State v. Gautney

• Decision Date: 17 July 1980
• Docket Number: No. 5,5
• Parties: STATE of Tennessee, Appellee, v. William Oliver GAUTNEY, Jr., Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 907

607 S.W.2d 907

STATE of Tennessee, Appellee, v. William Oliver GAUTNEY, Jr., Appellant.

No. 5

Court of Criminal Appeals of Tennessee, at Jackson.

July 17, 1980.

William M. Leech, Jr., Atty. Gen., Nashville, Jerry L. Smith, Asst. Atty. Gen., Nashville, Robert B. Smith, Asst. Dist. Atty. Gen., Savannah, for appellee.

W. Lee Lackey, Savannah, W. A. Barnett, Florence, Ala., for appellant.

OPINION

WALKER, Presiding Judge.

In a four-count indictment, the Hardin County grand jury charged the appellant, William Oliver Gautney, Jr., with grand larceny, receiving and concealing stolen property and second degree burglary. At his trial the court withdrew from the jury's consideration the counts on receiving and concealing stolen property. The jury found Gautney guilty of petit larceny and fixed his punishment at not less than one nor more than two years in the penitentiary. The trial judge denied Gautney's petition for a suspended sentence. He appeals both his conviction and the denial of probation.

In the appellant's first issue presented for review, he attacks the sufficiency of the convicting evidence. The state's proof, which the jury accredited, showed that on December 27, 1978, between 7:00 a. m. and 4:00 p. m., the home of John D. Tune in Hardin County was burglarized. The glass on the front door was broken, the house was ransacked, the telephone was torn off the wall, and several items were taken including a Savage over and under .22-. 410 rifle-shotgun and an adding machine. The .22-.410 was valued at around $75 and the adding machine was valued at around $40. On a bed in one of the rooms several small spots of what appeared to be blood were found. Mr. Tune inferred that the burglary occurred between 10:00 a. m. and 1:00 p. m. because at 10:00 a. m. his sister-in-law called his house and his telephone rang and at 1:00 p. m. she called and received a busy signal. He thought the busy signal indicated that the telephone had been torn from the wall.

The state's proof also showed that on the night of December 27, 1978, with the appellant's consent, the appellant's mobile home in Florence, Alabama, was searched by a patrolman from the Lauderdale County, Alabama, sheriff's department. The search was conducted on an unrelated case for which no incriminating evidence was discovered. However, during the course of the search, the patrolman noticed a .22-.410 rifle-shotgun and an adding machine hidden underneath a couch. The next day when the Hardin County, Tennessee, sheriff's department reported to the Lauderdale County sheriff's department a description of the items taken in the burglary of Mr. Tune's home, the patrolman returned to the appellant's mobile home and seized the .22-.410 rifle-shotgun. Later, the appellant surrendered the adding machine. Both the rifle-shotgun and the adding machine were identified as having been taken in the burglary. When appellant was interviewed on January 2, 1979, he had a small cut on his right wrist.

The appellant testified denying that he had burglarized Mr. Tune's home. He stated that on December 27, 1978, he worked at a construction site in Florence, Alabama, from 8:00 a. m. to 5:00 p. m. He further testified that when he returned home from work a man whom he knew only as "Little Boy Ivey" came to his mobile home and sold him two guns and an adding machine for $48. The appellant also testified that he had cut his arm while at work. Appellant's employer testified that he drove the appellant to and from work on December 27, 1978, and that appellant worked nine and one-half hours that day.

Proof of possession of recently stolen goods, if not satisfactorily explained, gives rise to the inference that the possessor has stolen them. Bush v. State, 541 S.W.2d 391 (Tenn.1976). Whether the defendant satisfactorily explains his possession of recently stolen property is a question for the jury. Bush v. State, supra; State v. Rice, 490 S.W.2d 516 (Tenn.1973); Ware v. State, 565 S.W.2d 906 (Tenn.Cr.App.1978); Smith v. State, 2 Tenn.Cr.App. 117, 451 S.W.2d 716 (1969). Likewise the question of alibi is also for the jury's determination. Smith v. State, 566 S.W.2d 553 (Tenn.Cr.App.1978); Prigmore v. State, 565 S.W.2d 897 (Tenn.Cr.App.1977). The jury did not believe the appellant's explanation of his possession of the property or his alibi defense. Under this evidence, it was warranted in returning a verdict of guilty of petit larceny. The jury by its verdict has resolved all conflicts in the state's favor. Yearwood v. State, 2 Tenn.Cr.App. 552, 455 S.W.2d 612 (1970). We find sufficient evidence to justify a rational trier of fact in finding appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This issue is without merit.

Next, the appellant contends that the jury's verdict finding him guilty of petit larceny and not guilty of the burglary is so inconsistent as to require reversal. However, there is no requirement under Tennessee law that a verdict on a multiple count indictment be consistent as to each count, because each count is considered a separate indictment. Wiggins v. State, 498 S.W.2d 92 (Tenn.1973). This issue is without merit.

Next, the appellant claims that the indictment against him is defective in that it was not signed by the regular foreman of the Hardin County grand jury but by an illegally appointed substitute foreman. The appellant contends that on June 20, 1977, Joe B. Pitts was duly appointed for a two year term as foreman of the grand jury. However, appellant's indictment, which was returned on March 19, 1979, was signed by Thelma S. Carrol, as foreman. The record reveals that Ms. Carrol was appointed foreman due to Mr. Pitts' absence from the court. The appellant now claims that Mr. Pitts' removal was without good cause as required by Rule 6(g), Tenn.R.Crim.P., and, thus, Ms. Carrol was improperly appointed as foreman. We feel that Mr. Pitts' absence was good cause for his removal, relief or excuse from office. cf. State v. Collins, 65...