Capps v. State

OLIVER, Judge

(concurring).

It is always competent to show that the defendant had possession of property recently stolen from the premises he is charged with burglarizing, and such possession is evidence which may be considered, along with all the other facts and circumstances in proof, as bearing on the question whether the defendant committed the burglary. An inference of guilt is permissible from the possession of property recently stolen in a burglary, and the inference exists both as to the burglary and the stealing. Pruitt v. State, 3 Tenn.Cr.App. 256, 460 S.W.2d 385 and authorities therein cited; Wyatt v. State, 4 Tenn.Cr.App. 1, 467 S.W.2d 811.

GALBREATH, Judge

(dissenting).

The evidence presented in this case is adequately detailed by Judge Russell’s majority opinion. I cannot agree, however, that this evidence is sufficient to sustain a conviction of these defendants for burglary. Defendants admit that the law in Tennessee allows a conviction for larceny upon a showing of unexplained possession of recently stolen property. While this presumption has been expanded in recent years by our Supreme Court (see Tackett v. State, 223 Tenn. 176, 443 S.W.2d 450), such proof has not been held previously to provide the basis for a burglary conviction. A discussion of this point is found in the old (1903) case decided by the Supreme Court of Iowa, State v. Brady, which to me retains its logic and justness today:

1. As to the effect to be given in prosecutions for burglary to proof of possession of goods stolen in connection with the breaking and entering, the authorities are not entirely in harmony. There are decisions holding without qualification that the fact of possession of property recently stolen under such circumstances has no tendency to prove the possessor’s guilt of burglary. People v. Gordon, 40 Mich. 716. On the other hand, cases may be found to the effect that such fact alone creates a sufficient presumption of guilt to justify a conviction. Knickerbocker v. People, 43 N.Y. 177. Our own cases have gone to neither extreme, and are, we think, in harmony with the weight of authority. As laid down in State v. Rivers, 68 Iowa [611], 616, 27 N.W. 781, the rule approved by this court is that: “The possession of property which has been stolen from a building which had been broken and entered is not alone prima facie evidence that the one having it is guilty of burglary. Such possession unexplained does raise a presumption that the party is guilty of larceny, but it does not follow that both crimes were committed by the same party. The one who committed the larceny may have found the building open after the burglary was committed, and may have entered and stolen the goods without having been concerned in the breaking. It is obvious, therefore, that the mere possession of the stolen goods does not have the same tendency to connect him with the burglary which it does with the larceny.” To the same effect, see State v. Reid, 20 Iowa, 413; State v. Shaffer, 59 Iowa, 290, 13 N.W. 306; State v. Tilton, 63 Iowa, 117, 18 N.W. 716.

State v. Brady, 121 Iowa 561, 97 N. W. 62.

The Trial judge correctly instructed in this case:

Now the offense of possession of stolen property in burglary. The mere fact that a person is in conscious possession of recently stolen property is not enough to justify a conviction of burglary. It is however a circumstance to be considered in connection with other evidence. To warrant finding them guilty'there must be proof of other circumstances tending of themselves to establish guilt.

Bill of Exceptions, Vol. Ill, Page 218.

The only evidence presented other than the possession of the stolen property which could possibly tend to show guilt of the breakin itself was the presence of tools in the car. The fact that tools were found in the car which could have been used to force entry into the burglarized home is not to me sufficient to add to the possession of the stolen goods to support a conviction for the actual breakin.

Further difficulty is encountered in these convictions, particularly that of Sexton, in that the possession of the property shown to be recently stolen was not personal and exclusive. As in Morelock v. State, 187 Tenn. 478, 216 S.W.2d 5, . . . “to warrant an inference of guilt it must further appear that the possession was personal, and that it involved a distinct and conscious assertion of possession by the accused.”

As was succinctly noted by the Supreme Court of Illinois in People v. Urban:

. . . [I]t must be made to appear that the defendant’s possession of the stolen property was not only recent but that it was exclusive and as is said in People v. Mulvaney, 286 Ill. 114, 121 N.E. 229, 230, “it must be personal, exclusive and with a distinct implied or express assertion of ownership. A mere constructive possession is not enough.”

People v. Urban, 381 Ill. 64, 44 N.E.2d 888.

Capps admitted possession of the guns, claiming he had bought them in Chattanooga, Birmley admitted knowledge of the guns in the car, but Sexton denied even knowledge of their presence. In this context Capps alone was shown to be in possession.

I would reverse the burglary convictions.