Liakas v. State

• Decision Date: 03 February 1956
• Citation: 199 Tenn. 298,3 McCanless 298,286 S.W.2d 856
• Parties: , 199 Tenn. 298 Dean Defort LIAKAS and Frank James Ellsworth, v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 856

286 S.W.2d 856

3 McCanless 298, 199 Tenn. 298

Dean Defort LIAKAS and Frank James Ellsworth, v. STATE of Tennessee.

Supreme Court of Tennessee.

Feb. 3, 1956.

Thomas L. Robinson, Memphis, for plaintiffs in error.

Nat Tipton, Advocate Gen., Nashville, for the State.

BURNETT, Justice.

The plaintiffs in error were indicted, tried and convicted for receiving stolen property of the value of more than $60. For this offense the jury fixed their punishment at not more than seven years confinement in the State Prison. It is from this judgment that the plaintiffs in error have seasonably perfected their appeals. Excellent briefs have been filed on both sides and a very able argument heard on behalf of the plaintiffs in error. We have studied this record, the briefs and read all authorities cited and made quite an independent investigation, because of the particular interest related to some of the questions involved. Having done this we now have the matter for determination.

On September 2, 1954, at noon a traffic policeman on duty at Capitol Boulevard and Church Street in Nashville noticed two men running down, in a westwardly direction, Church Street. It was a rather hot day and he made some jocular remark about their speed. Immediately after he had seen these men, he saw Mr. Mallernee, a merchant of Nashville, running after them and calling to passersby, 'Stop that thief'. The police officer immediately gave chase to one of these two men who turned out to be Ellsworth the only person that he saw at the time and after capturing Ellsworth back of the Savoy Hotel on Seventh Avenue he took him back to Mr. Mallernee's store.

In the meantime the other man ran into Castner-Knott's store and an officer who was in this store on a shoplifting detail saw a commotion near the store and ran up and he and Mr. Mallernee caught Liakas. At the time they caught Liakas he was carrying a valise or bag. This bag that Liakas had in his possession contained two suits of clothes which Mr. Mallernee claimed to have been stolen from his store. The officer in company with Mr. Mallernee took Liakas to an anteroom at Castner-Knott's to search him for weapons. In the process of this search, he saw Liakas take a parking ticket out of his shirt pocket and undertake to swallow this claim check. This officer then grabbed Liakas by the hand and prevented him from swallowing the check which proved to be a claim check for a car parked in the Cain-Sloan Parking Garage. The officer and Mr. Mallernee then took Liakas back to Mr. Mallernee's store where they found the police officer had already arrived with Ellsworth. Both the officer Elliott who was in Castner-Knott's and the traffic policeman testify that when they reached this point, or that is, as they came in the store Mallernee and Elliott with Liakas, that Ellsworth offered Mr. Mallernee $1,000 to drop the prosecution but Mr. Mallernee very indignantly said he would not do it for $10,000.

After this was done Elliott the officer who was at Castner-Knott's store took the claim tag to the car which was parked in the parking lot and without a search warrant went to this parking lot and after a conference with the manager of the parking lot he was taken to where the car was stored there. The officer's testimony is that when he approached the car he could see through the windows a great number of men's suits, some in zipper bags and others lying loose on the seat. He also noticed that some of the clothes had no cuffs on the trousers. After examining this for some length this officer took the car and drove it back up to Mr. Mallernee's store where he in company with others investigated the contents of the car. Among the men's clothing found in this car was a suit which the authorities of Levy Brothers store in Memphis undertook, in the instant lawsuit, to identify as one that had come from their store.

The instant suit grew out of a double-barrel indictment for stealing and for receiving stolen goods, that is, the suit which Levy Brothers claimed came from their store. A Mr. Davis, one of the partners in Levy Brothers, testifies that on or about September 1, 1954, or the day before these plaintiffs in error were caught in Nashville that the plaintiffs in error came into Levy Brothers store in Memphis and Liakas purchased a pair of socks. He also testifies that while Liakas was looking at these socks that Ellsworth was in another part of the store where men's suits were hung on racks and that he took several of these suits off of the rack and examined them and looked at them. After Liakas had purchased his socks he asked where the dressing room was and went into the dressing room to put these socks on. It seems that when he went into the dressing room to do so that he had a suitcase with him and he stayed in that dressing room for some 20 or 25 minutes. At this time though, that is, September 1, 1954, the day before these two men were caught here in Nashville, there was apparently no suspicion attached to these plaintiffs in error, that is when they were in Levy Brothers store in Memphis.

The suit in question in this lawsuit was of a make and pattern carried by Levy Brothers store. The testimony is to the effect that the manufacturers of this suit make up an order of clothes for various retailers and put in it a label designating the store from which it was bought. This label had been cut out of the suit in question. In addition thereto, upon a tag on this suit there was undecipherable writing. Mr. Davis testified that a notation had been made on a suit by one of the clerks of the name of a prospective customer for whom it was being held. After the discovery of this suit in the possession of the plaintiffs in error, Levy Brothers records were checked by Mr. Davis and it was found that a suit of this precise description was missing from their stock and that the record contained no notation that this suit had ever been sold in the usual course of business. There was also testimony introduced, strenuously and seriously objected to, to the effect that in this car there was found a suit stolen from a Mr. Daniels in Memphis.

This rather long recitation of the facts of this case are necessary to arrive at the questions here presented. The very obvious assignment is that there was not adequate identification of the suit in question to have been taken from Levy Brothers; and that it was error for the trial court to permit testimony as to the search of the automobile in Nashville and that the admission of the testimony of Daniels about his suits being in this pile having been stolen from his store are all such harmful errors as to require this Court to reverse the case. There are other incidental things or questions presented herein but these all more or less revolve around the three questions last above mentioned and will all be discussed in the course of this opinion without taking up the assignments seriatim.

The question presented by the brief, so ably argued in oral argument, is that the evidence was not adequate for the jury to conclude beyond a reasonable doubt that this suit was the one missing from Levy Brothers store in Memphis. The evidence, it is true, is circumstantial but it is well settled in this State that the corpus delicti in criminal cases as well as in others may be proven by circumstantial evidence. Ford v. State, 184 Tenn. 443, 201 S.W.2d 539. In the course of the trial counsel in objecting to certain things that were attempted to be introduced, the court made the statement in reference to this circumstantial evidence that if there was a scintilla of evidence it would be necessary to let the matter go to the jury. This is an unfortunate statement and is not what the court meant. Of course there must be some material evidence of a fact to go to a jury even though this might be circumstantial. We in this State do not recognize what is known as a scintilla of evidence because if there was nothing more under our rules there would be no evidence.

The trial jury had before it the fact that a suit of clothes of the character and make here shown to the jury was missing from Levy Brothers store and that the inventory showed that such a suit had been purchased by them and that their sales record failed to disclose that it had ever been sold in the normal course of events. The jury also had before it the testimony that the two plaintiffs in error were in this store not too long before the loss of this suit was discovered and that one of them was seen to take a number of suits off of one of the racks in the store. The jury likewise had evidence to the effect that the missing suit was manufactured by the same manufacturer and of the same pattern as the one found in the possession of the plaintiffs in error. Of course the finding of this suit in the possession of the plaintiffs in error, and whether or not it could be offered in evidence will be dealt with very soon in our treatment of whether or not this could have been offered in evidence.

The plaintiffs in error both claimed that the car in which the suits were found was not theirs but they had in their possession the parking ticket for this car and it is shown that the car was registered in Liakas' wife's name.

The jury had evidence that the retailers label had been cut out of this suit and it was likewise evident that these suits still had the...