Gable v. State ( 1974 )

DWYER, Judge

(dissenting).

I disagree.

The convicted juvenile accomplice, Nun-ley, related that the defendant gave to him and Givens a jack with which to take the wheels off the car. He further stated that the defendant was present at the time they removed the wheels and helped them in the process.

The investigating officer, testifying for the state, related that defendant in response to his interrogation after being fully advised, made a statement:

“He said that Friday night after midnight, in other words, Saturday morning, it would be 6-23-73, I was at the Texaco station in Niota, Tennessee. Jim Nunley and Wayne Givens wanted to borrow my jack. I was at the car asleep when they brought it back. They never did say what they wanted it for.”

I think that this statement is adequate and provides sufficient circumstances for corroboration. See State v. Fowler, 213 Tenn. 239, 247, 373 S.W.2d 460, 463. The weight of the statement is for the jury. It definitely connects the defendant with the crime by his acknowledgment of the use by Nunley of the jack. See Williams v. State, 216 Tenn. 89, 101, 390 S.W.2d 234. It is sufficient, even though it is slight and though standing alone, it would be inconclusive. See Williams v. State, supra at p. 101, 390 S.W.2d 234. The statement, in short, supplies corroboration inasmuch as: (1) it connects him with the crime by his furnishing “the use of the jack”; and (2) it puts him at the scene of the crime. See Wharton’s Criminal Evidence, 13th Ed., Vol. 3, § 649, Corroboration. In short, either (1) or (2) itself would be sufficient corroboration but (1) and (2) together amount to corroboration on corroboration.

Boulton v. State, 214 Tenn. 94, 377 S.W.2d 936, is readily distinguishable from this case for in Boulton there was abolutely no proof any crime was committed other than the word of the accomplice. It exemplifies the rule of law in this state that the accomplice’s testimony must to some extent be corroborated. With this I have no argument. For under the facts of this case, the crime is evident and the culpability of the defendant as to his participation in this crime was a jury question.

It may be true, although not found in this record, that many motorists loan jacks to others without assisting the borrower in committing crime. However, the defendant’s testimony that he was drinking and did not know why they borrowed the jack was for the jury to accept or reject. They have rejected his explanation. I would affirm this judgment.