Smith v. State , 2 Tenn. Crim. App. 117 ( 1969 )

OPINION

WALKER, Presiding Judge.

The defendants below, Benny Harold Smith and Doris Shipley, were convicted of grand larceny in McMinn County and sentenced to three years in the penitentiary.

Their first assignment of error questions the sufficiency of the evidence to sustain their convictions.

During the night of December 17, 1967, Minnie Lou Hunter’s dress shop in Calhoun, McMinn County, was broken into and women’s clothing valued at $2,653.12 was stolen. The burglary was discovered and investigated the following morning.

On January 2, 1968, city officers searched the house in Chattanooga, where the defendants were living together. They found thirty dresses of various sizes labeled “Bobby Brooks” on hangers and also 22 sweaters. Mrs. Hunter identified several of the garments by her price tag and identified others as of the style and brand taken from her store. All of the stolen property was not found.

Both defendants were arrested and warned of their constitutional rights. Smith made no statement, but Mrs. Shipley told the officers at her house that the dresses were given to her over a period of time and that she had bought some of them. She did not mention the name of Sam Hood. Her explanation at the scene was to the effect that her possession was not recent.

At their trial Smith did not testify. Mrs. Shipley testified that a man she knew as Sammy came by her house a week or two before Christmas and delivered some clothes to Smith, for which Smith paid $50 the next day and $25 later; that she loaned him $15 or $20 of the money to pay Sammy, who is also called Sam Hood by the defendants. Hood was shot and killed about two months before the trial. Mrs. Shipley said that Smith gave her the dresses and sweaters for her daughter and herself. One Wayne Johnson testified that Hood had some women’s clothing in his car trunk a week or two before Christmas which Hood had offered to sell him.

Mrs. Shipley and Johnson were evasive and indefinite about the time when they had seen Hood. It is obvious that the jury did not believe their testimony that the deceased Hood had sold the clothing to Smith.

In this state we follow the generally approved rule that the unexplained possession of recently stolen goods may warrant an inference that the possessor has stolen them. See Tackett v. State, Tenn., 443 S.W.2d 450; Peek v. State, 213 Tenn. 323, 375 S.W.2d 863; Hughes v. State, 27 Tenn. 75. When the proof shows a defendant’s possession to have been a guilty possession, slight circumstances may authorize a jury to determine whether he has been guilty of the theft or of receiving stolen property, knowing it to have been stolen. See Cook v. State, 84 Tenn. 461, 1 S.W. 254.

The defendants contend that they gave a reasonable explanation of their possession of the recently stolen clothing, that their explanation was not disputed by the State’s evidence and therefore the inference which otherwise would be permissible is not permissible in this case; and for that reason the evidence does not sustain a finding of guilty of larceny.

The “unexplained” in the inference of guilt from the unexplained recent exclusive possession of stolen property does not mean that the defendants’ explanation must be believed. “Unexplained” does not mean “no reasonable explanation given.” The Supreme Court of Missouri recently considered this question in State v. Clark, Mo., 438 S.W.2d 277 (1969). It held that if the trier of fact does not believe the explanation of the defendant, the possession is unexplained. If the defendants’ contention is the law, the rule under discussion would be useless. In almost every such case, some explanation is offered by the accused. Here the jury rejected as unreasonable and incredible the defendants’ explanation that the deceased Sam Hood sold Smith the clothes. See also Taylor v. State, 118 Ga.App. 605, 164 S.E.2d 876 (1968); United States v. Williams (4th Circuit), 405 F.2d 14 (1968).

Under the same assignment, the defendants contend there is no proof of venue. There is no direct proof that they were in McMinn County. The inference that may be raised by unexplained possession of recently stolen goods is not limited to the territorial jurisdiction where an accused is found in possession of the stolen goods. This possession may warrant an inference of guilt at the place where the crime was actually committed. See Williams v. Commonwealth, 188 Va. 583, 50 S.E.2d 407. Venue may be proved by circumstantial evidence.

In considering and passing upon the assignments on the weight of the evidence, this court is bound by the rule that a conviction in a criminal case will not be reversed on the facts unless it is shown by the defendant the evidence preponderates against the verdict and in favor of his innocence. Schweizer v. State, 217 Tenn. 569, 399 S.W.2d 743; Black v. State, Tenn. Crim. App., 443 S.W.2d 523.

The defendants assign as error the argument of the district attorney general. We have carefully examined the argument to which objection was made and we find no abuse of discretion in the trial judge’s control of the arguments of counsel. See White v. State, 210 Tenn. 78, 356 S.W.2d 411. We think these remarks were not prejudicial.

The defendants submitted a single special request, including in it a charge on venue and on the difference between larceny and receiving and concealing stolen property.

The general charge thoroughly covers the question of venue and an additional instruction was unnecessary. The defendants were not on trial and could not have been tried in McMinn County for receiving and concealing stolen property. This contention is without merit.

All assignments are overruled and the judgment of the lower court is affirmed.

This case was heard and submitted to the Court prior to the enactment of Chapter 330 of the Public Acts of 1969 increasing the membership of the Court.

OLIVER, J., concurs.