Gossett v. State
| Decision Date | 22 May 1970 |
| Parties | , 224 Tenn. 374 Estell GOSSETT and Winford (Bobby) Johnson, Plaintiff in Error, Respondent, v. STATE of Tennessee, Defendant in Error, Petitioner. |
| Court | Tennessee Supreme Court |
George F. McCanless, Atty. Gen., Paul E. Jennings, Asst. Atty. Gen., Nashville, and Harry C. Templeton, Dist. Atty. Gen., Winchester, for petitioner.
O. W. McKenzie, Dayton, for respondent.
In a three-count indictment Gossett and Johnson were charged with third degree burglary, grand larceny and receiving and concealing stolen property with a value of more than One Hundred Dollars. The jury returned a not guilty verdict as to the first two counts but found them guilty of the third count, and their punishment was fixed at not less than three nor more than eight years in the State Penitentiary. The Court of Criminal Appeals reversed. The judges were of the opinion that there was no evidence in the record that the Defendants received the property from some third person, that all of the evidence is to the contrary, and that the State concedes that there is no direct proof in the record that the Defendants knew the property had been stolen or that they received it from a third person. From this point the Court reasoned that the essential elements prescribed in T.C.A. § 39--4217 are lacking in the evidence presented for conviction of the crime of receiving so the conviction of receiving stolen property was reversed. Under the holding of Jones v. State, 219 Tenn. 228, 409 S.W.2d 169, and particularly Deerfield v. State, 220 Tenn. 546, 420 S.W.2d 649, the case was remanded for a new trial on the single charge of concealing stolen property. The judges were of the opinion that there was no direct evidence that the Defendants knew the property had been stolen. Kessler v. State, 220 Tenn. 82, 414 S.W.2d 115.
The Opinion of the Court of Appeals was filed prior to our Opinion in Tackett v. State, Tenn., 443 S.W.2d 450. We granted Certiorari in this case for the same reason Certiorari was granted in Tackett because of the apparent misunderstanding of the Court's Opinions in Deerfield and Kessler; also, to determine whether or not the rule pronounced in Tackett is applicable to the facts of the instant case.
In Tackett v. State, supra, we state:
'That is, the existence of guilty knowledge is to be regarded as established when the circumstances surrounding the receipt of the property were such as would charge a reasonable man with notice or knowledge or would put a reasonable man upon inquiry which if pursued would disclose that conclusion.' Wharton's Criminal Law & Procedure, Anderson, Vol. 2, p. 281, § 568.
In Tackett, the Court held that neither Deerfield nor Kessler had any direct application to the facts of that case. In Tackett we held another proposition applicable:
This is in general accord with 76 C.J.S. Receiving Stolen Goods § 17b, Wharton's Criminal Evidence, Vol. 1, Chap. 4, Sec. 135; Pearson v. United States, 6 Cir., 192 F.2d 681 (1952); Minor v. United States, 8 Cir., 375 F.2d 170, certiorari denied 389 U.S. 882, 88 S.Ct. 131, 19 L.Ed.2d 177 (1967).
The proof is that sometime between December 24, and 7:00 A.M. on December 27, in the year 1966, John Oster Manufacturing Company was forceably entered. An attempt was made to break into the Company's safe. Various windows had been broken and there existed footprints in the mud outside the building and muddy footprints inside the building. This occurred while Oster was closed for the Christmas Holiday and was discovered when the plant engineer appeared on the scene following which the local police were summoned. On that same day employees of Oster were cleaning up the premises surrounding the building. In the process of clean-up, ten cartons of Oster merchandise were found in a wooded area approximately one-fourth mile as the crow flies and one mile by road from the Oster plant. No direct evidence was offered as to how or when the ten cartons were placed in the wooded area. The condition of the cartons is in dispute as to whether they had weathered or not and they were not offered in evidence by the State nor did the defense request that they be presented. There is no dispute over the fact that the cartons were clearly marked with the name John Oster Manufacturing Company and that the Defendants knew the identification. On behalf of Oster it was contended that the goods are owned by Oster and were stolen from Oster. The police officers who had been summoned, observed the cartons, marked each one for later identification and replaced them in the wooded area where they had been discovered. On the evening of December 27, about 7:30 P.M. the Defendants entered the dirt road which had a dead-end in the wooded area where the cartons were located. Defendant Johnson was driving the automobile. They loaded the cartons in the truck and back seat of the car. While driving on the dirt road they were stopped by police officers who had staked out the area. They were arrested and charged. The Defendants explanation was that they had been rabbit hunting from between 10:00--11:00 A.M. to 4:00--5:00 P.M. on December 27, over a wide area in the vicinity of the manufacturing plant. They contend that about 4:00 P.M. in the afternoon they entered the wooded area on foot, observed the cartons among other refuse and assumed that they had been discarded or abandoned. Defendants returned to their car and proceeded to their respective homes. After the evening meal they met each other by chance without any prearrangement in downtown Dayton. After discussing the events of the day they decided to enter the dirt road and pick up the cartons which they did. Defendant Gossett denied that he had ever been in the manufacturing plant, but Defendant Johnson admitted that he worked as a painter for the contractor who built the plant and that his employment at the plant site ended about one month before the Christmas Holidays.
Both Defendants deny that they were guilty as charged and contend that they took possession of the cartons not knowing they had been previously stolen, believing the cartons had been thrown out with the other rubbish found in the area. The record reveals that the Defendants had been previously convicted of burglary several years ago and served seven months for that offense.
The presumption of innocence, which the law accords an accused prior to conviction, disappears and is replaced by a presumption of guilt which puts upon him the burden of showing upon appeal that the evidence preponderates against the verdict and in favor of his innocence. We may review the evidence only to determine whether it preponderates against the verdict and, in doing so, we must take the verdict as having established the credibility of the State's witnesses. The verdict will be disturbed on the facts only if the evidence clearly preponderates against it and in favor of the innocence of the accused. Gulley v. State, 219 Tenn. 114, 407 S.W.2d 186; Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768, Pryor v. State, 217 Tenn. 695, 400 S.W.2d 700; Monts v. State, 218 Tenn. 31, 400 S.W.2d 722; Patterson v. State, 218 Tenn. 80, 400 S.W.2d 743; Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523; McBee v. State, 213 Tenn. 15, 372 S.W.2d 173; Kirby v. State, 214 Tenn. 296, 379 S.W.2d 780; Gann v. State, 214 Tenn. 711, 383 S.W.2d 32.
This Court has no authority to raise inferences nor to substitute its judgment upon proven facts for the judgment of the jury. Inferences to be drawn upon circumstantial evidence are for the jury and not for the appellate tribunal, and it is not the province of this Court to substitute its own inferences for those drawn by the jury. Smith v. State, 205 Tenn. 502, 327 S.W.2d 308; Nichols v. State, 200 Tenn. 65, 289 S.W.2d 849; Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856; Stanley v. State, 189 Tenn. 110, 222 S.W.2d 384.
The jury found that the evidence did not support a conviction for burglary or larceny. 'Larceny is the felonious taking and carrying away the personal goods of another.' T.C.A. § 39--4202. T.C.A. § 39--4223 states 'If any person come, by finding, to the possession of any personal property of which he knows the owner, and unlawfully appropriates the same, or any part thereof, to his own use, he is guilty of larceny, and shall be punished accordingly.' The Court included in the charge to the jury the provisions of these Statutes.
There is sufficient evidence in the record to sustain a conviction under that charge if the jury had so found. The undisputed proof conclusively shows the Defendants in possession of the cartons within a few hours of the burglary. The jury evidently felt warranted in foregoing this verdict in favor of the receiving and concealing count...
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