Poole v. State

• Decision Date: 29 January 1971
• Parties: Arthur POOLE, Bernice North and Robert North, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 826

467 S.W.2d 826

4 Tenn.Crim.App. 41

Arthur POOLE, Bernice North and Robert North, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

Jan. 29, 1971.

Certiorari Denied by Supreme Court as to Bernice North and

Robert North May 3,1971.

Edwin C. Harris, Madisonville, and William Felknor, Maryville, for plaintiffs in error.

David M. Park, Atty. Gen., Robert H. Roberts, Asst. Atty. Gen., Nashville, Tom

J. Taylor, Dist. Atty. Gen., Athens, Kendred A. White, Asst. Dist. Atty. Gen., Madisonville, for defendant in error.

OPINION

MITCHELL, Judge.

Arthur Poole, Bernice North and Robert North, who will be referred to as defendants or by name were indicted in the Criminal Court of Monroe County, Tennessee on May 5, 1969 in an indictment charging in the first count burglary of a dwelling house of J. O. Evans, in the second count charging larceny of a heater, cooler, shotgun shells and utensils of the value of $20.00, the personal property of J. O. Evans. The offenses were alleged to have been committed on the _ _ day of March, 1969.

The defendants were tried on September 24, 1969 and were convicted of petit larceny and the juty fixed their punishment at 90 days in jail and a fine of $250.00 each. The presiding Judge, Honorable James C. Witt pronounced judgment on the verdict of the jury from which the defendants appealed in error to this court.

The defendant Arthur Poole having been adjudged indigent prior to the trial was represented by court-appointed counsel, Honorable Edwin C. Harris. The defendants Bernice North and Robert North were represented by Honorable William B. Felknor, privately retained counsel.

The testimony of the State's witnesses showed that about March 12, 1969 a summer cabin of J. O. Evans in the Turkey Creek area of Monroe County had been broken into and the personal property mentioned in the indictment had been stolen. On that date two young men had driven in their vehicle up in the vicinity of the Evans' cabin to cut wood. A light show was on the ground and they saw tracks of an automobile made by mud or snow tires leading up to the cabin in question. They also saw tracks of a woman and two men and they started back to report their discovery. They met an oncoming automobile in a narrow road where they had to stop and exercise care in passing. These two witnesses saw a woman driving the car and a man seated in the front seat with her and another man in the back seat. They took the number of the 1967 Chevrolet automobile in which these three persons were riding and further investigation revealed that the car belonged to Robert North or Mrs. North and it was at their residence.

Officers went to the home of Robert North where they arrested him and his wife together with the defendant Arthur Poole. These two young men who had observed the automobile in the vicinity of the Evans' cabin identified Mr. and Mrs. North as the occupants of the front seat of the automobile. They were unable to identify Arthur Poole as they did not have a good opportunity to see the man who was in the back seat and therefore did not know him.

The officers also went to the Evans' cabin and confirmed the fact that it had been broken into. The prosecutor Evans gave the officer information about the articles that had been taken from his cabin.

The proof showed that the defendant Poole was the husband of Mrs. North's sister, who lived in Blount County, but Mr. and Mrs. North stated that the defendant Poole had only been at their house a short time and that he came there for the purpose of repairing Mr. North's automobile. On March 13, 1969 a deputy sheriff obtained a search warrant and made a search of the defendant North's residence where he found some of the articles later identified by the prosecutor as having been taken from his cabin.

Prior to the trial the defendants filed a motion to suppress the evidence under the authority of T.C.A. 40--519. The trial court heard the motion and ruled that the search was legal and that the articles seized could be admitted in evidence in the case. When the defendant again attacked the search warrant on the trial, the court ruled that the matter had already been acted on by him on the motion to suppress and received in evidence the articles seized in the search to which the defendants objected.

Mr. and Mrs. North took the witness stand and testified in their own behalf and in behalf of the co-defendant Poole. They denied that they had been in the vicinity of the Evans' cabin on the day in question and denied that the young men saw them there in the automobile as they had testified. They testified they did not break into the cabin, that they were never in Mr. Evans' cabin and did not know anything about the burglary or of the larceny of personal property alleged to have been stolen. That they had never seen the electric heater before, that he did not have it in his house that if it was there somebody planted it there. That they did not steal anything from Mr. Evans. Mr. North further testified that the water jug and the electric heater were not in his house if it was there, the officer must have put it there.

They also testified that the defendant Poole was Mrs. North's brother-in-law and that he had just arrived at their house a short time before the officers came to arrest them and that he had come there for the purpose of working on the transmission of Mr. North's car at Mr. North's request. The defendants relied on an alibi and contended that they had been engaged on the day in question in delivering coal to several different houses. The owner of the coal truck and some of the customers corroborated the testimony of the defendants in this respect. This proof of their alibi did not preclude the possibility that the defendants could have been at the scene of the burglary at the time in question.

The assignments of error made by the defendant Arthur Poole have been summarized by the Attorney General in his brief as being an attack on the sufficiency of the evidence as to him and that the search of North's residence was unlawful. We do not think the defendant Poole is in a position to question the validity of the search of the North residence. In Templeton v. State, 196 Tenn. 90, 264 S.W.2d 565, it was held:

'The protection extended by the Constitution of security in person, houses, papers and effects inures to protection of person in possession only and does not extend to third persons. Allen v. State, 161 Tenn. 71, 29 S.W.2d 247. Therefore, the invasion by the officers in this case of the private property belonging to or in the possession of Thomas Bowles was not a violation of the constitutional protection against unlawful searches and seizures of the defendant.'

The proof against Arthur Poole is wholly circumstantial. The State's witnesses who identified Mrs. Bernice North as the driver of the car and her husband Robert North on the front seat with her in the vicinity of prosecutor Evans' cabin on the day in question, were unable to identify the third person on the back seat of the car, so they did not know who was with the defendants Mr. and Mrs. North. The only other circumstance which might connect Poole with the offense charged was his presence in the home of the Norths at the time of the arrest.

The evidence is not sufficient to support a verdict of guilty of petit larceny as to Arthur Poole. The evidence preponderates against his guilt and in favor of his innocence.

In the case of Arthur Poole the judgment is reversed and remanded for a new trial on the ground that the verdict is not warranted by the proof.

We will now consider the assignments of error made by the defendant, Robert North and his wife Mrs. Bernice North, in the order in which they have been summarized in the brief of the Attorney General.

The first assignment of error is that the court erred in overruling the motion filed by the defendants to suppress for the use as evidence any property seized from him or their home in Monroe County and failed to suppress the search warrant used in this case.

Prior to the trial the defendants filed a motion to suppress the evidence and the search warrant. The trial judge heard the motion and the evidence offered in support of it. The following grounds were set out in the motion to suppress:

'1. Parts of said property were seized without a warrant.

2. The search warrants used were insufficient on the face of said warrants.

3. The property seized was not that described in the warrants.

4. There was not probable cause for believing the existence of the grounds on which the warrants were issued.

5. Said search warrants were issued on false information known by both the affiant and the issuing magistrate to be false.'

On the hearing of the motion to suppress the defendants introduced Alfred Moser a deputy sheriff who had made an affidavit to and obtained the search warrant in question, issued by Charles Hall, Justice of the Peace.

After showing by Alfred Moser that he executed the affidavit which was a part of the search warrant, defendants' counsel then asked him if he did in fact receive information from John Doe, a responsible and reliable citizen of said State and county whose name he had that day disclosed to the judge. The District Attorney objected. Defense counsel insisted he was entitled to have an answer to his question that 'it states affirmatively that he received information from one John Doe, who is named in the search warrant, we respectfully submit to the court that if in fact there was no such person as John Doe then he could not have received the information and this is a false affidavit.'

The court ruled that it was not necessary to put on proof on that subject, that it was a question of law, that nobody insisted there is a man named 'John Doe', that it was just a question of whether or not you can use John Doe in that fashion.

On the John Doe question Garner v. State, 220...