Taylor v. State

• Decision Date: 18 December 1972
• Parties: Ned TAYLOR, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 477

493 S.W.2d 477

Ned TAYLOR, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

Dec. 18, 1972.

Certiorari Denied by Supreme Court March 19, 1973.

Thomas A. Buford, Memphis, for plaintiff in error.

David M. Pack, Atty. Gen., and Robert H. Roberts, Asst. Atty. Gen., Nashville, Don Dino, Asst. Dist. Atty. Gen., Memphis, for defendant in error.

OPINION

DWYER, Judge.

Defendant Ned Taylor at a joint trial of three defendants, was convicted by a jury for committing the offense of receiving stolen property over the value of one hundred dollars with resulting confinement and judgment entered thereon for not less than three nor more than five years.

The evidence from our review reflects a codefendant J. C. Nathan, Jr., was tried at the joint trial on a guilty plea and was convicted by the jury of committing the offense of grand larceny with resulting punishment of confinement for not more than three years. He did not appeal.

Codefendant A. L. Townsend was acquitted when at the close of the State's proof the learned trial court on motion by retained counsel directed the jury to return a verdict of not guilty.

The evidence reflects that the Sam Shainberg Company in Memphis had hired the Mark Lipman Industrial Investigation firm to make an outside investigation of their company. No reason is advanced in the State's proof for this investigation other than an inference that the company suspected shortages in their stock. At any rate the outside agent cultivated an acquaintanceship with the defendant Taylor on the instructions of his company. The supervisor of the investigation was notified by the agent that the agent was to make a purchase from Taylor on April 22, 1970, at Taylor's home in south Memphis. The supervisor observed on the evening of that date that his agent and the defendant came from inside defendant's home and placed a large cardboard box in the trunk of the agent's car. He and the agent met a few blocks removed from defendant's home and opened the box and found that it was full of men's trousers, seventy-two in number. The agent related he had paid the defendant one hundred and twenty-five dollars for the box of pants. An official of the Shainberg Company identified the pants as the company's property by comparison of the label on the box with the invoice records of the company. He estimated their purchase price was $225. We are from our review statified that the box of pants recovered was the property of Shainberg's.

The proof reflects that the codefendant Nathan who was an employee at Shainberg's helped remove a box of pants from the warehouse to the loading dock on April 21. He was paid thirty-six dollars for his services. At the trial his confession to the investigation supervisor implicating Taylor and Townsend by name was objected to and a hearing was held out of the presence of the jury. The learned trial court ordered all references to the codefendants Taylor and Townsend to be omitted from the statement of Nathan. The statement was then introduced into evidence against Nathan. This is a basis for one of the assignments of error and will be dealt with later in this opinion.

The defendant did not testify and the State's proof reflects he denied any knowledge of the transaction.

Defendant first contends that the evidence is insufficient in that no theft was proven and the offense as set forth in the indictment did not occur in Shelby County.

The defendant cites Deerfield v. State, 220 Tenn. 546, 420 S.W.2d 649; Kessler v. State, 220 Tenn. 82, 414 S.W.2d 115; and Franklin v. State, 202 Tenn. 666, 308 S.W.2d 417. However, these cases are not dispositive of the issues under the facts found in this record. Deerfield v. State, supra, teaches that Deerfield, under the peculiar facts of that case, was either guilty of the larceny or guilty of nothing. See Tackett v. State, 223 Tenn. 176, 178, 443 S.W.2d 450. In Kessler v. State, supra, the facts failed to show that Kessler received the drugs in Tennessee knowing them to have been stolen. In Franklin v. State, supra, again the only proof in the record pertained to whether Franklin was the thief, and not to his receipt of the goods from another. In the case at hand Taylor stands convicted of a substantive felony, receiving stolen property, separate and distinct from the felony of stealing property. See T.C.A. § 39--4217 and Wright v. State, 2 Tenn.Crim.App. 95, 99, 451 S.W.2d 707, 709. The essential elements of the offense of receiving stolen property are: (1) the receiving with guilty knowledge, that is, knowing it to have been stolen, and (2) the intent to deprive the true owner. See Rice v. State, 50 Tenn. 215, 226. To determine if the guilty knowledge is present we follow in this State the objective test rule. See Wright v. State, 13 Tenn. 154, restated in Wharton's Criminal Law and Procedure, Vol. 2, p. 281, § 568, and repeated in Tackett v. State, supra:

'That is, the existence of guilty knowledge is to be regarded as established when the circumstances surrounding the receipt of the property were such as would charge a reasonable man with notice or knowledge or would put a reasonable man upon inquiry which if pursued would disclose that conclusion.'

Now applying the foregoing to the uncontested facts in this record, the jury had before it: (1) the pants were the property of Shainberg and missing; (2) they cost Shainberg $225; (3) they were in the exclusive possession of the defendant; (4) they were in an unopened box; (5) the label number of this box corresponded with Shainberg's purchase order reflecting 72 pants; (6) there were 72 pants in the box; (7) the defendant sold the box to the agent for $125, much below the true value of the 72 pants; and (8) there is no proof in this record that defendant had an authority to sell these pants, or any explanation of how he obtained their possession. We think applying the objective test rule that these circumstances fully support the verdict as returned. From the very nature of these goods, and the low price for which they were sold, the jury could and presumably did from these circumstances infer that the defendant received the goods knowing them to have been stolen and sold them, thereby supplying the requisite intent to deprive the true owner. All of the circumstances referred to above occurred in south Memphis. We can take judicial knowledge that south Memphis is in Shelby County. See Hopson v. State, 201 Tenn. 337, 343, 299 S.W.2d 11. Further, this proof includes circumstances from which the...