Winfree v. State

• Decision Date: 21 January 1939
• Citation: 123 S.W.2d 827
• Parties: WINFREE v. STATE.
• Court: Tennessee Supreme Court

123 S.W.2d 827

WINFREE v. STATE.

Supreme Court of Tennessee.

January 21, 1939.

Appeal from Circuit Court, Wilson County; O. K. Holladay, Judge.

Charlie Frank Winfree was convicted of larceny of chickens, and he appeals.

Judgment affirmed, but commutation of sentence recommended.

Thomas E. Hinson and Willard Hagen, both of Lebanon, for appellant.

W. F. Barry, Jr., of Nashville, for appellee.

CHAMBLISS, Justice.

This appeal is from a conviction of larceny of chickens, with a prison sentence of two years. Jennings, another Negro boy, was caught with four of eight chickens stolen, and he testified that defendant Winfree helped him in the theft. This boy was given a year and a day in the reform school. Complaint is made that the conviction rests on the uncorroborated testimony of a confessed accomplice. The only other evidence adduced connecting Winfree with the theft was the testimony of officers that when Jennings accused Winfree in his presence of participation in the offense, he made no denial, or other response — said nothing at all. This, it is said for the State, was proper to be looked to by the jury as a corroborative circumstance. The defendant did not testify himself, nor did he introduce any testimony to impeach Jennings, or to offset his testimony, in the form of an alibi, or otherwise.

Counsel for the State assert that the proven conduct of the defendant was, in effect, an admission of his guilt which the jury might properly treat as a corroborative circumstance. The following quotation from Wharton's Criminal Evidence, Vol. II, 11th Ed., pp. 1089-1092, is made in the brief:

"Sec. 656. Admissions by silence. It may be stated as a general rule that, when a statement is made in the presence and hearing of an accused, incriminating in character, and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny are admissible on a criminal trial as evidence of his acquiescence in its truth. A statement so made would, of itself, be objectionable as hearsay testimony, being a statement made at some time other than at a present trial, offered to prove the truth of the matter therein asserted, and based entirely on the credibility of a declarer not then before the court. However, as in the case of admissions generally, the statements herein considered are not offered as evidence of their truth merely because they were uttered; they are secondary in nature and are accepted in...