Gulley v. State

• Citation: 219 Tenn. 114,407 S.W.2d 186,23 McCanless 114
• Parties: , 219 Tenn. 114 Charles Wade GULLEY, Jr. v. STATE of Tennessee.
• Decision Date: 07 October 1966
• Court: Supreme Court of Tennessee

Page 186

407 S.W.2d 186

23 McCanless 114, 219 Tenn. 114

Charles Wade GULLEY, Jr. v. STATE of Tennessee.

Supreme Court of Tennessee.

Oct. 7, 1966.

David Vincent, Asst. Public Defender, Nashville, for plaintiff in error.

George F. McCanless, Atty. Gen., Robert F. Hedgepath, Asst. Atty. Gen., Nashville, and Howard Butler, Asst. Dist. Atty. Gen., Nashville, prosecuted case for State in the trial Court, for the State.

OPINION

BURNETT, Chief Justice.

The plaintiff in error, Gulley, was convicted of grand larceny. The trial court, after overruling his motion for a new trial, sentenced him in accordance with the verdict of the jury to serve from three (3) to five (5) years in the State penitentiary. It is from this conviction that this appeal comes.

The assignments of error, brief and argument in behalf of the plaintiff in error may be summed up under two propsitions, to-wit: (a) that the evidence preponderates against the verdict of the jury and in favor of the innocence of the accused; and (b) that the trial court erred in allowing the State's witness to introduce a list of items, which were stolen from his business, and which were not listed in the indictment returned against Gulley.

A manager of a hardware company of Nashville testified that his business was broken into on the night of January 21, 1965. A door was broken and a number of items of personal property stolen. This witness first called the Nashville Police and subsequently took an inventory of his stock and from that inventory prepared a list of missing merchandise. The list of items which he prepared was given to the police authorities, and at the time of the trial was introduced into evidence over the objection of the plaintiff in error.

This witness identified, among other things, a television set at police headquarters as being one of the items which was stolen from his store. He also identified two pistols as having been stolen from his place of business. The value of the merchandise which he identified, and which got into the hands of plaintiff in error, was in excess of one hundred ($100.00) dollars.

The television set which was identified by this manager was one of a number of items which was listed in the indictment and which was loaded that night after the robbery into a car of Virginia and Curry Clemmons. Mrs. Clemmons testified that she and her husband met the plaintiff in error, Gulley, and some other fellows at a restaurant about 11:00 p.m. on that night. She stated that the plaintiff in error and these other men had a talk with her husband. Following this discussion she and her husband in company with the plaintiff in error, Gulley, drove out on Dickerson Road where they parked the car for over thirty minutes. During the time that the car was thus parked she walked to a nearby service station for a coke, and upon her return found the car loaded with 'stuff'. The hardware store that had been robbed is located at 2327 Dickerson Road in Nashville.

The same witness, Mrs. Clemmons, stated that she drove the car home that night. She further said that the next morning she noticed a large number of items in a corner of one of the rooms of their house. These items were partially covered but she did see a portable television set among them.

On cross-examination by counsel for plaintiff in error she stated that her husband (who had been jointly indicted with Gulley) had agreed to a sentence of six (6) months for his part in this crime.

An employee of the restaurant where they had met that night testified that he accompanied Gulley and another man to the home of Curry Clemmons, the husband of Mrs. Clemmons, after January 21, 1965, the date of the robbery, and purchased a General Electric portable television set from them for fifty ($50.00) dollars. This witness testified that he handed this fifty ($50.00) dollars to Clemmons who was standing nearest him, whereupon the plaintiff in error, Gulley, 'took the $50.00 bill away from Mr. Clemmons and said, 'give this to ole dad'.' This witness further testified that he bought a rifle for fifteen ($15.00) dollars on that same occasion. He later found out that the television set and rifle had been stolen and turned them over to the police. This was the same merchandise stolen from the Inglewood Hardware Company on January 21, 1965.

The plaintiff in error, Gulley, did not take the witness stand on his behalf, and there were no witnesses offered on his behalf.

It seems to us unquestionably that the overwhelming evidence supports the conviction of this plaintiff in error. It is perfectly clear from this transcript that the items above mentioned, which Anderson purchased from plaintiff in error, were stolen on the night of January 21, 1965, and were included among other items set forth in the indictment. These items were loaded by plaintiff in error along with other persons into the car of his accomplice, Clemmons, around midnight of this same night, and they were loaded in the vicinity of the hardware store which had been robbed.

The television set was purchased by this witness offered in behalf of the State at such an unreasonably low price that it seems to us that it would clearly indicate that the property had been stolen. The fact is when this witness was cross-examined by the counsel of plaintiff in error he was asked about this, and it was only natural for the court and jury hearing this evidence to conclude that it had been stolen.

Then, too, the wife of one of the associates of the...