Judges: Galbreath, Oliver, Walker
Filed Date: 4/22/1969
Status: Precedential
Modified Date: 10/18/2024
OPINION
Maxwell, Stokes and Newmon were jointly indicted for two cases of robbery. The first indictment charged them with robbing Eugene Smith of a hat, billfold and $43.50; the second charged them with robbing Manch Phillips of a billfold and $24. The cases were tried together and resulted in the conviction of all three of robbery in each case. In accordance with the verdicts, the trial judge sentenced them to the penitentiary for five to ten years in each case. He fixed these sentences to be served concurrently. At the trial Stokes was represented by privately retained counsel; the others were represented by different members of the public defender’s staff. On appeal the public defender represents all of the defendants.
Phillips was slightly ahead of Smith as they walked down Latham Street. Smith was struck from behind and rendered unconscious. Phillips turned and said, “What’s going on here? I know you.” At that time, Newmon hit him in the mouth, knocking out a tooth. He fell to the ground and Newmon robbed him of his billfold and money. The other defendants were astride Smith and tore his trousers partly off in taking his billfold. Someone living nearby turned lights on and the defendants fled.
Phillips revived Smith and they notified the police of the robberies. Smith was unable to identify any of the defendants, but Phillips positively identified all of them. He says he knew them that night but did not give their names to the police. On the following Monday, while working at a liquor store, Phillips saw Maxwell and Stokes at a nearby doughnut shop. He had the police notified. Maxwell’s brother was arrested by mistake but was soon released. All three defendants were arrested.
At the police station, Newmon told Phillips that he was the one who robbed him.
Each of the defendants relied on an alibi and denied any participation in a robbery. Newmon admitted confessing his guilt but says he did so because of threats.
We agree that there were separate robberies, but we hold that all participated in each of them. All who are present at the commission of a robbery, rendering it countenance and encouragement, ready to assist should the necessity arise, are hable as principal actors. To be criminally responsible, the accused need not have taken any money from the victim with his own hands, or actually participated in any other act of force or violence; it is sufficient if he was present, aiding and abetting, or ready and willing to aid if necessary. Moody v. State, 46 Tenn. 299; Flippen v. State, 211 Tenn. 507, 365 S.W.2d 895. By T.C.A. Sec. 39-109, aiders and abettors are deemed principal offenders and are punished as such.
The defense of alibi presents an issue of fact to be determined by the credibility of the witnesses and the weight to be given their testimony. Its weight is the province of the jury. Turner v. State, 187 Tenn. 309, 213 S.W.2d 281; Smith v. State, 205 Tenn. 502, 327 S.W.2d 308. By their verdicts the jury rejected the defense of alibi in these cases, and from a careful re
The defendants have failed to carry the burden of showing that the evidence preponderates against the verdicts and in favor of their innocence. The jury believed Phillips’ testimony that they beat and robbed him and Smith, and it did not believe the defendants. In accordance with established and well-founded rules of trial and appellate procedure, we must adopt this evaluation of credibility as our own. Bolin v. State, 219 Tenn. 4, 405 S.W.2d 768.
The defendants attack the admissibility of Newmon’s confession and the manner in which the prosecution used and referred to it in its introduction into evidence and argument to the jury. Only Stokes’ motion for new trial raises this issue. It is not available to those defendants who did not incorporate this question in their motions for new trial. Wilkerson v. State, 208 Tenn. 666, 348 S.W.2d 314; Kirby v. State, 214 Tenn. 296, 379 S.W.2d 780; Floyd v. State (Tenn.Cr.App.) 430 S.W.2d 888; Rule 14(5) of the Tennessee Supreme Court and of this court.
The trial judge held a hearing out of the presence of the jury, at which time Jimmy Dunagan, a detective of the Memphis Police Department, testified that he gave Newmon the warnings of constitutional rights required by Miranda. The court held the confession admissible as to Newmon but also ruled that the officer could not say what Newmon said about his codefendants. He further ruled, without objection, that the names of
The arguments to the jury are not in the record and may not be considered. Argument claimed improper cannot be considered when it does not appear in the record. Graham v. State, 218 Tenn. 453, 404 S.W.2d 475.
We have considered all assignments of error and find them without merit.
The judgment of the lower court is affirmed.