Hindman v. State
| Decision Date | 12 November 1964 |
| Citation | 19 McCanless 127,215 Tenn. 127,384 S.W.2d 18 |
| Parties | , 215 Tenn. 127 Jimmy HINDMAN and King Shropshire v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
Witt, Gaither, Abernathy, Caldwell & Wilson, Chattanooga, James W. Gentry, Jr., Chattanooga, of counsel, for plaintiff in error Jimmy Hindman.
Dietzen, Parks & Dietzen, Chattanooga, J. W. Dietzen, Chattanooga, of counsel, for plaintiff in error King Shropshire.
George F. McCanless, Atty. Gen., Marne S. Matherne, Asst. Atty. Gen., Nashville, for the State.
The plaintiffs in error, Hindman and Shropshire, were indicted under a two-count indictment charging (1) burglary of a business house and (2) charging receiving and concealing stolen property. The jury, after pleas of not guilty had been filed, found both defendants guilty of burglary in the third degree and fixed the punishment at not less nor more than three (3) years in the penitentiary. From this conviction each defendant has seasonably appealed, able briefs have been filed by the counsel representing the respective parties, and arguments have been heard. After a very thorough consideration of the entire record, briefs, authorities and making an independent investigation of the matter, we are now in a position to decide the case.
The transcript is abridged and it is shown by stipulation the evidentiary facts necessary to determine this lawsuit. Both plaintiffs in error raise the same questions. The assignments are two in number, to-wit: (1) there is a fatal variance between the indictment and the proof concerning the ownership or occupancy of the burglarized premises; and (2) there is a fatal variance regarding the ownership of the three tires stolen. Thus it is, the only question is whether there is a fatal variance between the indictment and the proof.
These parties were convicted under the first count of the indictment which charges that they on a certain date 'did unlawfully, feloniously and burglariously break and enter into the business house of Mrs. C. W. Stiles, an individual doing business as Soddy Lake Amoco, with intent to commit a felony,' etc., and then larceny is alleged and that certain tires were stolen and that these were the property of Mrs. W. C. Stiles, an individual doing business as the Soddy Lake Amoco, with the intent to convert the tires to their use.
The portion of the indictment under which conviction was had is based upon § 39-904, T.C.A., which defines burglary in this third degree. Under this indictment where the plaintiffs in error are convicted of breaking and entering a business house with the intent to commit a felony, that is to steal these tires, there is the intent to commit this felony charged, and such breaking and entering and the taking of the property therefrom feloniously is a violation of the statute.
The only witness for the State concerning the occupancy of the premises and of the property taken therefrom was Mr. W. C. Stiles. He testified on direct examination that he operated the Soddy Lake Amoco Service Station which he thought was in his wife's name; and that he and his wife operated two service stations, the one in Soddy being in his wife's name, and one in Daisy being in his name; that the sale tax payments for the Soddy Lake Amoco Service Station, the one robbed and the one that was in his wife's name, were made in his wife's name. He says further that he usually slept in the backroom of the Soddy Lake station because there had been previous trouble there, and that on the night of October 15, 1963, when it was burglarized, he was sleeping there and that he heard the break-in and he identified Hindman as one of the three persons that broke into this service station. He says they took these three tires, two of which were recaps and one was a new tire, with a total value of $45.00. He says he called the police and that he knew Hindman and gave his name to the police; and that he later identified one of the other parties to this break-in.
On cross-examination he testified that he was not positive about whose name the Soddy Lake station was in, but that he knew that he had signed the leases to the two stations, and he specifically stated that he signed the lease with the American Oil Company for the Soddy Lake Station; that he bought the tires that were stolen and paid for them with his own money. He also said that his wife's name was on the front of this station that was robbed.
As indicated in the outset hereof the only question raised here is that there was no evidence to sustain this verdict because there was a fatal variance between the indictments and the proof regarding the ownership and lawful occupancy of the premises which had been burglarized and of the ownership of the tires allegedly taken in this burglary. It is argued likewise in support of this contention that there was no evidence given by the State on behalf of the alleged owner that the plaintiffs in error did not have permission to enter the premisses.
The offense for which these men were convicted, burglary in the third degree, is complete when it is shown that they have broken into this building with the requisite intent to take something therefrom which was not theirs. Of course, burglary is not...
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McGlothlin v. State
...that the accused broke into a building specified in TCA § 39--904 with the requisite intent to commit a felony therein. Hindman v. State, 215 Tenn. 127, 384 S.W.2d 18. In my judgment, therefore, the contention that third degree burglary is a lesser included offense of first degree burglary ......
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Walker v. United States
...inter alia, the unlawful entry and felonious intent had occurred simultaneously. E.g., Duchac, 505 S.W.2d at 240; Hindman v. State, 384 S.W.2d 18, 20 (Tenn. 1964); Petree v. State, 530 S.W.2d at 94. 12. Sections 29.01 and 29.02 remain unchanged in relevant respects. 13. The Government does ......
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State v. Ralph, 97-00019
...against the legal title or ownership of the property. See State v. Davis, 613 S.W.2d 218, 220 (Tenn. 1981); Hindman v. State, 215 Tenn. 127, 384 S.W.2d 18, 20 (Tenn. 1964); Hobby v. State, 480 S.W.2d 554, 556 (Tenn. Crim. App. In contrast, theft is an offense against the legal title or owne......
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