Myers v. State

OPINION

RUSSELL, Judge.

Bobby G. Myers and Samuel Nelson Nunley appeal in error their convictions for concealing stolen property of a value in excess of One Hundred Dollars ($100.-00) and resultant penitentiary sentences of not less than three (3) nor more than five (5) years.

On July 30, 1968, a 1967 Chevrolet Cá-maro automobile belonging to a Mr. Robert Benns of Hamilton County, Tennessee, was stolen from a parking lot at a radio station in Hamilton County where Mr. Benns worked. On August 2, 1968, Mr. Benns went to Tracy City in Grundy County and identified a burned carcass of his automobile. The car had been stripped and certain items of personal property, including a flashlight marked W F L I Radio, had been taken from the trunk.

On August 7, 1968, T.H.P. Trooper Ronald Baggenstoss received reliable information that a felony was being committed in a wooded area of the mountainous region around Tracy City. Apparently the information had to do with stolen automobile tires. He and one Ned Geary proceeded to the area and heard noises apparently being made by people in the woods. Rather than proceeding, they left and got Sheriff Winton and Deputy Hargis to close in with them. The officers proceeded on foot down an old road, past signs of past car strippings, deep into the woods. They finally came upon a small clearing, wherein was a pick-up truck.. Plaintiff-in-error Myers was in the truck, which was his; and Nunley was on one side of the truck and one Alvin Seagroves on the other. High weeds surrounded the truck, so that the officers were within about twenty (20) feet of it before they could clearly see it and the three men. All three men were known by the sheriff. The truck had wooden side panels and was loaded with automobile parts. Visible without search were tires and an automobile air conditioner radiator. A “come-along” hoist was seen affixed to a tree limb at the scene.

Sheriff Winton called to the subjects to hold it and that they were under arrest. One of the men said, “Let’s go, boys”, and Nunley and Seagroves fled the scene. Myers was arrested at that time, and a subsequent inspection of the truck disclosed that, among many other items, the engine from Mr. Benns’ stolen car and the flashlight inscribed W F L I Radio were therein. It is for the concealing of those stolen items at that time and place that all three men were convicted. Seagroves has not appealed. Myers and Nunley put on no proof.

Both contend, in their respective assignments of error, that the verdict of the jury is contrary to the law and the evidence and that the evidence does not support the verdict. They specifically rely upon an alleged failure of the State to prove guilty knowledge that the property had been stolen. We find guilty knowledge fully established circumstantially. There is no question but that these men were in possession of recently stolen property, and they offered no explanation. The unexplained possession of recently stolen property raises an inference that the possessor stole the property. Peek v. State, 213 Tenn. 323, 375 S.W.2d 863. This inference has been applied recently to infer guilty knowledge where receiving stolen property is concerned. Tackett v. State, Tenn., 443 S.W.2d 450. Such an inference logically also attaches to such unexplained possession of recently stolen property when the charge is concealing.

But there is much more circumstantial evidence of guilty knowledge. The practice of stealing automobiles in East and Middle Tennessee and carrying them to the wooded mountainous area involved here to be stripped and burned is so widely practiced and generally known that we can acknowledge judicial notice of it. These men were in that area for no imaginable legitimate purpose, equipped with a pick-up truck with concealing solid sideboards, with a hoist of a type commonly used for lifting automobile engines installed to a tree there, with automobile tires and the radiator for an automobile air conditioner readily visible, and with the truck bed loaded with miscellaneous automobile parts. To completely foreclose the question of guilty knowledge on his part, Nunley fled the scene when arrest was attempted. No other reasonable hypothesis except that of guilty knowledge is suggested or supported by this evidence.

We therefore overrule the assignments of error questioning the legal sufficiency of the convicting evidence. And this also disposes of the assignments contending that it was error for the trial judge to overrule their respective motions for directed verdicts of acquittal. Since the evidence is found to be sufficient to sustain the convictions, it is equally sufficient to support the action of the trial judge in denying motions for directed verdicts of acquittal.

Plaintiff-in-error Myers assigns as error the admission into evidence of items seized in the truck. He contends that his war-rantless arrest was unlawful and without probable cause, and that the evidence obtained pursuant thereto from the truck was inadmissible.

We find this assignment to be without merit. An officer may arrest a person without a warrant, upon probable cause for believing that a felony has been committed and that the person committed the felony. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Thompson v. State, 185 Tenn. 73, 203 S.W.2d 361. What constitutes probable cause depends upon the facts and circumstances of each case. We hold that the State’s evidence in this case clearly supports a showing of probable cause and that the search and seizure of the stolen property was not in conjunction with an unlawful arrest, but rather a lawful one. And in that context, it seems established that this motor vehicle, due to its mobility, could be searched without a warrant. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. In that case the United States Supreme Court in quoting from Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 said:

“ ‘The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.’ ”

Here, we observe from the photographs in evidence, that it was rather obvious, even without searching, but by merely looking into the bed of the pick-up truck, that it was filled with such an assortment of automobile parts that they practically shouted the fact that they were the fruits of car stripping. It remained only for the officers to determine from whom the various parts were stolen. Certainly they had the right to impound this property as evidence. We hold the seizure to have been legal and the introduction into evidence of the fact of Mr. Benns’ stolen engine and lantern being therein proper.

Finally, Nunley assigns as error the fact that the trial judge ordered the District Attorney General to make a closing argument to the jury after all defendants had chosen to waive their arguments. The State’s opening argument was made by the Assistant District Attorney General. Before he spoke one defendant’s lawyer said that he would argue, one said that he’d wait and see, and the third said that he would not. The Court then announced that those who wanted to argue could do so, and the District Attorney General could close. However, after the opening all three announced that they’d waive their argument, and objected to further State argument. The District Attorney General was fearful that it would be erroneous for him to close; but the trial judge felt that defense counsel had misled the Court and the District Attorney General and that this was no't proper, and he ordered the District Attorney General to make a closing argument. What was said in either of the State’s arguments does not appear.

Generally, the State has the opening and closing arguments. The closing argument is limited to a rebuttal of what has been argued. But the trial judge has a discretion in controlling matters of argument; and where, as here, the Attorney General would have been denied a chance to personally argue because he had been told that a defense argument would be made before he assigned the opening argument to his assistant, we hold that the trial judge did not abuse his discretion. Since the content of the argument does not appear in the record, nor was any part of it objected to, this assignment could not rise above the status of harmless error in this case. T.C.A. § 27-117.

We affirm these convictions.

OLIVER, J., concurs.