were found piled up on the office floor and all the drawers and cabinets had been ransacked. In addition, an unlocked safe was opened in the office; and on the office floor was found a cutting torch with tanks, a prybar and a flashlight that did not belong to the burglarized firm. These were never seen in the actual possession of either defendant. No evidence of their actual use on this occasion was presented, except that the door to the room where the safe was had been broken open and apparently a back door that was not successfully entered had been tampered with.
In order to resolve this case, we must make two determinations. First, we must determine whether the conviction of both third degree burglary and of carrying burglarious instruments can stand. If we answer that question in the affirmative, we must then determine whether under the facts of this case and the language of T.C.A. § 39--908, the carrying of burglarious instruments is herein demonstrated. This latter question was pretermitted below.
Turning to the first question, the court below stated that the third degree burglary conviction barred the conviction for carrying burglarious instruments because the two convictions arose out of the same transaction and because the same proof made out both offenses. However, the majority rule and clearly the rule in Tennessee is that the 'same transaction' test is not the law, rather the proper test is directed to the identity of the offense and has been called the 'same evidence' test. See, e.g., Harris v. State, 206 Tenn. 276, 332 S.W.2d 675 (1960); Eager v. State, 205 Tenn. 156, 325 S.W.2d 815 (1959). Simply stated the test is that:
'. . . A defendant has been in jeopardy if on the first charge he could have been convicted of the offense charged in the second proceeding.
'One test of identity of offenses is whether the same evidence is required to prove them. If the same evidence is not required, then the fact that both charges relate to, and grow out of, one transaction, does not make a single offense where two are defined by the statutes. 'If there was one act, one intent, and one volition, and the defendant has been tried on a charge based on that act, intent, and volition, no subsequent charge can be based thereon, but there is no identity of offenses if on the trial of one offense proof of some fact is required that is not necessary to be proved in the trial of the other, although some of the same acts may necessarily be proved in the trial of each.' 21 Am.Jur.2d Criminal Law, § 82.
Third degree burglary is defined in T.C.A. § 39--904 as 'breaking and entering into a business house, outhouse, or any other house of another, other than dwellinghouse, with the intent to commit a felony.' In order to convict one of third degree burglary, the State must prove four distinct elements: (1) the breach, (2) the entry, (3) any house of another other than dwelling house, and (4) felonious intent. In the instant case, defendants entered the business house of another by breaking a pane of glass and unlocking the door from the inside. Thus, all the above elements are shown except that if felonious intent.
The intent requirement is general in nature and there is no need to prove that the intruder succeeded in carrying out the intent for which the structure was broken into. Therefore, if one breaks into the dwelling of another with the intent to commit murder or any other felony he is guilty of burglary even if he leaves without finding his intended victim or without having committed any felony in the dwelling. See People v. Schwab, 136 Cal.App.2d 280, 288 P.2d 627 (1955); Ragland v. State, 71 Ark. 65, 70 S.W. 1039 (1902); Walker v. State, 44 Fla. 466, 32 So. 954 (1902). It is apparent from the circumstantial evidence in this case that the defendants possessed the requisite felonious intent at the moment they broke the window pane and gained entry. At that very moment, the offense of third degree burglary was committed. Thus, the Court of Criminal Appeals was correct in upholding defendants' conviction on this charge.
As for carrying burglarious instruments, T.C.A. § 39--908 provides:
'Any person who carries concealed about the person any false or skeleton keys, jimmies, or any article of the kind intended for effecting secret entrance into houses (or motor vehicles), for the purpose of committing theft, or other violations of the law, is guilty of a felony. . . .'
From a reading of the foregoing statute, it is evident that in the instant case none of the evidence required to prove third degree burglary is necessary to make out a case of carrying burglarious instruments. In addition, none of the evidence required to prove carrying burglarious instruments is necessary to prove commission of third degree burglary. Therefore, the mere fact that both offenses grew out of a single criminal episode does not make them a single offense in this particular case. This is not to say that under different facts and circumstances that a third degree burglary conviction could not bar a conviction for carrying...
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...). In the absence of direct evidence, a criminal offense may be established exclusively by circumstantial evidence. Duchac v. State , 505 S.W.2d 237, 241 (Tenn. 1973). "The jury decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence, ......
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