Yelton v. State

• Decision Date: 07 February 1963
• Citation: 15 McCanless 464,365 S.W.2d 877,211 Tenn. 464
• Parties: , 211 Tenn. 464 James A. YELTON v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 877

365 S.W.2d 877

15 McCanless 464, 211 Tenn. 464

James A. YELTON v. STATE of Tennessee.

Supreme Court of Tennessee.

Feb. 7, 1963.

Rehearing Denied April 3, 1963.

Robert L. Dobbs, Clyde Mason, Memphis, for plaintiff in error.

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

WHITE, Justice.

James David Cannon and James A. Yelton were indicted on September 29, 1961 for burglary of a grocery store known as Big Star No. 54 located in Memphis, Tennessee. They were convicted of safe burglary and the jury fixed their punishment at not more than seven (7) years in the State Penitentiary. The Trial Judge approved the sentence. Both parties appealed and assigned errors. Thereafter, Cannon dismissed his appeal and we consider the case of Yelton only.

It appears, without dispute, that said grocery store was burglarized on the night of August 21, 1960. The safe was broken into and the sum of $21,000.00, mostly in cash, was removed therefrom.

Tommy Junior Guy was arrested in December, 1960, and questioned about the burglary of said grocery store, along with several other unsolved burglaries which had occurred in Shelby County. He admitted his participation in the burglary of Big Star 54 and implicated Cannon and Yelton. He also admitted participating in other burglaries in Shelby County. His testimony will be related in detail herein.

In September 1961, Yelton was arrested and was questioned by a Captain Hutchinson of the Shelby County Sheriff's office at which time he (Yelton) stated:

'* * * that he was a farmer, a cropduster from Enid, Mississippi; that he owned 206 acres of land that he farmed; that he owned a 1959 Cadillac he described to me as white over blue; that it was equipped with a two-way radio; that he owned and had two walkie-talkie that he used in performance of his duties around the farm; he said he owned a 1952 GMC red and white pickup truck; he stated he owned a 1959 black Ford truck, and he also stated he owned three Model 'A' Fords and an airplane. He stated that he knew Abner Wesson Donaldson form a crap game; he stated that he knew Tommy Junior Guy and Seri, and admitted the gambling. He stated he did not know James David Cannon and never heard of him.'

In the affidavit of Yelton filed in support of his motion for a severance he said that 'he knows the co-defendant James David Cannon, and that knows the person by the name of Tommy Junior Guy'. He also said in the affidavit that on numerous occasions he had engaged in gambling with Cannon and Guy and said, indirectly, that Guy had lost 'abnormal sums of money to your affiant'.

He denied that he had ever rented an apartment in the Memphis area. The witness, Mrs. Fauver, testifies that he rented one from her and exhibited a signed rental contract as evidence thereof.

Guy appearing for the State testified that he was a professional safecracker and during the early part of 1960 he lived in Kansas City, Missouri with his family. Yelton, whom Guy had met sometime earlier, called him and asked him to come to Memphis to look at a score in Memphis. He defined a score as being a 'type of business with a lot of money, safe or goods'.

Upon his arrival in Memphis he was unable to locate Yelton and from there proceeded to Batesville, Mississippi where Yelton lived. There is other evidence of residence in Batesville in the record. After this meeting the two of them returned to Memphis where an apartment was rented by Yelton, but in the name of 'J. R. Bridges'. According to Mrs. Fauver, the resident manager of the 88 unit apartment, Yelton and Guy came to her on the 27th day of June, 1960, to rent an apartment. Mr. Yelton represented himself as being J. R. Bridges; that he was a pilot and the young man with him (Guy) was an airplane mechanic. Yelton in the rental application wrote in script that his name was J. R. Bridges; that there would be two adults occupying the apartment; that his former address was Batesville, Mississippi; that he was self employed and his present address was Mississippi and Arkansas. His occupation was that of pilot; that his nearest relative was C. M. Bridges of Batesville, Mississippi, and then he gave some credit references at Batesville.

He paid Mrs. Fauver the sum of $214.50, $100.00 being a deposit on the furniture to be refunded upon termination of the lease, and $114.50 for rent for a month in advance for the month of July, 1960. A couple of days thereafter Yelton and Guy moved into the apartment. Mrs. Fauver saw Yelton, known to her as Bridges, seven or eight times during the period of three months when he occupied the apartment off and on, but in the latter part of August, 1960 he notified her that he was being transferred and going out of the country to a Latin American Country. Mrs. Fauver in early September located Yelton and advised him that she had a tenant who would take the apartment for the last ten days of the month and, therefore, if agreeable, she would let them move in and refund to him the original deposit of $100.00. He gave her an address on Adams Street in Memphis to which the refund could be and was sent.

Yelton came to see Mrs. Fauver to pick up some linens that were left in the apartment by some of his friends who had been living there. At that time he apologized to her for the conduct of these people whom she had asked to move. This time Yelton told Mrs. Fauver 'that the reason he was in company with these people was because he was an investigator for an insurance company, and that he was doing some special work on a guy, and he had to do these things in order to come in contact with the people involved in some deal'.

On the trial of the case Mrs. Fauver identified Tommy Junior Guy and Yelton known to her originally as Bridges, but later known as Yelton, as being the two men who originally rented the apartment from her.

The defendants Cannon and Guy lived in the apartment rented by Bridges but they decided to leave and did leave on September 19, 1960, when it was surrendered by Yelton, and moved to an apartment on Raines Road in Whitehaven, Tennessee, at which time Cannon signed the lease and made the necessary deposits and paid the necessary rent.

Guy further testified that he and Yelton traveled around in the city of Memphis looking for places to burglarize. They finally decided upon the Big Star 54 Grocery Store and after making an investigation they found the safe was located near a front window and they procured a tarpaulin to cover it while it was to be opened. They also acquired tools to be used in the actual burglary of the safe.

On the night of the crime Guy and Cannon entered the grocery store by way of the roof and covered the safe with the tarpaulin. Guy used an acetylene torch to open the safe. During this time Yelton was in his car listening to the radio, and was picking up police calls. Guy also said Yelton had provided them, that is, Cannon and Guy with a two-way radio (Walkie-talkie) which they took inside the building with them. Yelton had a similar radio with him. While Guy and Cannon worked on the safe inside the building Yelton listened to all police calls on his car radio and advised Cannon and Guy of the police activities and any other activity in and around the building.

Upon the completion of the burglarizing of the safe the three participants returned to the apartment on Raines Road and divided the money.

It will be remembered that Captain Hutchinson testified that Yelton admitted the ownership of two walkie-talkie radios and that his car was a white and blue Cadillac automobile equipped with short wave radio equipment.

The witness, Cecil Winters of Lansing, Michigan, testified that one Dan Miller, during the latter part of February, 1961 brought two walkie-talkie radios to his shop for repaid. On April 27, 1961 they were picked up by Barbara Barnes, a friend and companion of Cannon, according to the testimony of other witnesses. Pictures of these two radios are in the record and they were identified by Guy as being the same type used by them in the burglary. Guy also said repeatedly that Yelton owned a blue and white Cadillac and that the same was used in the commission of the crime.

Neither Yelton nor Cannon testified in their own behalf. But from their failure to do so, there should not be drawn any inferences of guilt by the jury or the Trial Court for the reason that every one is presumed innocent until proven guilty beyond a reasonable doubt.

The Judge very properly and correctly charged the jury:--'The defendants are not required to take the stand in their own behalf and their failure to do so cannot be considered for any purpose against them, nor can any inference be drawn from such failure of the defendants to take the stand in their own behalf.'

However, on appeal this presumption of innocence is displaced and a presumption of guilt is raised and the burden is placed upon the plaintiff-in-error to show that the evidence preponderates against the verdict and in favor of his innocence. Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385, 389, and cases there cited, and Dupes v. State, 209 Tenn. 506, 354 S.W.2d 453.

A fair statement of the assignments are that:

(1). The evidence preponderates against the guilt of the accused and in favor of his innocence.

(2). The Court erred in denying Defendant's motion for a severance.

(3). The Court erred in refusing to direct a verdict in favor of the Defendant.

(4). The Court erred in refusing to charge various instructions requested by the Defendant.

We consider first the assignment directed to the Court's refusal to grant a severance to Yelton upon motion duly made.

'The rule in this State is that the trial judge will not be put in error for his failure to grant a severance where the defendant was not prejudiced by the refusal and the trial judge did not abuse this discretion. Stated in another way, this Court will not place the trial court in...