Nunley v. State

OPINION

DWYER, Judge.

From a jury’s verdict with judgment entered thereon finding John Henry Nunley guilty of concealing stolen property under the value of one hundred dollars, with resulting confinement for not less than one year nor more than one year and a day, this appeal is perfected.

On Friday, April 10, 1970, a crew engaged in strip mining for the L. P. Phipps and Sons, Inc. corporation in Coalmont left their work at 3:30 p. m. The following morning, Saturday, upon reporting to work Dale Phipps discovered welding equipment used in their work was missing. A complaint made to the sheriff resulted in the arrest of Nunley and a cohort a few hours after receipt of the theft report. The record reflects that the sheriff had information that Nunley and another were at a body and garage shop in Gruetli the same Saturday trying to sell torches, hoses and gauges for welding equipment. A short time after receiving this information the sheriff stopped Nunley in his car and arrested him and his companion. At the time of arrest he noticed and recovered two pressure gauges which contained four dials, two dials that show the amount of acetylene and oxygen pressure in the tanks and two others that show the acetylene and oxygen pressure at the torch. These gauges were in plain view on the floorboard of the front seat of Nunley’s car under the feet of his companion. The sheriff recovered other parts of the missing equipment found some fifty feet outside the fence of Nunley’s property.

The gauges and other equipment were identified by the welder and owner as part of the missing property.

The defendant contends the evidence is insufficient in that no proof, other than leading questions, established that there was a theft. In our review of this record we note that there was no objection made to several of these questions containing the references to the property as being stolen. We further feel from our review that the element of theft was established. The owner on cross examination by defense, related the property was stolen on Friday night, and was reported as missing on Saturday morning. Defendant further reasons that there is an insufficiency in that there was no proof that he concealed the property knowing it to have been stolen. The record reveals that the two gauges were found in defendant’s car within hours after they were reported missing, and that also within hours defendant was trying to sell the missing equipment. Defendant did not testify. We feel that there is a sufficiency of the proof that the State made out a prima facie case, from the above related factual situation found in this record. Under the rule enunciated in Tackett v. State, 223 Tenn. 176, 443 S.W. 2d 450, an inference arises from the unexplained possession of stolen property shortly after the property was discovered and reported missing. When this possession is, as here, unexplained, a jury is authorized to infer the knowledge of the possessor that the goods were stolen, and to return a verdict of guilty of concealing stolen property. It is also noted that the jury returned a verdict of concealing stolen property of the value of less than $100, on an indictment charging a value over $100. The two pressure gauges found in defendant’s car, in his possession and control, shortly after being discovered missing, and identified as part of the missing equipment by the owner, are sufficient property value and circumstances to support this verdict. See also Thomas v. State, Tenn., 463 S.W. 2d 687, 688. The defendant has not carried the burden to show that the proof preponderates against his guilt and in favor of his innocence. See Haas v. State, Tenn.Cr.App., 455 S.W.2d 634. The assignment is accordingly overruled.

Defendant next contends the sheriff did not advise him of his rights at the time of arrest. In other words, he claims a non-compliance with the tenets of Miranda. We note first that defendant did not make any statement. We further note that in an out of the presence of the jury hearing, in which the sheriff testified, the trial court found that the sheriff had properly advised the defendant in accordance with Miranda, in that he had used a card on which the complete Miranda warnings were printed. This finding by the trial court is given the weight of a jury verdict. See Taylor v. State, 180 Tenn. 62, 171 S.W.2d 403. We do not find the evidence, from our review of this record to preponderate against his ruling. The assignment is overruled.

Defendant lastly maintains that a statement of co-defendant out of his presence telling the sheriff where they found the missing equipment was a violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. He reasons that this statement made out of his presence deprived him of the right to cross examine co-defendant, who did not testify. We find in the record that the trail court instructed the jury that the exculpatory statement of the co-defendant could not be considered against the defendant. Furthermore, defendant did not object and did not assign this ground in his motion for a new trial. It will not be considered here. See Rule 14(4), (5) of the Rules of the Supreme Court, duly adopted by order as the rules of this court. Also see State ex rel. Carroll v. Henderson, Tenn.Cr.App., 443 S.W.2d 689, 691, 692. The assignment is overruled.

In conclusion, we are aware of the able and learned dissenting opinion filed by Judge Oliver in this record and we will comment thereon.

In the first instance, no objection nor exception was taken to the verdict as returned by counsel. Hence, the trial judge did not have the matter called to his attention and given the opportunity to correct.

In the second instance, the unfortunate use of the ward “larceny” should not invalidate this judgment. The word larceny entered into the proceedings when the court charged the concluding proviso found in T.C.A. 39-4218, “. . . Provided further, that no person shall be convicted of more than the one (1) offense of larceny.” (Emphasis added.) To remand this, as we view the event, would be hyper-technical and not in the spirit of the law. In other words, this would be an idle waste of the taxpayers’ money. See State v. Veach, Tenn., 456 S.W.2d 650, 652.

We feel that justice has been fairly meted out to this defendant by our majority opinion and therefore no due process of law is involved.

In the third instance, our Supreme Court in an unreported per curiam opinion styled Jacobs et al. v. State, released February 16, 1971, adopted in toto the dissenting opinions of Presiding Judge Walker in reversing the remand of that case by the majority opinion of this court. The reversal by the majority opinion of this court was predicated as here on an unassigned error.

In Presiding Judge Walker’s adopted opinion by our Supreme Court the following language may be found:

“In Silber v. United States, 370 U.S. 717, 8 L.Ed.2d 798, 82 S.Ct. 1287 (1962), the court said:

‘In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings’ (Emphasis added.)

“In the normal run of appellate cases, of which I think this is one, an appellate court should not consider questions other than those presented to it by the parties. Silber v. United States, supra; United States v. Atkieson, 297 U.S. 157, 80 L.Ed. 555, 56 S.C.T. 391.”

Was this error obvious? We think not. Does it seriously affect the fairness of the proceedings? No. Will it affect the integrity or public reputation of judicial proceedings? We seriously doubt it.

The judgment of the trial court is affirmed.

WALKER, P. J., concurs. OLIVER, J., dissents.