Van Zandt v. State

• Decision Date: 02 March 1966
• Citation: 402 S.W.2d 130,22 McCanless 187,218 Tenn. 187
• Parties: , 218 Tenn. 187 Davis VAN ZANDT, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error (two cases).
• Court: Tennessee Supreme Court

Page 130

402 S.W.2d 130

22 McCanless 187, 218 Tenn. 187

Davis VAN ZANDT, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error (two cases).

Supreme Court of Tennessee.

March 2, 1966.

Rehearing Denied April 22, 1966.

Joseph J. Levitt, Jr., Knoxville, Broughton & Broughton, Knoxville, of counsel, for plaintiff in error.

George F McCanless, Atty. Gen., and William H. Lassiter, Jr., Asst. Gen., Nashville, for defendant in error.

WHITE, Justice.

Upon presentation of the assignments of error and argument in support thereof at the bar of the Court, counsel for Van Zandt stated that these two cases could be disposed of in one opinion, which we now proceed to do.

In each case the plaintiff in error was indicted on January 22, 1965, in a three-count indictment, charging burglary, larceny, and receiving and concealing a coin telephone. In Case No. 55, the coin telephone was allegedly taken from the Manor Apartments, located at 107 Evergreen Lane, Knoxville, Tennessee, and in Case No. 58, the telephone was allegedly taken from 224 State Street, Knoxville, Tennessee. In Case No. 55 the plaintiff in error was convicted of petit larceny and sentenced to serve six months in the Knox County Workhouse. In Case No. 58, he was convicted of petit larceny and sentenced to serve eleven months and twenty-nine days in the Knox County Workhouse.

In each case the motion for a new trial was overruled and an appeal has been perfected to this Court, in which the assignments of error are exactly the same, to-wit:

The Court erred in permitting the introduction into evidence of the written statement of confession or admission against interest taken by the witness, C. W. Swift, on or about October 15, 1964, because said statement was taken in violation of the defendant's rights under the United States Constitution, including but not limited to the Fifth, Sixth and Fourteenth Amendments, and taken also in violation of his rights under the Constitution of the State of Tennessee.

There is no proof of the corpus delicti.

There was no material evidence introduced upon the trial of the cause to support the verdict of the jury.

The evidence preponderates against the verdict and in favor of the innocence of the defendant, Davis Van Zandt.

The Court erred in admitting into evidence a pay telephone, said telephone not having been properly identified as having anything whatsoever to do with the case on trial.

The State, in its brief, has correctly summarized the assignments of error in the following language: (1) the evidence preponderates against the verdict and in favor of the innocence of the defendant, in that there is no competent evidence in the record to show that the defendant committed the crime of petit larceny; (2) the court erred in permitting the State to introduce into evidence a written confession of the defendant because said confession was taken in violation of the defendant's constitutional right in that he was not afforded counsel prior to the soliciting of his confession; (3) there is no proof of Corpus delicti; (4) the court erred in admitting into evidence a coin telephone on the ground that the telephone was not properly identified as the one which was allegedly stolen from the Southern Bell Telephone Company.

In Case No. 55 the State contends that the defendant, along with some others, ripped a telephone from the wall of an apartment house known as the Manor Apartments in Knoxville, took the money out of it, and threw it into a lake.

C. W. Swift, Security Supervisor of the Eastern Division of Southern Bell Telephone Company, testified that pursuant to his investigation of the theft of a company telephone located in the Manor Apartments, he, along with an associate, went to the Anderson County Jail, on October 15, 1964, where the defendant was being held by the Sheriff and talked with him. The defendant gave him a statement and upon the introduction of such statement being offered into evidence, the trial judge very properly excused the jury and heard the testimony to determine its admissibility.

In the absence of the jury, Swift testified that prior to asking the defendant any questions, he told him that he did not have to talk to him; that he could remain silent; and that any statement that he made could be used as evidence against him in a court of law. He said the defendant never requested permission to see an attorney and that the defendant freely and voluntarily gave him a statement.

Van Zandt testified, in the absence of the jury, that he was arrested in Anderson County, on October 12, 1964, and that on the following morning he was interrogated by the Sheriff for two or three hours; that during this interrogation he told the Sheriff that he would like to have a lawyer; and that the Sheriff replied: 'If I knew one I could call.' Van Zandt also testified that the Sheriff gave him permission to call his people when it appeared that he did not know any lawyer.

Van Zandt said further that he had never been threatened by anybody prior to giving the statement to Mr. Swift. He said, however, that the Sheriff told him when he was trying to get him to confess that if he would cooperate the Sheriff would do all that he could to help him. The defendant also testified that on several days following his arrest he was questioned by law officers from four different counties.

The trial court, after hearing this evidence and examining the written statement given to Swift, held that it was voluntarily given and that the defendant had not been denied right to counsel. He, therefore, permitted the introduction of the written confession but in so doing excluded certain parts of the confession which dealt only with the indictment in Case No. 58.

In the confession Van Zandt said that about three or four weeks prior to his arrest, he and some others whom he would not identify ripped coin telephones from five apartment houses in Knoxville. He said that the coin telephones were taken during the early morning hours between 1:00 A.M. and 5:00 A.M., and he admitted that he ripped a coin telephone from the wall at the Manor Apartments in the Fountain City area of Knox County.

Swift said that the defendant told him that after the telephone had been opened and the coins removed therefrom, he had thrown the telephone into a lake off North Shore Drive in Knoxville. Swift checked the lake but was unable to find the telephone. He later found it in possession of the Sheriff of Knox County, where he examined it.

Swift testified that the particular coin telephone taken from Manor Apartments had a serial and lock number and that the company had a record of each of these numbers.

He said that the company possessed a separate key which would open each coin telephone and that there was no master key to the cash compartment. He said that the telephone which was missing from the Manor Apartments had a key number E--60841, and that he had a key whose serial number matched the E--60841. Upon being shown a coin telephone the same was identified by Mr. Swift by its serial number as the one missing from the Manor Apartments. He inserted the key into the coin telephone which came from the company and it opened the cash compartment readily. He also called attention to the fact that the number on the key was the same number as that on the telephone. He placed a value of $75.00 on the coin telephone taken from the Manor Apartments.

On cross-examination, Mr. Swift admitted that he had never been in the Manor Apartments and had never examined the wall where the coin telephone had allegedly been located. He admitted that his only knwledge of the location of the telephone and the fact that it was missing was based upon the records of the Southern Bell Telephone and Telegraph Company.

John Maples, a detective with the Knox County Sheriff's Office, testified that as a result of a radio call he went to the lake off North Shore Drive in Knox County about the middle of October, 1964, where he found a telephone, which was made an exhibit to his testimony. He testified that he tagged the telephone and took it to the County Jail where it remained until Mr. Swift inspected it and then it remained in his custody until the date of the trial.

It is the contention of Van Zandt here that the statement taken from him by Swift was in violation of his constitutional rights and, therefore, should have been excluded on two grounds; first, the State failed to provide the defendant with counsel prior to his confession, and, second, the defendant was denied his right to be taken before a magistrate promptly upon arrest.

The record shows that this statement was not taken by the State, or any agency thereof, but was taken by an employee of the telephone company. The evidence shows that Van Zandt had been in jail for about three days prior to giving this written statement to Mr. Swift. During this interval the Sheriff had questioned him on several occasions, but there is no claim of any harsh or coercive treatment on the part of the Sheriff, and, as a matter of fact, since he did not confess to the Sheriff and his confession is not before the Court through the testimony of the Sheriff, we do not see how there can be any justifiable complaint against the Sheriff or any of his activity in connection with this case.

Van Zandt did say that he told the Sheriff on several occasions that he would like to have a lawyer and when asked what reply the Sheriff made to this request, he said:

A. Well, he told me if I knew one I could call, which I didn't, I could call one, but I didn't call, he told me I could call my people, so I did that.

Q. Did you tell him anything about your financial condition?

A. Yes, sir.

Q. Did you tell him anything about your financial sitution relative to your ability to hire a lawyer?

A. Well, I mentioned that my mother would not be able to hire a lawyer because she was sending my brother and sister both to school, and that I wouldn't have any way...