Taylor v. State

• Decision Date: 15 January 1970
• Parties: Wilmon TAYLOR, Jr., George Willie Johnson, Mancie Walker, Jr., and Ralph Donald Smith, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 168

455 S.W.2d 168

2 Tenn.Crim.App. 459

Wilmon TAYLOR, Jr., George Willie Johnson, Mancie Walker, Jr., and Ralph Donald Smith, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

Jan. 15, 1970.

Certiorari Denied by Supreme Court May 18, 1970.

James A. Hopper, Savannah, for plaintiffs in error.

David M. Pack, Atty. Gen., Robert H. Roberts, Asst. Atty. Gen., Nashville, Robert B. Smith, Asst. Dist. Atty. Gen., Savannah, for defendant in error.

OPINION

DWYER, Judge.

From a conviction of burglary in the third degree with punishment fixed at confinement for not more than five years in the State Penitentiary, Wilmon Taylor, Jr., George Willie Johnson, Mancie Walker, Jr., and Ralph Donald Smith appeal from the jury verdict in the Circuit Court of Hardin County.

The facts are briefly summarized in order to properly evaluate the assignments of error. Raymond Whitlow owned and operated a grocery business in Hardin County, Tennessee. In the early morning hours of June 15, 1968, while eating breakfast he noticed a red car leave his store which is located 200 yards from his home. In a few minutes the same car returned to the store and he noticed three colored men come from the store, get into the car and head toward Savannah, Tennessee. He told his son to call the police, then he examined his store and found that it had been burglarized. His son got into his car and started looking for the red convertible Pontiac with the defendants in it. He observed the car and followed it, noticing the occupants. He stopped in a service station and gave a description of the car by telephone to the police, with the license number. As a result of this a broadcast was put out and the red convertible was stopped by the Chief of Police of Selmer, Tennessee. The Chief of Police placed all four defendants under arrest and saw a sack containing cigarettes and a .22 boltaction rifle with the bolt missing on the floorboard of the car. He impounded these articles. The rifle was identified by Mr. Whitlow as being his property and as being missing as a result of the burglary. All four defendants testified and denied burglarizing the store and denied any knowledge of the burglary. They all four related they were from Indianapolis and had come to Jackson, Tennessee, for a visit and were on their way to Giles County to visit a friend. They all denied knowing anything about the stolen rifle being found in the car. There were also a couple of shotguns taken from the store found in the car, but on motion of the defense the court excluded these guns and ordered the jury not to consider them for any purpose. The defendants were represented at the trial by privately retained counsel, who is now deceased. They are presently represented by court-appointed counsel.

Defendants assign as error there is no proof to support the verdict and the greater weight of the evidence preponderates against the verdict of guilty and in favor of their innocence. These defendants were apprehended shortly after a report of the burglary had been made. At the time of apprehension the rifle belonging to Mr. Whitlow was found in the car in which the defendants were arrested. This evidence clearly shows that the car and occupants were the ones seen by Mr. Whitlow. He testified he saw three Negroes coming from the store and then get into the red convertible and leave. All four defendants testified and disclaimed any knowledge whatsoever of how the stolen rifle got into the car. Where the issues of fact are presented it is within the province of the jury to decide the question, which they have done adversely to the defendants in this record.

In recent decisions of the Supreme Court and this court the rule has been restated that the verdict of the jury, when approved by the trial judge, accredits the testimony of the State and resolves all conflicts in favor of the theory of the State. Such a verdict has displaced the presumption of innocence and has created a presumption of guilt. Here the accused has the burden of showing that the evidence preponderates against the verdict and in favor of his innocence. Bacon v. State, 215 Tenn. 268, 385 S.W.2d 107; Schweizer v. State, 217 Tenn. 569, 399 S.W.2d 743; Bolin v. State, 219 Tenn. 4, 405 S.W.2d 768. This has not been done. The assignments of error are overruled.

Defendants' next assignments pertain to the court not directing a verdict of not guilty on motion being made at the conclusion of the State's proof and at the conclusion of all of the proof. T.C.A. Sec. 40--2529 provides:

'40--2529. Directed verdict.--In a criminal prosecution the trial judge shall direct the jury to acquit the defendant if at the close of the evidence for the prosecution, or at the close of all the evidence, The court is of the opinion that the evidence is insufficient to warrant a conviction. (Acts 1968 (Adj.S.) ch. 437, § 1).' (emphasis added)

Obviously, since the evidence does not preponderate against the verdict of guilt, there is ample evidence to support the verdict and the trial judge should not have directed a verdict of acquittal. Therefore, these assignments of error are overruled.

Defendants next assign as error that there is a variance between the proof and the indictment pertaining to the ownership of the store. Defendants maintain there is no proof of an agreement between Mr. Whitlow, occupier of the store burglarized, and his mother, who was the owner of the building. They contend that because of the lack of showing of an agreement then there is a variance between the proof and the indictment. The indictment alleges:

'* * * entering the business house of Raymond Whitlow, dba Whitlow's Grocery with intent unlawfully, feloniously and burglariously to take, steal and carry way the personal property therein contained, the proper goods and chattels of Raymond Whitlow against the peace and dignity of the State of Tennessee.'

In Hindman v. State, 215 Tenn. 127, 384 S.W.2d 18, the following language may be found:

'It seems logical, reasonable and right to us to say that ownership need not be alleged when the statute, as our statute § 39--904, T.C.A., makes the offense charged one against the occupant of the building rather than the owner. The name of the occupant is sufficient, and this statute does not so say that it may be either one or the other, but, since all that is required to be proven under this statute is the entering of a business house with a felonious intent, it is clearly a sufficient averment to name the occupant or the one in lawful possession, and the proof meets this requirement in the...