Fuller v. State

OPINION

DWYER, Judge.

This appeal flows from a conviction by a jury for committing the offense of kidnapping, T.C.A. § 39-2601, with punishment of confinement for ten years.

The plaintiff-in-error, later referred to as defendant, has seasonably appealed and presents the following assignments of error: (1) that the evidence is insufficient; (2) that the court erred in refusing to charge the jury on the lesser included offense of assault; (3) that the trial court erred in restricting testimony pertaining both to the defendant’s behavior when intoxicated and to the results of his treatment for alcoholism; (4) that the trial court erred in allowing the state to call a rebuttal witness not listed on the indictment; and (5) that there was new evidence which should have caused the trial court to grant him a new trial.

The record reflects the following facts from our review: A young couple were parked on a highway in Blount County on the evening of July 24, 1972, around 10:00 p. m. The defendant pulled his car in back of their vehicle and, after alighting, approached the couple and at gunpoint ordered them out of their car. The defendant, at the time, was attired in sports clothes and represented himself to be a deputy sheriff. He accused the couple of stealing the car and some scuba equipment they had in their vehicle. They were then ordered into the defendant’s car where a youngster companion of the defendant was sitting. The couple were put in the back and the defendant stated that he was taking them to the judge. After having driven around for approximately an hour, the defendant stopped the car and put the pistol down. The youth grabbed it and struck the defendant with it whereupon the defendant and his companion ran off.

The youth and his date then drove the defendant’s car back to where his car had been left. They each drove one of the cars to the youth’s home and made a complaint to the police.

The defendant was apprehended that night.

The pistol which the defendant had held turned out to be a B.B. pistol that was a replica of the Army .45.

At the trial the defendant argued a defense of drunkenness. He contended that he did not recall the events of the night in question. It was his assertion that he had voluntarily consumed some 18 beers and had no remembrance of the evening, other than that he thought four hippies had hit him on his head and had taken his car. He related that he had a history of drinking and of having a drinking problem.

He offered witnesses who testified that on the evening in question the defendant was intoxicated.

We think that the evidence is sufficient to sustain the verdict. The factual differences between the testimony of the witnesses has been settled by the verdict of the jury. The state’s witnesses related that the defendant was not intoxicated. The defendant and his witnesses related that he was. We are not free to reevaluate this evidence, which by the jury’s verdict has been decided adversely to his contention. See State v. Grace, Tenn., 493 S. W.2d 474, 476. The verdict has settled against the defendant his defense that he was so intoxicated that he could neither remember the events nor possibly have formed the intent to commit the crime. See Bradford v. State, 208 Tenn. 500, 347 S.W.2d 33. The assignments pertaining to the sufficiency of the evidence are accordingly overruled.

We do not think that the trial court, under the evidence in this record, has to charge, as urged, on the offense of assault. See T.C.A. § 40-2518. The defendant reasons that inasmuch as the trial court charged that assault is an element in kidnapping, then following Strader v. State, 210 Tenn. 669, 362 S.W.2d 224, it was and is mandatory under T.C.A. § 40-2518 that the trial court charge the lesser offenses. However, a reading of Patterson v. State, 218 Tenn. 80, 400 S.W.2d 743, and Bolin v. State, 219 Tenn. 4, 405 S.W. 2d 768, reveals that Strader, supra, has been limited to its facts. They teach that once an offense is clearly made out by the evidence, then the trial court does not have to charge on lesser offenses. See Good v. State, 69 Tenn. 293, 294, 295. The evidence, as narrated, clearly reflects that the defendant imprisoned the young couple against their will. He defended on two theories: (1) that if he was involved, he was too drunk to form the “requisite intent” to kidnap; (2) that he was jumped by four hippies. In either event, he does not remember what happened. It is clear that the fact of the crime of kidnapping has been made out in this record and that, at best, the defendant is contesting his identity as the perpetrator of this crime. The voluntary drunkenness and amnesia of the defendant is no defense. See Walden v. State, 178 Tenn. 71, 156 S.W.2d 385, 387; Thomas v. State, 201 Tenn. 645, 301 S.W.2d 358, 360, 361. Since it is no defense the fact of the offense is not questioned by the untenable theory advanced. Therefore, no issue is raised in the evidence calling for a charge on a lesser included offense. Under these circumstances, the trial court did not err in declining to charge on assault. The assignments are overruled.

We do not think that the court erred in restricting defendant’s testimony as to the treatment he had received in the hospital because of alcoholism. Nor do we think that the trial court unduly restricted his witnesses nor inhibited his defense of drunkenness. This record reflects that liberality was accorded the defendant in admitting his voluntary alcohol problems. The assignment is overruled.

Nor do we think that the court erred in allowing the state to call in rebuttal one officer not listed on the indictment. The defendant testified that he was intoxicated the night in question. The officer in rebuttal testified that he had seen the defendant that night and that he was not intoxicated. We find no abuse in the trial court’s discretion in allowing this rebuttal testimony. See Guy v. State, 1 Tenn.Cr. App. 366, 370, 443 S.W.2d 520. The assignment is overruled.

Finally, we do not think that the court erred in declining to sustain defendant’s motion for a new trial raised on the contention of newly discovered evidence. The evidence in the affidavit accompanying the motion reflects that another officer had seen defendant on the morning after the event occurred and that he was intoxicated. We do not think, however, that the trial court abused its discretion in denying the motion. Looking at this evidence, in its most favorable light to the defendant, its only purpose was impeachment. Neither do we think that this evidence would have brought about a different result. See Rosenthal v. State, 200 Tenn. 178, 185, 186, 292 S.W.2d 1. The assignment is overruled.

The judgment of the trial court is affirmed.

WALKER, P. J., concurs.