Campbell v. State

OPINION

MITCHELL, Judge.

James Campbell, the defendant below, has appealed a conviction of petit larceny and a sentence of one year in the state penitentiary from the Criminal Court of Campbell County.

The errors assigned by the defendant are as follows;

(1) That the honorable trial court erred in overruling his motion for a new trial as to the sufficiency of the State’s proof to convict him of the offense charged in the indictment.

(2) That all of the evidence introduced at the trial of this case preponderates against the guilt of the defendant and in favor of his innocence as to the crime alleged in the indictment.

(3) That the honorable trial Court erred in failing to sustain defendant’s motion to dismiss at the close of the State’s proof and at the close of all the proof upon the ground of fatal variance between the indictment and the proof.

(4) That the honorable trial Court erred in overruling the defendant’s motion for a new trial on the ground of fatal variance between the indictment and the proof.

The first count of the indictment charged James Campbell with burglary in the second degree by breaking and entering the dwelling house of Flora Huckaby Hobbs in the daytime with intent to commit larceny. The second count charged larceny of a radio, value $39.00; groceries, meat and canned foods, value $15.00; two cushions, value $3.00; and one record player, value $89.00; of the goods and chattels of Flora Huckaby Hobbs.

On the trial the proof showed that Mrs. Flora Huck-aby Hobbs lived with her brother and her children in her dwelling house on February 27, 1968. That she was away from the house for awhile that day. She locked the door when she left. That she rode to Junior Giles house in Mr. Gunter’s car. That she left Junior Giles house in the car with James Campbell. That he drove to the red fight where James Campbell got out and left it under the red fight. That he went into one store and then into another store. That the officers arrested her and took her to City Hall. That she got home about 6:30 or 7:00, where she discovered her house had been broken into, “the door was kicked open, busted, the whole panels was kicked out of it.” That the General Electric clock radio was gone, value at $39.00. Mrs. Hobbs stated that a record player was gone, that it did not belong to her but that it was taken from her house. That it belonged to Mrs. Mars, that three boys had brought it to her house “sometime” like a week before that. She stated that her cushions were worth $3.00, were purple and had fringe around them and had been given to her by her daughter, and groceries worth $15.00 were gone.

Mrs. Hobbs then went to her daughter’s house where her children were and then to where her daughter worked and then she went to James Campbell. That she told James Campbell, “I told him I wanted my stuff” and he said, “I’ve not been in your house.” “I said don’t tell me that cause I know you have.”

Mrs. Hobbs then went to City Hall where she reported the burglary and loss of the radio and record player to Mr. John Dossett. That he looked at Mr. Gaylor and said “let’s go.” In about five minutes Mr. Dossett and Mr. Gaylor came back with the record player and in a couple of weeks brought her radio in, that they had it in court in the Judge’s office at the preliminary hearing, that the Judge let her take her radio back home, that she had the papers there to show that her daughter bought the radio in Columbus, Ohio and gave it to her for a Christmas present. Mrs. Hobbs testified she talked to the defendant Campbell and he was wanting her “not to come to court” and I said “that wouldn’t bring my stuff back.”

On cross examination, Mrs. Hobbs testified she did not suspect the defendant left her in the car under the red light on purpose so she could get arrested. That she did not get mad at the defendant until she missed her property. That the defendant had left her there in the car under the red light on Main Street, in the traffic. When asked if she was drunk when arrested, she answered that she had drunk some moonshine whiskey in the defendant’s car. That the whiskey came from Junior Giles.

Mrs. Hobbs also testified on cross examination that she had since learned that the record player was stolen but she did not know that at the time the three boys Kermit Komer, Avery Ivey and Philip Ivey brought it to her house.

John Dossett, city policeman, testified that he knows the defendant James Campbell and the prosecuting witness Mrs. Hobbs. That Mrs. Hobbs came to City Hall February 28, 1968, and made complaint about her house being broken into the day before and a record player, value $89.00; a GE clock radio, value $29.00; groceries, $15.00; and cushions $3.00; were missing from her house. That a few minutes later the same day, he located the record player which he got from Glen Hatmaker who operates a taxi cab stand, Mrs. Hobbs identified the record player and claimed it for her own. That later, about March 4, he found the GE radio which he recovered from Elmer Allen who worked at B and M Beer Tavern.

Glen Hatmaker, age 54, a cab driver testified for the State that city policeman John Dossett, about February 28, 1968, came and inquired about a record player and that he let Mr. Dossett have the record player in question, filed as exhibit one. Mr. Hatmaker further testified that the day before the officer came looking for the record player, that James Campbell came alone in his car to the cab stand and sold or pawned the record player to him for $5.00, that it was in the trunk. That this was in LaFollette in Campbell County.

Mrs. Ethel Mars testified for the State that the record player belonged to her, that she had bought it at Zebricks in Nashville and that it was taken from her house the night of March 24, 1968.

This conflicting testimony by Mrs. Mars concerning the date of March 24, was apparently reconciled by the jury as an honest mistake about the date because city policeman John Dossett testified positively that on February 28, Mrs. Hobbs complained of the burglary of February 27 and described the record player. That within a few minutes he located the record player in the possession of Glen Hatmaker the cab driver and obtained possession of it and that Mrs. Hobbs identified it, Mr. Hatmaker corroborated Mrs. Hobbs and Policeman Dossett that around February 28, 1968 James Campbell brought the record player to him and pawned it to him and that the following day city Policeman Dossett came and took it.

The State closed its case, the defendant did not testify and did not offer any proof, and closed his case. The defendant had made a motion, at the close of the State’s proof, to dismiss the case. Again at the close of the proof the defendant renewed his motion to dismiss the case upon the ground of a fatal variance between the indictment and the proof, the trial judge overruled the motion and the defendant excepted.

Assignments of error 1 and 2 go to the sufficiency and preponderance of the evidence.

The rule which we must abide by is that this court will not reverse a criminal case on the facts unless it is shown that the evidence preponderates against the verdict and in favor of the innocence of the defendant. Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385; Mahon v. State, 127 Tenn. 535, 156 S.W. 458; Turner v. State, 188 Tenn. 312, 219 S.W.2d 188; Batey v. State, 191 Tenn. 592, 235 S.W.2d 591.

The verdict of guilty approved by the trial court accredited the testimony of the witnesses for the State, and established their credibility, Ivy v. State, 197 Tenn. 650, 277 S.W.2d 363, which displaced the presumption of innocence, raised a presumption of guilt and put on the accused the burden of showing the evidence preponderates against the verdict and in favor of his innocence. Ivy v. State, supra; Batey v. State, supra; Turner v. State, supra.

The defendant James Campbell was found in the unexplained possession of a stolen record player of the value of $89.00 which he sold or pawned to the cab driver Hatmaker for $5.00. The circumstances are not only consistent with guilt but inconsistent with innocence, and give rise to the inference that he is the one who stole the record player.

In Peek v. State, 213 Tenn. 323, 328, 375 S.W.2d 863, it was held that:

“First, in this State we follow the generally approved rule that proof of possession of recently stolen goods gives rise to the inference that the possessor has stolen them. 2 Wharton, Criminal Law, 31, sec. 411 (1954); Hughes v. State, 27 Tenn. 75, 76-77 (1847); Cook v. State, 84 Tenn. 461, 464, 1 S.W. 254 (1886). A good statement of this rule is found in Shaw v. State, 1 Tenn.Cas. 77, 78 (1858), where the Court said: 'Greenleaf sec. 34, states the rule to be, “That the possession of the fruits of crime recently after its commission” raises a presumption of guilt, prima facie only, of course. This single fact, if unexplained by direct evidence, the attending circumstances, good character or otherwise, will be conclusive.’ ”

Assignments of error 3 and 4 raise the question of the variance between the allegation in the indictment and the proof, about ownership of the stolen record player.

The evidence shows that the record player actually belonged to Mrs. Ethel Mars but that it was in the possession of the prosecutrix Mrs. Flora Hobbs in her dwelling house with the other items of her personal property which were stolen when her house was burglarized.

In Watson v. State, 207 Tenn. 581, 341 S.W.2d 728 our Supreme Court held as follows:

“The only error assigned by Watson on this, his appeal from a conviction of armed robbery, is that

‘the Court erred by overruling his motion for a directed verdict of not guilty, because the state failed to prove that the money taken in the robbery was the property of Ruby E. Witt as alleged by the indictment.’

Mrs. Witt testified that she did ‘operate a grocery store’ and had in her employ ‘I only have one boy.’ While she was alone in this store on the occasion in question, the defendant entered and, after attacking and cutting her with a knifelike instrument, he forced her to take $135 from the cash register and place it in his pocket. She was then forced to lie on the floor of the store during his departure.

(1) Assuming, in so far as it applies to this case, that the above undisputed evidence is insufficient evidence of absolute ownership by Mrs. Witt of this money, it is in that event, however, proof of the possession by her as agent or bailee of the owner.

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* * It is well settled, that whenever a person has a special property in a thing, or holds it in trust for another, the property may be laid in either. As for instance, goods left at an inn, or entrusted to a person for safekeeping, or to a carrier to carry.’

In Jones [& Bass] v. State, 166 Tenn. 102, 104, 59 S.W.2d 501, this Court quoted approvingly from 17 R.C.L., page 72, as follows:

‘The exact state of the title of stolen property is of no particular concern to the thief, except that it must have been in someone else; hence evidence of possession is ordinarily sufficient proof of ownership; and this is true although the one in possession may have held the property as bailee, trustee, or otherwise having only a special interest, and not a general ownership of the property.’

The rule of law just stated, and so well established, illustrates the fact that if this indictment had charged Watson with larceny only, then the allegation of ownership of this money in Mrs. Witt would have been sufficient, if it be assumed that the actual ownership was in some other person. This is because, in any event, she was in possession as agent or bailee of that owner.

(3) ‘Robbery is but an aggravated larceny.’ Crews & Crenshaw v. State, 43 Tenn. 350, 353. Therefore, any allegations of ownership of the property stolen which is sufficient under an indictment for larceny so as to not be a variance or is sufficient proof of the allegation of the indictment is, by the same token, sufficient in an indictment for robbery.

(4) There is, therefore, no variance, as a matter of law, between the allegation of the indictment as to ownership of this property being in Mrs. Witt and the proof that she was in possession thereof as agent or bailee of the true owner, if that owner be some other person than she. Such proof is sufficient to satisfy the allegation of the indictment that she was the owner.”

We are of the opinion that there is no fatal variance between the allegation in the indictment and the proof. That ownership may be alleged to be in the person who is in possession of the property at the time it was stolen.

The assignments of error are overruled and the judgment of the trial court is affirmed.

WALKER, P. J., and HYDER, J., concur.