Garton v. State

• Decision Date: 05 February 1960
• Citation: 332 S.W.2d 169,10 McCanless 79,206 Tenn. 79
• Parties: , 206 Tenn. 79 Doyle GARTON v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 169

332 S.W.2d 169

10 McCanless 79, 206 Tenn. 79

Doyle GARTON v. STATE of Tennessee.

Supreme Court of Tennessee.

Feb. 5, 1960.

Robert L. Littleton, Dickson, John H. Henderson, Franklin, for plaintiff in error.

Thomas E. Fox, Asst. Atty. Gen., for the State.

S. A. MARABLE, Special Justice.

The plaintiff in error was indicted jointly with Howard Hamilton, Carl Garton and Bobby Cathey, for grand larceny. A severance was subsequently granted as to the plaintiff in error, hereinafter referred to as the defendant, and he was tried separately on said charge, with the result that he was found guilty and his punishment fixed at three years confinement in the State penitentiary, from which he has appealed and filed five assignments of error.

The first three assignments of error may be briefly summarized as follows: That the evidence preponderates against the verdict and in favor of the innocence of the accused.

The fourth assignment is that the trial judge erred in refusing to permit the counsel for the defendant to cross-examine one of the State's witnesses, Carl Garton, regarding a previous conviction of said witness.

The fifth assignment is that there was no evidence to corroborate the testimony of three witnesses for the State, all of whom were accomplices of the defendant.

The proof shows that two cows of the total value of $210, belonging to F. E. Walker, were stolen from a barn on his farm in Williamson County, Tennessee, on Monday night, November 17, 1958.

The principal witnesses for the State were, Carl Garton, Howard, Hamilton and Bobby Cathey, all of whom admitted participation in said theft. Their testimony, which was substantially the same, with no material variances, was in substance as follows:

That on the afternoon of November 17, 1958, the defendant came to Carl Garton's home, while Howard Hamilton and Bobby Cathey were there, bringing with him a pint of whiskey. That the three younger men, Carl Garton and Bobby Cathey, both aged twenty-one years, and Howard Hamilton, aged twenty-two years, drank the whiskey, and the defendant drank either some of the whiskey or some beer while there. That, after a few drinks had been taken, the defendant told them that he wanted them to help load some cattle, that he had a deal he wanted to make with them, and for them to come to Dickson that afternoon. Later in the afternoon, the three young men went to the DeLuxe Tavern near Dickson, where they met the defendant, who invited them into the tavern and they drank some beer. While there the defendant told them that he had a deal worked up about some cattle and wanted them to help him get them, promising to pay them $200 for what they did. They agreed to help get the cattle, and further agreed to meet the defendant at another tavern known as the Blue Moon that night at 7:00 o'clock. At the appointed time the three younger men met the defendant at the Blue Moon Tavern, where Carl Garton got in the defendant's truck with the latter, and they proceeded toward the place where the cattle were to be gotten on Walker's farm. The other two men, Hamilton and Cathey, followed in Hamilton's car. The defendant stopped his truck at a service station operated by T. H. Bissinger, at the junction of State Highways Nos. 100 and 46, where the defendant purchased $2 worth of gasoline. While the gasoline was being put in the defendant's truck, the car occupied by Hamilton and Cathey drove up, and the driver of the car blinked the car's lights, whereupon Carl Garton got out of the truck and told the other men to follow him and the defendant in defendant's truck. Carl Garton then got back into the truck and the defendant drove the truck off in the direction of Williamson County, with the other two men following in Hamilton's car. The truck and car were parked on the side of a road near a pasture on Walker's farm. All four of the ment then walked across a pasture to Walker's barn, where the two cows were confined, placed ropes on the cows and led them back to the truck, where they were loaded into the truck. Carl Garton and Hamilton got in the truck with the defendant, and the latter drove the truck to his home near Colesburg in Dickson County where the two cows were unloaded on the defendant's premises. Bobby Cathey drove the car back to Colesburg. All four of the men then got together again and went to a farm owned by a Mr. Deal, located in Dickson County, where they stole three more cows, which were also taken to the premises of the defendant and there unloaded. That none of the three men assisting the defendant in the theft of these cattle ever received the $200 promised to them by the defendant, or received any money from the defendant, except Carl Garton who was given $10. That the theft of said cattle occurred during the night of November 17, 1958. That neither Carl Garton, Hamilton or Cathey owned any cattle, or offered to sell, or did sell, any cattle to the defendant. That the theft of said cattle originated with the defendant and they were only assisting him in getting the cattle at his instance and request. That Carl Garton and Hamilton were well acquainted with the defendant, but that Bobby Cathey had never seen or known the defendant until November 17, 1958.

T. H. Bissinger, who operates a service station and garage at the junction of State Highways Nos. 100 and 46, saw the defendant at his service station between 6:30 and 7:30 o'clock, on the night that it appears that the cattle in question were stolen. He testified that the defendant drove up to his place of business in a pickup truck with sides, and bought $2 worth of gasoline. That one other man was in the truck with defendant, and shortly a car came in behind them with two people in it, but witness knew none of the men except the defendant. That one of the men in the car called to the man in defendant's truck, and, as witness believes, called him Carl. That the truck and car both came from the same direction, from towards Dickson, and when defendant's truck left it was headed east in the direction of Nashville and Williamson County (which was in the direction of F. E. Walker's farm, from which the cattle were stolen). That he talked with defendant for five or ten minutes, and defendant asked him if he still owned some white faced cattle that defendant had looked at some time previously.

The defendant, a livestock dealer, residing near State Highway No. 46, about half way between Colesburg and the junction of State Highways Nos. 46 and 100, in Dickson County, testified in his own behalf. He stated that the two cows (subsequently ascertained to have been stolen from the farm of F. E. Walker in Williamson County) were brought to his place in Dickson County, in his truck, by Carl Garton, Howard Hamilton and Bobby Cathey, but contended that he had loaned his truck to Carl Garton on the night of November 17, 1958, to get some cattle that he understood belonged to Bobby Cathey and to bring them to his place in Dickson County to sell to him, and that he bought the cattle from Bobby Cathey and paid the latter $400 in cash for them. He denied that he was at the home of Carl Garton during the daytime on Monday, November 17, 1958 (but in this he is contradicted by the testimony of Mrs. Kathleen Garton, mother of Carl Garton, who testified that she saw him there and that he talked with the other three men, but she did not hear their conversation). He further stated that he saw the three men at the DeLuxe Tavern that afternoon about 3:00 o'clock, when Carl Garton told him that Bobby Cathey had some cattle that he wanted to sell to him, and that the cattle were in the Fairview community. That he told them that he couldn't look at the cattle that afternoon but would try to see them the next day or the day following. That he then went home, and after eating supper went to the Blue Moon Tavern, getting there about 6:30 P.M., and that he saw the three men there, but only spoke to them, and that he left the tavern about 7:30, to go to the home of one Gene Barnhill to get a jacket. That on the way he was stopped by Carl Garton, who flashed a light on his truck and asked him to pull in near a service station as he (Carl Garton) wanted to talk with him. That defendant stopped at the service station, where he bought $2 worth of gasoline for his truck. That while there Carl Garton told him that Cathey was geing to sell the cattle to some one, and asked defendant to lend him his truck to get the cattle and bring them to defendant's home to sell them to him. That defendant agreed to let them have his truck for that purpose and told Carl Garton to come to defendant's home and pick up the truck as he (defendant) was going home. That he went home and retired about 8:30 that night. That some time later in the night the three men came to his home and awakened him, and that he gave Carl Garton the keys to his truck. That the three men left with his truck and returned to his home about 7:00 o'clock the next morning with five cattle in it, and that he then agreed to buy the cattle and paid Cathey for them, the cattle being left in his possession. That he kept one of the cows, which he had butchered and placed the meat in his deep freezer after having it processed at a Dickson food locker. He testified that he took the other cattle to Camden and sold them there for $413. After the cattle had been traced to his home, he admitted to the officers investigating the theft that he had killed and kept one of the cows for food and had sold the others at Camden, but claimed that he had bought the cattle from Bobby Cathey and did not know that they were stolen, and contended that he had only loaned his truck to the men to bring the cattle to his home for the purpose of selling them to him. He denied any participation in, or knowledge of, the theft of the cattle.

Mrs. Doyle Garton, the defendant's wife, testified that her husband left their home about 6:00 o'clock on the evening of ...