Galbreath v. State
| Decision Date | 11 December 1948 |
| Parties | GALBREATH et al. v. STATE. |
| Court | Tennessee Supreme Court |
Olen Henderson, of Oak Ridge, and T. R. Chadwick, of Clinton, for plaintiffs in error.
Nat Tipton, Asst. Atty. Gen., for the State.
Each of these defendants was separately indicted for unlawfully selling whiskey. By agreement the cases were consolidated and tried together. Each defendant was convicted and has appealed.
The first error assigned is that the Court should have sustained their respective motions to quash the indictments because they do not allege the name of the person who bought the whiskey alleged to have been sold by each defendant. These indictments allege the dates of sale.
The same insistence was made in State v. Staley, 71 Tenn. 565, and there held untenable, the Court saying that "it is the selling at all—that is the essence of the offense, and not the person to whom sold". The question was again made in Page v. State, 79 Tenn. 202, 203, and again this Court held that "the indictment need not, therefore, specify the person to whom the sale was made".
It is next insisted that the indictments were unfairly prejudicial to the defendants in that they contained four counts, although the State had no reason to believe the defendants guilty of the three counts charging (1) sale without a dealer's license, and (2) unlawful storage without such license, and (3) unlawful storage for sale beyond the corporate limits of towns of more than one thousand population in Anderson County.
There is no citation of any decision upholding the insistence just stated, nor is there anything in this record to indicate that the State had no reason to believe the defendants guilty of the offenses charged in those counts. The insertion of several counts charging kindred offenses which the proof may develop to be a violation of one statute or another is a common and approved practice, and tends to a much more rapid dispatch of the business of the Court. We do not think such practice is either unfair or prejudicial to defendants.
The fourth count charges the unlawful sale of whiskey for a valuable consideration. The jury returned a general verdict of guilty. It is insisted that the evidence preponderates against that verdict.
Each of these four defendants was a taxi cab driver at Oak Ridge. Apparently the police there suspected these young men of being engaged in the unlawful sale of whiskey. Therefore, three detectives were engaged and furnished funds to pay for whiskey which these taxi drivers might at their suggestion sell them.
These detectives rented two or three rooms at a hotel in Oak Ridge and then contacted at different times each of these defendants for the purpose of purchasing whiskey. The proof is that each defendant then delivered whiskey to these detectives and was paid for it.
In as much as plaintiffs in error Chambers and Sharp did not testify or offer any proof in their behalf, one insistence made for the other two defendants who did testify is not applicable to Chambers and Sharp. Therefore, the evidence upon which Chambers and Sharp were convicted is considered first.
Detectives Griswold and Zumstein testified that Zumstein phoned Chambers on the night of April 16, 1948 from the hotel. Chambers then came to his room and when asked whether he "had any whiskey" he said "yes", but that "he was just about out", and intended "to go get some more". Chambers then left and returned in about fifteen minutes with two pints of Schenley's Whiskey for which he charged and was paid $9.00. It is shown by the testimony of a retail liquor dealer that the retail price of that brand of whiskey was at that time $2.70 a pint.
These same two detectives testified that on...
To continue reading
Request your trial
-
State v. Denton
...the joinder of such offenses. See State v. Beard, 818 S.W.2d 376, 378 (Tenn.Crim.App.1991)(citing to pre-Rule cases Galbreath v. State, 187 Tenn. 669, 216 S.W.2d 689 (1948), and Halquist v. State, 489 S.W.2d 88 (Tenn.Crim.App.1972)). Under the particular facts of this case and to avoid the ......
-
Halquist v. State
...be but different species of the same offense, the several counts may and should be joined in the same indictment. Galbreath et al. v. State, 187 Tenn. 669, 216 S.W.2d 689; Tenpenny v. State, 151 Tenn. 669, 679, 270 S.W. 989; Davis v. State, 85 Tenn. 522, 526, 3 S.W. 348; Foute v. State, 83 ......
-
Meade v. State
...State, 45 Tenn. 26, 28; State v. Lea, 41 Tenn. 175; Cash v. State, 29 Tenn. 111; Wright v. State, 23 Tenn. 194. In Galbreath v. State, 187 Tenn. 669, 216 S.W.2d 689, Supra, the Court said: 'The insertion of several counts charging kindred offenses which the proof may develop to be a violati......
-
State v. Banes
...greater and lesser offenses is not necessary, case law allows joinder in separate counts of the same indictment. 7 Galbreath v. State, 187 Tenn. 669, 216 S.W.2d 689 (1948). In the event the state has charged greater and lesser offenses 8 in the same indictment, the court should clearly inst......