State v. Smith

• Decision Date: 25 November 1980
• Docket Number: No. 79-75-III,79-75-III
• Parties: STATE of Tennessee, Appellee, v. Edward D. SMITH and Virgil Denny Barnes, Appellants.
• Court: Tennessee Court of Criminal Appeals

Page 493

612 S.W.2d 493

STATE of Tennessee, Appellee, v. Edward D. SMITH and Virgil Denny Barnes, Appellants.

No. 79-75-III

Court of Criminal Appeals of Tennessee, at Nashville.

Nov. 25, 1980.

Permission to Appeal Denied by Supreme Court Feb. 23, 1981.

Ramon Womack, Nashville, for appellant, Smith, at trial only.

Dale Quillen, Nashville, for appellant, Smith, on appeal only, and for the appellant, Barnes, at trial and on appeal.

Lucinda Smith, Nashville, for appellants, Smith and Barnes, on appeal only.

William M. Leech, Jr., Atty. Gen., Jerry L. Smith, Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., David L. Raybin, Asst. Dist. Atty. Gen., J. P. Apel, Asst. Dist. Atty. Gen., Nashville, for appellee.

OPINION

SCOTT, Judge.

On February 28, 1977, Mr. William A. Cobb, owner of I-65 Liquors, upon arrival at his store, discovered that it had been burglarized. All of the liquor from his store rooms, valued at approximately $12,000.00, was missing, along with the money from the cash drawer. Mr. Cobb called the Metropolitan Police Department and officers responded.

While the police were investigating the theft, a store employee, Kathy Woodward, suggested that they call the appellant, Mr. Barnes, to get his assistance in the investigation. Mr. Barnes was an employee of Westinghouse Credit Corporation, charged with the duty of repossessing merchandise. Apparently, Ms. Woodward thought that he was a detective and that he would be more able to recover the liquor than the police would be.

Mr. Barnes came to the store, examined the scene of the burglary and talked with Mr. and Mrs. Cobb and Ms. Woodward. Strangely, he inquired of Ms. Woodward whether the Cobbs had any money.

At about 6:30 P.M. that night, Mr. Cobb received an anonymous telephone call from a person who said that they had, "a whole house full of whiskey" and offered to return it to Mr. Cobb for a price. Mr. Cobb offered $3,000.00. The caller stated that they would call back at 11:30 or 12:00 the next day, and warned Mr. Cobb that someone would get killed if he brought the police into their dealings.

In spite of the threat, Mr. Cobb notified the police, went to the bank and withdrew $3,000.00 in cash, with the serial numbers recorded in advance by the bank. The money was in three packets of ten $100.00 bills per packet. He then substituted one dollar bills for all except the top bill in each packet, making the actual total $327.00. The money was placed inside three bags.

At about 5:30 P.M. on March 1, 1977, Mr. Cobb received another telephone call in which he was instructed to put the money in a hole in the back wall at the Sears Roebuck parking lot on Lafayette Street in Nashville, two or three blocks from the liquor store. Mr. Cobb, in the company of a detective posing as a nephew, complied. Police officers kept the ransom money under surveillance. Nobody came for the money, so, at 9:00 P.M. the officers told Mr. Cobb to go back and get his money. He did so.

The next day, March 2, 1977, the appellant, Mr. Barnes, again came to the liquor store at 2:30 P.M. and again at 4 or 5:00 P.M. He inquired about the progress of the investigation. Mr. Cobb told him that the police wanted him to stay out of it.

At 6:13 P.M. that night, another anonymous telephone call was received. Mrs. Cobb answered the telephone and she was instructed to make another drop at the wall. The calling party did not hang up the telephone, but held the circuit open so that Mr. and Mrs. Cobb could not call the police. However, he sent a friend to the telephone booth across the street. The friend notified the police. Earlier, South Central Bell Telephone Company had placed line identification equipment on the liquor store telephone and the call was traced to a pay telephone at Sears' Lafayette Street store.

Within fifteen minutes after the call was received, Mr. Cobb made the second drop of the money at the wall at Sears. In response to Mr. Cobb's friend's telephone call, police officers resumed the stake-out at the Sears parking lot. About two minutes after the stake-out detective arrived, he saw a car slowly driving beside the wall. The passenger got out of the car, went to the wall, got something, and returned to the car. The detective radioed uniformed officers in a marked car who were specifically patrolling the area to help with this case. They spotted the car as it was leaving the Sears parking lot going East toward the store and I-65. They spotted the car with their blue lights. The appellant, Mr. Barnes, was the driver and the appellant, Mr. Smith, was the passenger. Mr. Smith, a deputy sheriff, got out of the car as soon as it was stopped, held up the money, which he had already removed from the bags and said, "I got the old man's money back".

The police officers then went back to the liquor store and inquired of Mr. Cobb as to whether he had given anyone the authority to remove the money from the wall. Being assured that he had not, the appellants were placed under arrest.

Their indictment and trial followed. They were found guilty of obtaining money under false pretenses in violation of TCA, § 39-1901, and both were sentenced to not less than nor more than three years in the state penitentiary. This appeal ensued.

They have presented three issues for review.

First, they have launched a broadside attack on the indictment, contending that (1) it failed to give them notice of the offense with which they were charged; (2) it failed to allege the elements of the offense of obtaining money by false pretenses as set forth in TCA, § 39-1901; and, finally, that the indictment failed to allege which of the appellants committed the criminal act. All of these issues are meritless.

The indictment in this case, after the standard introductory language charged:

That Edward D. Smith and Virgil Denny Barnes, Jr. of said County, heretofore, to wit, on the day of February, 1977/and prior to the return of this indictment with force and arms, in the County aforesaid, unlawfully, feloniously and fraudulently, and with the felonious intent to defraud William and Loretta Cobb, d/b/a I-65 Liquors, did obtain from William and Loretta Cobb, d/b/a I-65 Liquors, $324.00 in good and lawful currency of the United States of America the property of William and Loretta Cobb, d/b/a I-65 Liquors, by means of a certain false pretense then and there made by the said defendants Edward D. Smith and Virgil Denny Barnes, Jr. to the said victims William and Loretta Cobb, d/b/a I-65 Liquors, whereby the said defendants Edward D. Smith and Virgil Denny Barnes, Jr., knowing that a large quantity of intoxicating liquors had been stolen from the said victims William and Loretta Cobb, d/b/a I-65 Liquors, during a burglary thereof, falsely and fraudulently represented to said victims by means of anonymous telephone calls that said large quantity of liquor would be returned to said victims for a cash payment of $3,000.00 and in said calls a specific location was given said victims as to where they should deliver said sum of $3,000.00, which representation that the liquor described aforesaid would be returned was false and untrue and was made by the said defendants Edward D. Smith and Virgil Denny Barnes, Jr. with the fraudulent and felonious intent to deprive William and Loretta Cobb, d/b/a I-65 Liquors, of their personal property and thereby caused the said victims William and Loretta Cobb, d/b/a I-65 Liquors, to rely on said...