Gerchman v. State
| Decision Date | 05 February 1960 |
| Citation | 10 McCanless 109,206 Tenn. 109,332 S.W.2d 182 |
| Parties | , 206 Tenn. 109 David P. GERCHMAN v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
Paul D. Welker and Frank J. Runyon, Clarksville, for plaintiff in error.
William D. Grugett, Asst. Atty. Gen., for the State.
Gerchman was indicted, tried and convicted of housebreaking and larceny and sentenced to serve a term of not more than three years in the State Penitentiary. He has seasonably appealed, filed briefs, and arguments have been heard. We now have the matter for disposition.
Gerchman was indicted for breaking into the house of a Mr. Peacher and stealing four heaters therefrom on the night of May 1, 1958. On May 9, 1958, a deputy sheriff along with two members of the Criminal Identification Division of Fort Campbell went to the home of Gerchman, who at that time was a Sergeant in the United States Army stationed at Fort Campbell, armed with a search warrant. This search warrant called for the officers to search for certain articles, sheets, a mower, etc., which the authorities at Fort Campbell thought were in Gerchman's home. At the time this search warrant was issued Gerchman was being held by the authorities at Fort Campbell where he had refused to consent to the search of his home and as a result of his refusal the search warrant had been taken out before the local judge of the General Sessions Court for the purpose of searching for these articles supposedly missing from Fort Campbell.
During the course of the search pursuant to this search warrant the officers found the four heaters belonging to Mr. Peacher in the home of the plaintiff in error.
At the time the officers arrived with this search warrant neither the plaintiff in error nor his wife was at home--the children were the only ones there. After they had waited a short while the plaintiff in error's wife came and the warrant was read to her. After this was done the authorities of Fort Campbell brought the plaintiff in error to the house where the warrant was again read to him.
The State in its proof showed the above mentioned facts and introduced as a witness one Sergeant Cowan of Fort Campbell C.I.D. who stated that when he talked to the plaintiff in error after this search the plaintiff in error admitted to him (tr. p. 55) that he entered the house of Mr. Peacher (of course he did not mention the man's name but he identified the place where he did enter the house which under the proof is that of Mr. Peacher) and there stole the four heaters for which he was indicted herein.
Plaintiff in error took the witness stand on his behalf and denied the theft and stated that these heaters if they were there, and he did not know they were there, were left there by one Pettus who at that time was serving a term in the penitentiary for other thefts in and around Clarksville. The plaintiff in error likewise denied that he had told Sergeant Cowan that he had stolen these things. Upon repeated cross examination on the question he finally said that he probably did tell him that he stole the heaters but he did not know why because it was not so.
In rebuttal the State brought Pettus from the penitentiary and used him as a rebuttal witness and he denied emphatically that he had committed the burglary or stolen these heaters and left them at the plaintiff in error's home.
There are two assignments of error, one to the effect that the trial court erred in allowing the State to introduce evidence obtained as a result of the search because these heaters were not set forth in the search warrant as the property to be searched for. The second assignment of error is addressed to the fact that the trial court should have dismissed this case because Gerchman was denied a speedy trial.
As to the first assignment of error we think that it must be overruled because the record shows by the testimony of the officers that when they entered this home of the plaintiff in error on a proper search warrant that in going through the house to make the search for the things mentioned in the warrant they saw these heaters and immediately concluded that they were possibly the heaters that had been stolen some days before from the Peacher home. A deputy sheriff who had made an investigation of the breaking and entering and theft of the Peacher home had informed these officers who were making this search of this theft and what had been missing from the Peacher home. From this investigation these officers when they saw these heaters in this house from what had been told them naturally assumed that they were the heaters which had formerly been stolen in this other place. Upon investigation this was confirmed by Peacher who properly identified them by serial number, etc. Another very pertinent reason why this is not error is the fact of the testimony of Sergeant Cowan who details an oral confession of the plaintiff in error of the theft of the things that he was here indicted for. Then, too, when the plaintiff in error took the witness stand and first denied having made this confession and then said maybe he did and said he probably did and did not know why he did, all of these matters including the oral confession were factual situations from which the jury could fairly conclude that this crime had been committed. From this evidence the jury clearly could conclude beyond a reasonable doubt that the plaintiff in error was guilty...
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