Lawrence v. Mullins

• Decision Date: 30 December 1969
• Citation: 224 Tenn. 9,2 Pack 9,449 S.W.2d 224
• Court: Tennessee Supreme Court
• Parties: , 224 Tenn. 9 Dr. W. E. LAWRENCE, and B & B Loan Company, a partnership composed of Dr. W. E. Lawrence and Burt Waller, partners, Petitioners, v. Bobby Lewis MULLINS, Respondent.

Page 224

449 S.W.2d 224

2 Pack 9, 224 Tenn. 9

Dr. W. E. LAWRENCE, and B & B Loan Company, a partnership composed of Dr. W. E. Lawrence and Burt Waller partners, Petitioners, v. Bobby Lewis MULLINS, Respondent.

Supreme Court of Tennessee.

Dec. 30, 1969.

Lloyd Tatum, Henderson, for petitioners.

Keith Moore, Memphis, for respondent.

OPINION

C. HOWARD BOZEMAN, Special Justice.

This case comes to this Court by grant of Writ of Certiorari from the Court of Appeals, Western Section. The Court of Appeals, Western Section, in a split decision affirmed the action of the Trial Court in ordering $4,171.00 in custody of the Clerk of the Court returned to the Respondent from whom it had been originally taken through unlawful and illegal search and seizure under an invalid search warrant. From the record we conclude that the question of ownership--rightful owner of the money--was not determined by the Trial Court but both the majority and minority Opinions of the Court of Appeals found: 'We are convinced beyond a reasonable doubt that the funds taken from the person of Bobby Lewis Mullins were in fact a part of the actual currency stolen by Bobby Lewis Mullins from the offices of Dr. Lawrence and B & B Loan Company.'

On September 10, 1966, the Respondent, Bobby Lewis Mullins, made an unlawful entry into the offices of B & B Loan Company and Dr. W. E. Lawrence. In addition to checks, $1,975.37 in currency, mostly in Twenty Dollars bills, was taken from the safe of B & B Loan Company and slightly over $18,000.00 in currency, primarily One Hundred Dollar bills, although there were other denominations therein, was taken from Dr. W. E. Lawrence's medical office safe. On September 16, 1966, warrants were issued by the General Sessions Court of Hardeman County, Tennessee, charging Bobby Lewis Mullins with third degree burglary and larceny for these two events. On September 16, 1966, an officer of the Tennessee Bureau of Identification delivered to the Court Clerk the sum of $4,171.00 in currency, composed of: twenty-eight, One Hundred Dollar bills; forty, Twenty Dollar bills; thirty-four, Ten Dollar bills; forty-six, Five Dollar bills; and, one, One Dollar bill. This money was obtained by means of a search warrant which shows that the said money was obtained from Bobby Lewis Mullins at 10:15 a.m. on September 15, 1966. Bobby Lewis Mullins was indicted at the January term, 1967, of the Circuit Court of Hardeman County. In March 1967, a motion to suppress as evidence the $4,171.00 taken from Mullins was filed. An amendment to the motion to suppress also was filed in March, 1967, asking that the $4,171.00 be restored to Mullins. Both Motions were under authority of T.C.A. 40--519. On September 6, 1967, the Motions came on to be heard before the Trial Court and by Order entered January 8, 1968, the Court found 'that the issue of probable cause fails and that the Petitioner (Mullins) was subjected to an unlawful search and seizure; that any and all evidence obtained thereby should be suppressed as evidence against the Petitioner, Bobby Lewis Mullins; and, that the Court should temporarily reserve its Opinion with respect to the return of $4,171.00 seized from the Defendant (Mullins) by means of the said unlawful search and seizure.'

On January 8, 1968, at the same time the above order was entered suppressing the evidence, Mullins entered a voluntary plea of guilty in writing to the offense of burglary in the third degree, and he was committed to the penitentiary for a term of three years.

All proceedings set out hereinabove were in the Criminal Division of the Circuit Court of Hardeman County and the appropriate documents are entered in the Bill of Exceptions in this cause.

On September 8, 1967, the Petition in the instant case was filed in the Circuit Court for Hardeman County and was docketed in the Law Division. On January 8, 1968, a summons was issued by the Clerk of the Court and with the Petition attached was served on Mullins. The Petition alleges that the $4,171.00 in the hands of the Clerk is a part of the same money which was stolen from the Petitioners by Mullins on the night of September 10 1966, and prays that the Court order the Clerk to return said money to the Petitioners and that said money not be delivered to the Respondent, Mullins. On May 6, 1968, Mullins filed a Motion to dismiss coupled with a Demurrer, both of which were overruled by the Trial Court. No answer in writing was ever filed.

On the hearing of the cause, May 10, 1968, without the intervention of a jury, the two Petitioners, Burt Waller and Dr. W. E. Lawrence, testified as to the loss sustained by them by action of Mullins and to the denominations of currency taken from them. The Court Clerk, Raymond Harris, entered certain records from the Criminal Division such as search warrants, indictments, plea of guilty, conviction and sentence as evidence in this cause. He orally testified without objection to the denominations of currency in his possession totaling $4,171.00 taken from Mullins. Carroll Leitschuh testified as to the impoverishment of Mullins prior to September 10, 1966, and his attained wealth after September 10, 1966.

After the Petitioners rested, the Respondent recalled the Court Clerk, Raymond Harris, for the purpose of introducing from the Criminal Division the Amendment to his Motion to suppress seeking to have the $4,171.00 returned to the Respondent and the Order of the Court dated January 8, 1968, referred to hereinabove. The Respondent, Bobby Lewis Mullins, did not testify and no other witnesses appeared for or on his behalf. The Trial Court found 'that the said petition of Dr. W. E. Lawrence, et al, should be denied and that the funds held in the custody of the court should be returned to Bobby Lewis Mullins, it appearing that the said funds were taken from the said Bobby Lewis Mullins as a result of an unlawful and illegal search and seizure under an invalid search warrant.' It is from this Order that the Petitioners appealed.

The Respondent contends that his Motion to suppress as evidence and to return of the money to Respondent was pending in the Criminal Division of the Trial Court at the time this action was begun in the Law Division of said Court and that an evidential hearing had been held on said Motion; therefore, he concludes that the present action is improper. He further contends that the evidence heard by the Trial Court on said Motion is not included in the Bill of Exceptions before us; therefore, the Court of Appeals committed error while reaching a correct Opinion, by not holding that the Trial Court had additional evidence which required its verdict to be affirmed because the same was not included in the Bill of Exceptions.

The first contention of Appellee is without merit. The Trial Court was correct in reserving his Opinion with respect to the returning of the money to the Respondent in the hearing to suppress evidence in the criminal case. Such property held by the Court for the purpose of developing or proving a criminal charge preferred against the party from whose custody it was taken should not be turned over to any party until after final disposition of the criminal proceedings. In the criminal case, final disposition of the criminal proceedings ended with a written plea of guilty and a conviction on January 8, 1968. This was the same day that the Summons with Petition attached was served on the Respondent in the instant case. The issue was thereby drawn between the Petitioners and the Respondent for the Court to determine the superior right of possession and title as between the parties to the $4,171.00 in possession of the Court. Such an action is entirely proper after final disposition of the criminal case.

We cannot agree with the second contention of Appellee. The present Petition was not even filed at the time the Original Petition in the criminal case was heard and Dr. Lawrence and B & B Loan Company were in no sense parties to the litigation, only the State of Tennessee and Mullins. Mullins was served with process and given opportunity to submit evidence in his behalf on the hearing of the present cause. He elected not to do so by deposition or otherwise. The Bill of Exceptions does contain all of the evidence heard by the Trial Judge on the present Petition of Dr. Lawrence and B & B Loan Company for the delivery of the property to them.

The Trial Court based his Order and the majority of the Court of Appeals based its Opinion returning the money to Mullins which admittedly was taken from him by unlawful and illegal means on an erroneous interpretation of the following applicable sections of the Code:

'40--513. Disposition of property.--When the property is taken under the warrant and delivered to the magistrate, he shall, if it was stolen or embezzled, cause it to be delivered to the owner, on satisfactory proof of his title, but if the warrant was issued on the second, third, or fourth ground specified in § 40--502, he shall retain the property in his possession, subject to the order of the court to which he is required to return the proceedings, or of the court in which the offense is triable.'

'40--515. Restoration of property to defendant.--If it appear that the property is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the ground on which the warrant issued, the...