Kessler v. State
| Decision Date | 07 April 1967 |
| Parties | , 220 Tenn. 82 Joseph E. KESSLER v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
James H. Bateman, Nashville, for plaintiff in error.
George F. McCanless, Atty. Gen., and Edgar P. Calhoun, Asst. Atty. Gen., Nashville, for the State.
Harry G. Nichol, Dist. Atty. Gen., and Howard Butler, Asst. Dist. Atty. Gen., Nashville, prosecuted the case for the State in the trial court.
Kessler was indicated and convicted of receiving and concealing stolen property and sentenced to serve not less than one (1) nor more than five (5) years in the penitentiary. It is from this conviction that the present appeal stems.
The original indictment was for larceny of certain described narcotic drugs and for receiving and concealing said drugs. After a trial on his plea of not guilty, the jury found Kessler guilty of petit larceny and of receiving and concealing stolen property of a value of less than $100.00. The trial judge ordered the verdict as to the larceny count stricken and pronounced judgment on the conviction of receiving and concealing stolen property. This crime is a violation of T.C.A. § 39--4217, which makes it an offense to conceal or aid in the concealing of property knowing that it has been stolen with the intent to deprive the true owner thereof. The gravamen, or essential element, of the violation of this statute is the knowing, or having guilty knowledge, by the receiver that the goods were stolen.
The record in this case is in the form of a narrative bill of exceptions and insofar as the factual situation is concerned there is no argument about the facts. These are briefly that in August, 1963, a narcotic agent contacted other agents and through an informer certain narcotic drugs were arranged to the purchased from the defendant. In the first instance this informer arranged with the defendant to purchase certain drugs, but the enforcing officers of the Federal Narcotic Law desired to catch the man who was selling such drugs and this informer in contact with the defendant informed him that he desired to buy a larger amount than was then purchased by the informer.
Another Federal narcotic agent from Atlanta was brought in and he in turn contacted the defendant and arranged to purchase $2,000.00 worth of these drugs. After these arrangements had been made, which were that this agent from Atlanta would being $2,000.00 in a bag, he with defendant then went and placed this money in a locker in a bus station in Nashville and at that time the defendant informed this agent that they would have to go and get the drugs. They then drove to Bowling Green, Kentucky, and, after this agent waited an hour or so for him, the defendant came back and picked the agent up and he had these drugs in a paper sack. This agent told the defendant that they shouldn't have this paper sack of drugs lying on the seat of the car because they might be stopped or something, and then it was that the defendant concealed the sack of drugs under the hood of the car. They drove back to Nashville and while the defendant parked his car a short distance away from the bus station the agent from Atlanta went to get the money out of the docker. The defendant was to meet the agent in his car which was picked in front of the bus station. When the defendant came back to the car he was arrested by a local agent. Thus it was from this state of facts that this arrest and indictment were forthcoming.
The defendant assigns four errors: (1) that there is no proof that the receiving and concealing occurred in Davidson County, Tennessee; (2) that there is no evidence to show that the defendant had any knowledge that these drugs that he secured in Bowling Green, Kentucky, had been stolen; (3) that the search of automobile which had been parked a short distance from the bus station was unlawful and in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States; and (4) that certain arguments made by the District Attorney General to the effect that the defendant had only recently been convicted in the Federal Court for the sale of narcotics to the informer in this case were prejudicial.
The proof in the record is entirely by these various agents and by the owner of a local drug concern in Nashville, who testified that his concern was broken into and certain narcotics stolen from the safe therein. This druggist says the thieves entered his store through a hole cut in the roof, but that this hole was only large enough to allow a medium size man to get through and, since the defendant was so large and corpulent, it would be impossible for him to get through this hole. This druggist likewise identifies a portion of the drugs which the defendant got in Bowling Green, Kentucky, as being the drugs stolen from his safe.
There is not a scintilla of proof in this record that this defendant stolen such drugs or knew that they had been stolen. Likewise there is no proof whatsoever that this defendant received or concealed such stolen goods in Davidson County. The Assistant Attorney General argues that by placing these narcotics in this sack under the hood of the car and driving into Nashville that this amounted to a concealing thereof, and, since the narcotics were identified by the druggist, the theft is thus shown to have occurred in Davidson County, and...
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State v. Tharpe
...evidence must be cautiously examined to determine whether Deerfield should be applied. "Neither [Deerfield nor Kessler v. State, 220 Tenn. 82, 414 S.W.2d 115 (1967)] has any direct application to this case. Under the facts of this case another proposition is applicable, that the ... possess......
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State v. Anderson
...notice or knowledge or would put a reasonable man upon inquiry which, if pursued, would disclose that conclusion. Kessler v. State, 220 Tenn. 82, 414 S.W.2d 115, 117 (1967). There is no proof in the record concerning the circumstances under which the appellant received the chain The unexpla......
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Gossett v. State
...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 C......
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Meade v. State
...guilty knowledge of the defendant. In Tackett v. State, 223 Tenn. 176, 443 S.W.2d 450 the Court said: '. . . In Kessler (Kessler v. State, 220 Tenn. 82, 414 S.W.2d 115), we restated the objective test rule as to guilty knowledge of the theft, first adopted in this state in Wright v. State, ......