Davis v. State

BYERS, Judge.

OPINION

The appellant was convicted of grand larceny and sentenced to serve three (3) years in the state penitentiary.

The appellant assigns three (3) errors, contesting the sufficiency of the evidence to support the verdict, and the admission of certain pictures into evidence.

We find the evidence preponderates against the verdict of the jury and reverse the judgment and dismiss the charges against the appellant.

The State’s evidence shows an armed robbery occurred on July 16, 1976, at the Bin-ghampton Service Center in Memphis where the Department of Human Services distributed food stamps to those qualified to receive them. The crime was committed by two (2) men who took money and food stamps from the Center and a gun belonging to a guard. The stolen property was found the following day at the residence of a man named Bobby Jeffries.

Jeffries, along with the appellant, was indicted for armed robbery. We do not know from this record of the disposition of the case against Jeffries.

We are not unmindful of the rule which prohibits us from reevaluating the evidence adduced at trial, State v. Hatchett, 560 S.W.2d 627 (Tenn.1978), or of the rule the jury verdict accredits the State’s witnesses and establishes their theory of the case. Hawkins v. State, 527 S.W.2d 157 (Tenn.Cr.App.1975). We are mindful also of the rule that where the evidence preponderates against the verdict of the jury the judgment cannot stand.

We find in this case, applying all the rules above stated, that the evidence does preponderate against the verdict of the jury.

As our short resumé of the facts indicated, the food stamps, etc., were taken in an armed robbery by two (2) men. This fact was not disputed.

The appellant was indicted for armed robbery. The trial judge charged grand larceny as a lesser included offense and it was on this offense the appellant was convicted. During the course of this armed robbery, several shots were fired one of which pierced the pants leg of one of the employees. The finding of grand larceny and the fixing of the minimum penalty of three (3) years is incongruous in light of the clear evidence the crime of robbery was committed and the weakness of evidence as to the appellant.

Connie Foster, a State’s witness, who was employed at the Food Stamp Center, testified she worked near the entrance of the place robbed. At the Food Stamp Center, people who enter sign their names. She testified the two men who committed the crime entered and signed the names Steve Davis and Maurice Tillman. She testified she knew the appellant and he was not one of these two men.

Elizabeth Miller, the person from whom the food stamps were taken, testified she knew the appellant and he was not present during the robbery.

John Mason, the guard whose gun was stolen, testified he saw one of the men and he was not the appellant.

There was no evidence either direct or circumstantial to show the appellant waited outside the building to drive the two active participants in this crime from the scene.

The substance of the testimony of the witnesses for the State who were present at the scene of the crime was that the appellant was not present and was not actively participating therein.

The State offered a witness, Rubert Wilson, who lived a few blocks from the Center. Wilson testified he gave the appellant and Jeffries a ride — Jeffries to his home on Angeles Street and the appellant to his mother’s home in South Memphis — after the time of the robbery. He said appellant told him they had “got the Food Stamp Office.”

Wilson was arrested for investigation of this offense on the evening of the crime. He remained in jail until Sunday. During this time he gave a statement consistent with this testimony. Subsequent to his release he made a sworn statement saying his original statement was not true. At trial he said his original statement made to police was true.

Wilson was arrested because a car fitting the description of his vehicle was apparently used in the robbery. Wilson told the officer Davis had borrowed his car on this date.

James Carr was called as a State’s witness. He testified he was present when plans were made to rob the Food Stamp Center. He said the appellant was not present when the plans were made. He further testified that a person called Big Man was present during the planning stages, and this person received some of the stolen food stamps. Wilson, the only State’s witness to implicate the appellant, is the person known as Big Man.

In summary, the State presented three witnesses who were present when this crime occurred. Two of the witnesses said they knew the appellant and he was not one of the two men who committed this crime. The third eyewitness said he got a good look at one of the men and this man was not the appellant. The State presented two witnesses who were not shown to be present at the time of the crime but whose testimony dealt with the pre-crime and post-crime activity.

James Carr said the appellant was not present when the crime was planned. He says Wilson was and that Wilson received some of the stolen goods.

Wilson, who lived near the scene of the crime, and whose vehicle fit the description of one apparently seen at the scene of the crime, and who gave conflicting extrajudicial statements, says the appellant said “we got the Food Stamp Office.” These six (6) words constitute the only evidence against the appellant.

The State’s evidence clearly shows the appellant was not actively participating inside the Center where the robbery occurred. The State infers, therefore, the appellant was acting as the wheel man. There is, however, no evidence to support such an inference.

The only hint which we have about a get away vehicle is that it fits the description of a vehicle owned by Wilson.¹

The evidence against the appellant, at best, is circumstantial. This evidence does not exclude all reasonable hypotheses other than that of guilt. One might more reasonably hypothesize another is guilty if the guilt is to be based on the driving of the active participants to and from the scene of the crime.

The evidence in this case clearly connects Jeffries with this crime. The photographs showing the stolen property in his possession would be admissible against him and against any person who is shown to have aided and abetted him in the commission of the crime. Wilson’s testimony made them admissible. However, the picture and evidence concerning these items did not connect the appellant with Jeffries or strengthen Wilson’s testimony. We cannot say, however, the introduction of these photographs was erroneous.

The introduction of the picture of the automobile was erroneous. There is no evidence to tie this vehicle to Jeffries, the appellant or to the crime. The jury could only speculate this vehicle might have some connection with the crime. If they found it did, such finding would be made without a scintilla of evidentiary support.

DUNCAN, J., concurs.

1 . This comes from an officer who received the information from someone unidentified in this record.