State v. Fowler

• Citation: 373 S.W.2d 460,213 Tenn. 239,17 McCanless 239
• Parties: STATE of Tennessee v. Ovanley FOWLER and Van Dunham. 17 McCanless 239, 213 Tenn. 239, 373 S.W.2d 460
• Decision Date: 05 December 1963
• Court: Supreme Court of Tennessee

Page 460

373 S.W.2d 460

STATE of Tennessee v. Ovanley FOWLER and Van Dunham.

17 McCanless 239, 213 Tenn. 239, 373 S.W.2d 460

Supreme Court of Tennessee.

Dec. 5, 1963.

Jim Camp, Lucius Camp and George O. Bradley, Sparta, for Van dunham.

T. Eugene Jared, Cookeville, of counsel, Maddux, Cameron & Jared, Cookeville, for Ovanley Fowler.

George F. McCanless, Atty. Gen., Walker T. Tipton, Asst. Atty. Gen., Nashville, for the State.

FELTS, Justice.

Plaintiffs in error, herein called defendants, Van Dunham and Ovanley Fowler, along with Bobby Lowery and Donald Lowery, were jointly indicted for larceny of a safe containing $400.00, the property of the Ideal Furniture Company of Sparta, and of a Ford truck belonging to Jerry Mitchell. The Lowery brothers admitted their participation in the crime, pleaded guilty, and are not defendants in this case. Defendants Dunham and Fowler, however, were tried together and found guilty of the larceny and their punishment fixed at three years in the penitentiary, and judgment was entered accordingly.

The defendants brought the case to this Court by an appeal in error, challenging the sufficiency of the evidence, to sustain their conviction and seeking a reversal and new trial upon a number of other grounds.

It is not the province of an appellate court to make an argument upon the facts in a case of this character or go into detail on the question of credibility of witnesses or slight discrepancies in their testimony. Cooper v. State, 123 Tenn. 37, 60, 61, 138 S.W. 826 (1909); Barnett v. Thirkield, 201 Tenn. 528, 538, 300 S.W.2d 905 (1956). Therefore, we state only our conclusions and such facts as are necessary to an understanding of the case.

Sometime during the night of September 8, 1961, or early morning of September 9, several unidentified persons burglarized the Ideal Furniture Company of Sparta, Tennessee, and stole a safe containing approximately $400.00. In conjunction with the burglary, they also 'straight wired' and stole a 1951 Ford truck of Jerry Mitchell.

The day following the burglary, two suspects, Bobby Lowery and Donald Lowery, were arrested and both admitted their participation in the burglary and theft of the truck and safe. At the same time, they undertook to implicate the defendants Fowler and Dunham in the crime.

The Lowery boys testified for the State that on the evening of Friday, September 8, Bobby Lowery, who had borrowed the defendant Van Dunham's green Ford station wagon, by chance ran into his brother, Donald Lowery, at the White County Fair in Sparta. A little later (after they had left and returned to the Fair), they ran into both defendants, and after some discussion, defendant Fowler indicated he wanted some help 'on a job.' As a result, a little before midnight, the two defendants, along with the Lowery brothers, left the fairgrounds in Dunham's station wagon, drove to Sparta, and stole the Ford truck and burglarized the furniture store, transporting the safe out of town in the stolen truck.

These accomplices further testified that after the store had been successfully burglarized, the party headed out of Sparta, Donald Lowery and defendant Fowler in the truck, and the other two men following in Dunham's station wagon. They drove the two vehicles out Highway 84, and proceeded to the defendant Fowler's farm where some tools were procured from defendant Fowler's brother, Leotis Fowler, and the safe was opened. Afterwards, the group divided the money and burned the other contents of the safe.

The testimony of the Lowery boys as to the manner of exit was substantially corroborated by another of the State's witnesses. It was also shown by the State that during the investigation of the burglary a pile of ashes was found on Fowler's farm approximately where the Lowery brothers testified they had divided the money and burned the papers which were in the safe.

The State also introduced disinterested witnesses who testified that on the night in question, they had seen four men moving around in the vicinity of the Furniture Company. They also stated that, later, four men came down the street and drove off with a truck parked behind the telephone company and proceeded to the vicinity of the Ideal Furniture Company. A while later, according to their testimony, the same truck drove off with a station wagon following it. These witnesses, however, were unable to identify any of these men.

It was further shown by the State that defendant Fowler's brother had signed a statement to the effect that he had aided the group in opening the safe by loaning them some tools. On the witness stand, however, he emphatically denied the truth of the statement and insisted that he signed it only because of fear and coercion.

Evidence for the defendants undertook to establish alibis. Defendant Dunham testified that he was with Bobby Lowery on the day preceding the burglary; that he had loaned his station wagon to Lowery and they had gone to the Fair and gotten drunk during the afternoon; that Lowery left him at his father-in-law's house about 7:00 P.M. on the night in question; and that he did not see Lowery or the station wagon again until the day after the robbery.

Dunham further testified that he did not wake from his drunken sleep until about 10:00 P.M., when he left his father-in-law's place and went back to the Fair. He said he parked his car in the lot at the fair-ground, proceeded to pass out from his drunken condition, and remained in the car until found by his wife and father-in-law shortly before dawn. His wife and other members of her family substantially corroborated his story.

Defendant Fowler undertook to establish a similar alibi. He testified that on the night in question he was at the White County Fair along with several other members of his family, and that he did not see either Dunham or the Lowery brothers at all that night. He stated that about 12:15 A.M. he and his family left the Fair and drove to their home which took approximately 45 minutes, and shortly after their arrival, several other relatives, also on their way home from the Fair, dropped by for a short visit. After the guests left, defendant testified that he went to bed and did not leave the house again until 6:00 A.M. the next morning. Some nine witnesses, all close relatives, however, substantially corroborated his alibi.

In the first three assignments of error, it is insisted that the only direct evidence in the record tending to connect defendants with the crime is the testimony of the Lowery brothers, admitted accomplices in the burglary; that the State has failed sufficiently to corroborate their testimony; and that, therefore, the evidence does not sustain the verdict.

We consider these assignments together, for there can be no question about the sufficiency of the evidence, if there is substantial corroboration of the testimony of Bobby and Donald Lowery, the two admitted accomplices of defendants in the crime.

Under the common law, the testimony of an accomplice, if it satisfies the jury beyond a reasonable doubt of the guilt of the defendant, may be sufficient to warrant a conviction although it is uncorroborated. The rule in this State, however, requires corroboration, and there should be some fact testified to entirely independent of the accomplice's testimony, which, taken by itself, leads to the inference, not only that a crime has been committed, but that the defendant is implicated in it, and the corroboration must consist of some fact that affects the identity of the party accused. Clapp v. State, 94 Tenn. 186, 195, 30 S.W. 214 (1894); Sherrill v. State, 204 Tenn. 427, 433, 434, 435, 321 S.W.2d 811 (1958); Garton v. State, 206 Tenn. 79, 87, 88, 332 S.W.2d 169 (1959).

The State undertook to corroborate the testimony of the accomplices by a number of circumstances. First, it introduced evidence that on the night of the crime, both defendants were seen talking with the Lowery brothers at the Fair in Sparta. Secondly, it adduced evidence that Dunham's dark green Ford station wagon was seen by two disinterested witnesses near the scene of the burglary on the night in question.

We think further corroboration is afforded by the testimony of the same disinterested witnesses who saw four unidentified men go behind the telephone company and drive away in the truck with which the defendants are now charged with stealing. Finally, the State proved that ashes of burned paper were found on defendant Fowler's farm as a spot about where the accomplices confessed that, after dividing the money, the group had burned the papers which were in the safe.

In addition, when the defendants were formally confronted by the implicating statements of the accomplices, the record shows that they hung their heads and made no audible response. In Alexander v. State, 190 Tenn. 260, 267, 229 S.W.2d 331 (1949), this Court, faced with a similar question in a prosecution for breaking and entering, held that when defendant was confronted with accomplices and their written confessions were read to him, and he replied that he had nothing to say, and that he knew where the stolen clothes were, his actions were admissible for the purpose of corroborating the testimony of one of the alleged accomplices. See also, Winfree v. State, 174 Tenn. 72, 74, 123 S.W.2d 827 (1937).

Furthermore, this Court held in the case of Winfree v. State, supra, that slight circumstances may be sufficient to furnish the necessary corroboration of an accomplice. In the present case, the circumstances, in addition to the proven facts, are more than slight. Therefore, although they are admitted accomplices in the larceny, we think that the testimony of the Lowery brothers is sufficiently corroborated to support the conviction.

Moreover, in considering these assignments of error, we are met by a verdict of guilt which, according to a long line of decisions, displaces the presumption of the defendants' innocence,...