Lead Opinion
By his duly perfected appeal in the nature of a writ of error to this Court, the defendant challenges the validity of his Monroe County Criminal Court conviction of unlawful possession of legend drugs and the jury-assessed sentence of one year and one day in the State Penitentiary and a $1000 fine, which the court approved by еntering judgment accordingly.
About 2:00 a.m. on March 27, 1970 a Sweetwater policeman found the defendant slumped over the steering wheel of his truck which was parked in front of an all-
As a witness in his own'behalf, the defendant testified about being arrested and that he transferred the capsules from his pocket to his socks enroute to the jail because “I had been booked for having pills once and I was scared that they would book me again for having them on me again”; that “I got them through a drug store through a doctor’s prescription”; that he had a prescription from Dr. Miller in Madisonville and one from a doctor at Morristown; that he had Dr. Miller’s prescription filled at the Wilson Drug Store in Madisоn-ville, and that he got these particular capsules on a prescription from a drug store in Morristown; that he could not remember the name of either the prescribing physician in Morristown or the drug store there where he got the prescription filled; that his prescriptions were retained by the store filling them; and that thе bottle in which he had the capsules was a “chew gum bottle” which was not the original container.
The defendant called the proprietor of the Wilson Drug Stоre in Madisonville for the purpose of showing that he had obtained similar drugs there under a pre
We must reject the Assignments contending that the search of the defendant was illegal and that the fruits of the seаrch — the capsules of drugs — was inadmissible. He testified that these capsules were his and gave a detailed explanation of his possession in an effort to establish his contention that he purchased the drugs under a doctor’s prescription and that his possession thereof was not unlawful. By so testifying the defendant waivеd all objections to the search and seizure of the drugs and their admission in evidence. Lester v. State,
In considering the defendant’s Assignments challenging the sufficiency of the evidence to warrant and sustain the verdict of the jury, we are bound by the well-settled law in this State that a guilty verdict by the jury, approved by the trial judge, accrеdits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State. Such a verdict removes the presumption of thе innocence of the accused which stands as a witness for him until he is convicted, and raises a presumption of his guilt upon appeal, and he has the burdеn upon appeal of showing that the evidence preponderates against the verdict and in favor of his innocence. Gulley v. State,
The cruciаl question in this case was and is whether the defendant’s possession of the proscribed drugs was unlawful. Manifestly, this conviction rests entirely upon circumstantial evidence. However, considering the totality of the circumstances shown in this record, including the defendant’s inability to name the Morristown prescribing physician and the Morristown drug store where he claimed he obtained these drugs by prescription, his unexplained transfer of the drugs from the alleged original container to a “chew gum bottle,” his carrying some of the capsules loose upon his person, and his concealment of all the drugs in his socks after he was arrested, we are of opinion that the proof fully meets the test required by the law in circumstantial evidence cases.
The settled law in this State is that to warrant a criminal conviction upon circumstantial evidence alone, the evidence must be not only consistent with the guilt of the accused but it must also be inconsistent with his innocence аnd must exclude every other reasonable theory or hypothesis except that of his guilt, and it must establish such a certainty of guilt of the accused as to convince the mind beyond a reasonable doubt that he committed the crime charged. Pruitt v. State,
In a case resting upon circumstantial evidence alone, it becomes necessary for this Court to determine, upon the faсts and circumstances shown in the proof, whether or not it is brought within the circumstantial evidence .rule. Pruitt v. State, supra; Jamison v. State,
The judgment of the trial court is here modified by vacating that portion thereof which erroneously rendered the defendant infamous. TCA sec. 40-2712. As thus modified, the judgment of the trial court is affirmed.
Dissenting Opinion
(dissenting).
I must respectfully dissent.
The defendant in this case explained where he lawfully obtained the drugs and why he hid them. He had both a legal right to purchase the drugs and a right to hide them. The burden was upon the State to prove that he
There can be no presumption of guilt in a criminal prоsecution in this State. The inferences suggested by the furtive manner in which the defendant sought to conceal his possession of drugs could not, and did not, in my opinion ovеrcome both the presumption of innocence and his clear, logical, credible, and most importantly, undisputed testimony of how he came into legal possession of the medication. Or, as the Supreme Court stated recently :
“As to presumptions, it is settled law that while they may be indulged in criminal cases, this cannоt be done to deprive the defendant of the presumption of innocence as was done in this case.
“In Marie v. State,204 Tenn. 197 ,319 S.W.2d 86 , presumptions are discussed, and it is said that a рresumption is a substitute for evidence which, in the absence of direct evidence conflicting, requires as a matter of law that a certain fact cоnclusion be accepted or proved by the jury. In this case, Underhill’s Criminal Evidence, 5th Ed., is quoted with approval as saying:
‘ * ‘ So, though the decisions are not harmoniоus, the better and more reasonable view is that the law will not countenance any presumption, which by overcoming the presumption of innocence will cast the burden of proving his innocence upon the defendant. ’ Sec. 43, p. 66.” Liming v. State,220 Tenn. 371 ,417 S.W.2d 769 .