Fox v. State
| Decision Date | 15 July 1964 |
| Parties | Phillip Donald FOX and Billy Ferrell Thomerson v. STATE of Tennessee. 18 McCanless 694, 214 Tenn. 694, 383 S.W.2d 25 |
| Court | Tennessee Supreme Court |
William C. Wilson, Nashville, for plaintiffs in error.
George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Nashville, for the State.
The defendants, Phillip Donald Fox and Billy Ferrell Thomerson, appeal from a conviction of burglary in the third degree having received sentences of three years in the penitentiary.
This conviction is for burglarizing a coin-operated public telephone booth by picking the locks on the money receptacles. The booths are owned and used by the Southern Bell Telephone Company. Prior to 29 January 1963 David Hinman, an agent of the telephone company, received information of possible thefts of money from these booths in the Nashville area and acting on this information William R. Cathy, another agent of the telephone company, 'seeded' certain booths with marked coins. Information was furnished local officers of the possibility of these thefts and that defendant Fox was suspected.
On 29 January 1963, acting on this information, a Davidson County Officer stopped defendants at a restaurant on Murfreesboro Road in Davidson County. Two Nashville detectives, Owen and Chamberlain, were sent to bring defendants to the police station for questioning. These two detectives found defendants handcuffed sitting in a patrol car and brought them, along with their car owned by defendant Fox, to the police station in Nashville.
Defendants were questioned at the police station by officers and the two agents of the telephone company, Hinman and Cathy. One of the officers obtained a search warrant for defendant Fox's car, whereupon two police officers and the two agents of the telephone company accompanied defendant Fox outside to where the officers had left his car parked. Upon reaching the car defendant Fox was informed of this search warrant and further informed these officers would like to search the car. Defendant Fox testified he did not give permission to search. The two officers and two agents all testified defendant Fox voluntarily gave his permission to search. Upon search the car was found to contain $420.70 in nickels, dimes and quarters, lock picking equipment, pair of gloves, some coin wrappers and a lock from a money receptacle out of a telephone booth.
The coins found in defendant Fox's car were examined and it was determined, by the previous marking, one of the coins came from a telephone booth at Millersville in Sumner County. The indictment in the case at bar is based upon this theft.
Defendant Fox made an oral statement the coins found belonged to him, but denied any knowledge of the other things found. Defendant Thomerson denied any knowledge of the things found. At this time formal charges were made against defendants.
The next day defendant Thomerson made a written confession admitting the lock picking equipment was his, and he had robbed several of these telephone booths. He stated defendant Fox acted as his lookout.
The defendants assign as error the trial court's failure to quash the indictment in this case. It is contended that as a matter of law the facts alleged did not constitute burglary in the third degree. However, the argument presented in their brief on appeal is based upon the premise the facts in the record do not show a breaking and entering. Thus it is said that there could have been no burglary, only perhaps larceny.
The defendants urge that there was no breaking in this case, because the telephone booth in question, as are all similar phone booths, is open to the public. Thus it is said that entering this booth was lawful and cannot amount to a breaking. Their specific point is that the breaking is determined from how they accomplished the entrance into the booth proper, and not by the subsequent opening of the coin receptacle. This is not the law in this State.
Sec. 39-902, T.C.A. in part, provides:
'Any person who, after having entered upon the premises mentioned in Sec. 39-901, with intent to commit a felony, shall break any such premises, or any safe or receptacle therein, shall receive the same punishment as if he had broken into the premises in the first instance.'
The specific language of this statute applies only to Section 39-901, T.C.A. which is the breaking and entering, by night, of a dwelling house. This Court in Page v. State, 170 Tenn. 586, 98 S.W.2d 98 (1936), said that Section 39-902, or at least the same principle, applies also to Section 39- 904, which is the basis for the prosecution in this case. In the Page case the Court said:
'Upon the same reasoning, one, although lawfully in a business house, commits the offense described in section 10913 of the Code (now 39-904) when he breaks and enters into a room of that business house, which he has no right to enter, for the purpose of committing a felony.' 170 Tenn. at 589, 98 S.W.2d at 99. (Parentheses added.)
Further the Court said:
'At common law one who entered premises without a breaking did not commit burglary by breaking into a chest or drawer, and section 10911 of the Code (now 39-902) was doubtlessly passed to meet that condition of the law.' 170 Tenn. at 589, 98 S.W.2d at 99. (Parentheses added)
The holding in the Page case applies to the facts in this case. Defendants could lawfully enter the telephone booth, which is a business house within the meaning of Section 39-904, but by breaking into the money receptacle after lawful entry they would be guilty of burglary in the third degree. The Trial Judge was not in error in failure to quash the indictment.
Defendants question the validity of the arrest and search of defendant Fox's automobile. The State does not try to sustain the validity of the search by the warrant, but rather as an incident to a lawful arrest or by consent of defendant Fox.
The defendants were arrested without a warrant. The taking of defendants into custody by the officers at the restaurant on Murfreesboro Road was the time and place of the arrest. Robertson v. State, 184 Tenn. 227, 198 S.W.2d 633. Section 40-803, T.C.A. sets out under what conditions an officer may arrest without a warrant. The gist of the provisions of this statute has been set out in Jones v. State, 161 Tenn. 370, 33 S.W.2d 59, as follows:
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