White v. State

• Decision Date: 04 April 1962
• Citation: 210 Tenn. 78,14 McCanless 78,356 S.W.2d 411
• Parties: , 210 Tenn. 78 Ophis Larry WHITE and Dorothy Mal York, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Supreme Court

Page 411

356 S.W.2d 411

14 McCanless 78, 210 Tenn. 78

Ophis Larry WHITE and Dorothy Mal York, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.

Supreme Court of Tennessee.

April 4, 1962.

William C. Wilson, Nashville, for plaintiffs in error.

George F. McCanless, Atty. Gen., Walker T. Tipton, Asst. Atty. Gen., Nashville, for the State.

WHITE, Justice.

The plaintiff-in-error White was convicted of grand larceny and sentenced to serve not more than seven years in the State Penitentiary, and the plaintiff-in-error York was convicted upon the same indictment and trial of feloniously receiving and concealing stolen property and sentenced to serve six months in the Davidson County Workhouse and to pay a fine in the amount of $50.00.

The motion for a new trial was seasonably made and overruled and now this case is before this Court on an appeal assigning several errors. The record discloses:

That Mr. A. E. McConnell owned and operated a Pie Bakery at 502 Main Street, Nashville, Tennessee, and that in April of 1961 said place of business was burglarized; the door of the large safe was torn loose from its hinges; more than $1600.00 in cash and $1500.00 in checks removed; a .22 caliber target pistol and a sack of old money containing somewhere in the neighborhood of thirty pieces were all missing from the safe. This witness described the old money as being two one-dollar gold pieces, a number of flying eagle pennies, a trade dollar, a form of old U.S. currency, according to the witness, and some other items. He identified the pistol as being his by showing that he kept the serial number in a book at his Bakery, and that the serial number corresponded with the serial number on the pistol introduced in open Court which had been taken from the room occupied by the defendants, as indicated hereafter. The witness also identified some one dollar bills as having been taken from his place of business as the same dollar bills that were recovered from these defendants or from their possession. For instance, one of the bills had the name of Theodore Roosevelt written on it and according to the witness he purchased this dollar bill during World War II. He also made positive identification of some of the other money because of writing upon it or because of some peculiar marking. The witness also identified some of the pennies and particularly a penny that had written upon it the Lord's Prayer, and he also identified the trade dollar as well as two one-dollar gold pieces, which gold pieces the witness testified he had had in his possession for more than ten years.

Mr. McConnell testified that the safe had been damaged to the extent of approximately $200.00, and that his building had been damaged to the extent of about $1500.00 by the burglars in gaining entrance thereto.

After the burglary had been committed the police of the City of Nashville were notified and detectives Lillie and Burris were assigned the job of apprehending the person or persons who had committed the burglary. These same detectives were also assigned the job of investigating another burglary at a local restaurant from which an entire safe had been removed. While conducting their preliminary investigation of the burglary committed at the restaurant these officers contacted a fellow officer who had located the safe taken from the restaurant. This officer also informed these detectives that he had received information that the defendant White had been in the vicinity of McConnell Pie Company on the night that it was burglarized and he was being sought in connection therewith.

While they were investigating the burglary at the McConnell Pie Company one of these detectives received word from Sergeant Smith of the Nashville Police Department that he had received information that the defendant White was at a Motel on Dickerson Road in Davidson County, Tennessee. All of these officers went directly to the Motel where they met and waited while Sergeant Smith knocked on the door of the cabin where the defendants were and informed them that he was Sergeant Morgan Smith of the Nashville Police Department, and requested them to open the door. Upon their failure to do so within a reasonable time, the Sergeant kicked the door open and entered the room.

When the officers entered the room they found the defendant White on the floor in the bathroom reaching through a hole in the bathroom floor, and the defendant York was in bed. Upon being removed from the bathroom one of the officers reached through the hole in the floor thereof and found a paper cup containing some old money. This old money was the same money identified by the prosecutor as having been removed from his place of business on the night that it was burglarized.

After the officers found this old money, they searched the remainder of the room where the defendants had been sleeping and found all of the property taken from the Pie Company's safe, about one-half of the money being found on the defendant White's person or in his possession and the other half in an overnight case belonging to the defendant York, and the .22 caliber pistol was discovered under the mattress on the bed where the defendants had been sleeping.

The defendant, Dorothy Mai York, testified that she and the defendant, Ophis Larry White, had registered at said Motel as man and wife and had remained there for some three days prior to their arrest. She admitted that she had been a prostitute and that for about two and one-half years she had been keeping company with the defendant White, that she knew his general reputation and knew that he was referred to as a safe burglar and a thief.

The defendant White admitted that he had been convicted and had served time in the State Penitentiary for burglary, but he denied committing burglary at any other time. However, he did admit the possession of burglary tools in Davidson County in May or June of 1961. The admitted that he had been out of employment for about one month before the trial of this case and that during the same period of time he had paid $900.00 to Bonding Companies to make bond for him upon criminal charges. He stated that he drew $60.00 per month for going to school under a Government sponsored bill for Ex-soldiers and that he drew $30.00 per month for a service connected disability, or a total of $90.00 per month, being all of his normal income.

When these defendants were arrested in the motel room all of the money exhibited on the trial of the case was found either in the possession of the defendant White or in an overnight bag belonging to the defendant York or lying loose on top of the dresser located in the room, and the pistol was found under the mattress of the bed on which the parties had been sleeping. When asked by the officers where the money had come from, the defendant White claimed that he had won it gambling. These defendants also told the officers that they had checked into the motel room on the morning of their arrest. However, they testified in Court that they had been staying in this particular motel for a period of several days, and were registered in the room as man and wife three days prior to their arrest.

During the course of the investigation by the detectives Burris and Lillie, they met a patrolman by the name of McWright and he advised them that he had found the safe taken from the restaurant, and then all three of these officers met at the McConnell Pie Company's place of business where McWright gave to his two fellow officers two pictures, one of them being of the defendant White and the other was a man by the name of Barnes, who incidentally had been sent to the penitentiary on the day before the trial of the case at bar. McWright stated to the officers that he had seen White in that vicinity; that is, the vicinity of the McConnell Pie Company on the night that it was burglarized. During the day these detectives received a call from Sergeant Smith asking them to meet him at the Motel where these defendants were apprehended.

The first eight Assignments of Error complain either that the evidence is insufficient upon which to base verdicts of guilty, or that the search conducted by the investigating and arresting officers was unlawful and, therefore, all evidence obtained as a result of such search should be suppressed.

It is a well settled rule that this Court will not reverse a criminal case on the facts unless it is shown that the evidence preponderates against the verdict and in favor of the innocence of the accused.

The verdict of the jury, approved by the Trial Judge, accredited the testimony of the witnesses for the State, and established their creditability. Such verdict also displaced the presumption of defendants' innocence, raised a presumption of their guilt, and put upon them here the burden of showing that the evidence preponderates against the verdict and in favor of their innocence. Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385.

We think the recitation of the facts gathered from the record demonstrate that the evidence does not preponderate against the verdict of guilt and in favor of the innocence of the accused. It also demonstrates that the defendants have not displaced the presumption of their guilt and they have not carried the burden of showing that the preponderant evidence is against the verdict and in favor of their innocence.

Section 40-803 T.C.A. provides that an arrest may be made without a warrant in the following manner 'An officer may, without a warrant, arrest a person:

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'(2) When the person has committed a felony, though not in his presence.

'(3) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.'

In the case of Jones v. State, 161 Tenn. 370, 33 S.W.2d 59, the Court said:

'The substance of these...