Morelock v. State
216 S.W.2d 5
Tenn.
1948
Check Treatment
Me. Justice Bailor

delivered the opinion of the Court.

Dеfendant appeals from conviction of receiving stolen propеrty and sentence to imprisonment in the penitentiary for three years.

The defendant did not testify and offered no evidence in defense.

The single question presеnted on the appeal is whether evidence introduced hy the State is sufficient to support the conviction. On the night of February 20, 1948, a Buick automobile ran off Highway 81 and was wrecked when it struck a light pole. The defendant and another unidentified ‍‌‌​‌​​​‌​‌‌‌‌​​​​‌‌​‌‌​‌​‌‌​‌​​‌‌​‌​​​​‌​​​​​​​‌‍man were in the car when pedestrians arrived at the wreck. From the fact that bоth passengers had been thrown from their seats when the car struck the pole, it was not detérmined who had been driving, and it was proved that defendant was not the owner оf the car.

Five electric pumps were found in the wrecked automobile, twо of them on the back seat and three in the trunk. These pumps had been stolen а short time before the wreck from the warehouse of a corporatiоn in Kingsport. Each pump weighed more than 100 pounds, and from the fact that the pumps had been removed from the warehouse through a window five feet above ground level, and that the cartons in which the pumps were packed were undamaged, it was reasonably deduced and argued that one man alone could not have committed the robbery, and *480that more than one was involved in the criminal enterprise.

Admitting the effect of proof that the acсused is in possession of goods recently stolen (Wilcox v. State, 50 Tenn. 110; Poe v. State, 78 Tenn. 673, 679), the question here is whether the Stаte proved that the defendant was ever in actual or constructive possession of the pumps. He was drunk at the time of his arrest and there is no direct evidеnce that he knew that the pumps were in the car, or that he ever knew that thе pumps existed. That ‍‌‌​‌​​​‌​‌‌‌‌​​​​‌‌​‌‌​‌​‌‌​‌​​‌‌​‌​​​​‌​​​​​​​‌‍the proven fact that two of the pumps in sealed cartons were on the hack seat, does not charge him with knowledge that the cаrtons contained pumps, is sufficiently shown by testimony of one of the officers, who said that he opened one of the cartons because he thought it contаined whisky.

Officer Duncan testified that just before he arrested defendant, the latter sаid to those standing by the wreck, “Now remember you don’t know a damn thing.” To hold that this remark had any connection with the stolen pumps is mere reckless imagination.

“The genеral rule that the possession of stolen property is evidence of guilt is limited by the rule that 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 рossession by the accused.” 17 R. C. L., Larceny, sec. 77, p. 73; People v. Hurley, 60 Cal. 74, 44 Am. Rep. 55; State v. Drew, 179 Mo. 315, 78 S. W. 594, 101 Am. St. Rep. 474; Lehman v. State, 18 Tex. App. 174, 51 Am. Rep. 298; Note 35 Am. St. Rep. 715.

The statute (Code 10928), under which ‍‌‌​‌​​​‌​‌‌‌‌​​​​‌‌​‌‌​‌​‌‌​‌​​‌‌​‌​​​​‌​​​​​​​‌‍dеfendant was indicted, prohibits “receiving stolen goods.” An *481actual or constructive possession or control is an essential element of reception and must be proved. Wharton Criminаl Law, 11th Ed., sec. 1238, p. 1553 (Vol. II).

The possession of stolen property to warrant an inference of guilt must be personal, exclusive and unexplained. State v. Jennings, 79 Iowa 513, 44 N. W. 799; State v. Warford, 106 Mo. 55, 16 S. W. 886, 27 Am. St. Rep. 322; Matlock v. State, 25 Tex. App. 654, 8 S. W. 818, 8 Am. St. Rep. 451; Jackson v. State, 28 Tex. App. 143, 12 S. W. 701; Id., 28 Tex. App. 370, 13 S. W. 451, 19 Am. St. Rep. 839.

Apparently, the only recent Tennessee case, where ‍‌‌​‌​​​‌​‌‌‌‌​​​​‌‌​‌‌​‌​‌‌​‌​​‌‌​‌​​​​‌​​​​​​​‌‍the sufficiency of possession is considered, is Edmondson v. State, 151 Tenn. 214, 268 S. W. 881. There, the subject matter was an automobile body which had been concealed in a wooded part of Davidson County. Conviction for reсeiving stolen goods was upheld because it was proved that the defendants had known where the automobile body was concealed and had controlled and constructively possessed it by executing a bill of sale for it to a prospective purchaser.

In the old case of Bedford v. State, 24 Tenn. 522, a conviction was reversed where circumstantial evidence of control and constructive possession were much stronger than the evidence of defendant’s possession in the record before us here.

We find that evidence of defendant’s possession or control of the stolen merchandise is entirely lacking, and the failure to prove actual or сonstructive possession ‍‌‌​‌​​​‌​‌‌‌‌​​​​‌‌​‌‌​‌​‌‌​‌​​‌‌​‌​​​​‌​​​​​​​‌‍of the stolen pumps, and so their reception by thé defendant, necessitates a reversal of the judgment and the remand of the case for a new trial.

All concur.