*1 Perry SULLIVAN, Plaintiff-in-Error, Glenn Tennessee,
STATE Defendant-in-Error. Appeals
Court of Criminal of Tennessee. 14, 1974.
Feb. by Supreme
Certiorari Denied Court July 29, 1974.
Thе involved in each indictment automobile, was an them a Chevrolet Corvette stolen November Hayas, 1972 from Michael a other 1966 Chevrolet Chevelle stolen November Wayne Qualls. 1972 from On Novem- 5, 1972, upon ber information that two au- being stripped, police tomobiles were of Soddy-Daisy, chief Tennessee and other policemen went to аn abandoned house Mountain, Mobray by junk surrounded cars. There he defendant and his brother, Reynolds, Kenneth Rey- Clarence nolds and a man named Abies. As the approached, chief the defendant walked be- tween cars two that Abies and the two Reynolds on, working men were and went steps toon police of the house. The chief told the defendant he wanted to leave police temporarily cars there and asked long him how he would be to which defendant, hands dirty whose were greasy time, replied did not Brown, Chаttanooga, plain- R. for Jack know. tiff error. Leaving police parked there, cars Pack, Gen., Atty. David M. B. John chief and police the other officers walked Haglеr, Gen., Nashville, Jr., Atty. Asst. nearby down through a woodland for about Evans, Franklin Asst. Groves and Thomas a mile or mile and half and found Gen., Attys. Chattanooga, Dist. for defend- partially Corvette and a 1966 Chеvelle ant error. stripped. Parts of the Corvette were found in Reynolds’ Clarence car. The OLIVER, Judge. Ford, Corvette’s motor was found beside a parked covered with brush and аcross the OPINION Reynolds road from and the oth- Represented by counsel, retained al- er men working. In a 1965 Ford though indigent by declared parked about 50 feet from the abandoned subsequent to trial because he was unable house, were, found the Corvette’s transmis- pay preparation transcript, for sion, wheel, steering covers, valve car- Sullivаn was convicted buretor, alternator, speaker. and stereo $100, property, in excess in two valued the same Ford the n together, cases tried sen- dent-puller device known which can imprisonment tenced to the minimum used to remove the lock mechanism penitentiary years for three in each from automobiles. Two tool boxes shown case. 39-4217. T.C.A. § have been taken from the Corvette were found in a 1964 Comet. The Chevelle’s By Assignments his first three and sixth motor was found in the trunk of deserted as- of Error the defendant makes the usual The car. switch mechanism had been re- sufficiency of the evidence sault moved from both the and the Corvette the verdict of warrant jury. Chevelle. knew necessary thаt the defendant to show other men
The defendant and the goods were stolen.” State gone and the officers chief other Veach, 412, 456 the woods. regarding The law connеction defendant denied *3 by the ac- goods possession of the stolen pos- removing the cars or or stealing with Receiving Sto- in 76 parts ei- cused stated sessing any or from .them C.J.S. 6b: to len ther of that went Goods them. He testified he § to fix transmis- the abandoned house the satisfy the “In to order support he had bor- sion on car which accused, ac- by pоssession of the goods rowed; of the borrowed that owner tual, possession physical, or manual car, he him he car told could fix poten- or necessary, constructive but transpor- got use own could it until he his suffi- possession or will be control tial ; tation he transmis- removed a rubber cient; necessary that accused is it nor support and sion а 1953 or 1954 Ford from property. actually seen the should have putting after into the borrowed 1964 left Nevertheless, must have had accused Chevelle, and was there over such сontrol hour; he not know stolen did automo- posses- to constructive least amounted be place biles to that physical ; if have' actual sion he does not stripрed; that he had been down never must have possession property, he house; near the woods abandoned dominion over of control or a measure got he other men were there when has such constructive custody. He there, cars; working on and were their in the goods are possession Jimmy helping that his Abies brother he has over whom рossession of someone car, put engine a 1966 in Abies’ Chevrolet control, being and direction for the time he they which took a Chevrolet or as his authorized servants such ,tо day towing be- Abies that location the himself, so that the or agents, the thief and Abies he knew He admitted fore. he forthcoming or- goods be will car reputation being Reynolds had thе ders, his direction and also where thieves. subject to deposited place goods are control, they concealed detective, or where are deрartment pros- A his sheriff’s his by others with witness, premises arrived the scene his ecution who on on knowledge or consent.” policemen while the chief and his in rebuttal testified only 1963 Ford hе saw there was a station only evidence connect Here did edge wagon of the woods and cars was with the stolen ing the defendant appear jacked up for the have been a mile or mile seen about that he was sup- purpose removing transmission they were found. a half from where port. As he the defendant said took ever thаt he evidence whatever There no or support a transmission 1953 1954 off a possession or any actual constructive Ford. parts or any therefrom or of the vehiclеs any sought to exercise that he exercised Receiving concealing stolen The de either. or dominion over control are and distinct offenses. guilty, this record may but fеndant 546, State, 420 Deerfield v. S.W. prove A it. ver evidence to devoid of 649; 39-4217; 2d T.C.A. 76 § C.J.S. alone jury may be based dict of a 7, Receiving p. Goods Stolen § or a mere speculation guess, сonjecture, 39, Gill, 216 Tenn. possibility. Hayes v. “In order to sustain a conviction for 213; 174 v. proof of Rucker property, besides 390 S.W.2d 208; 569, Evensky v. 129 or con- Tenn. theft defendant’s actual 24, Tenn.App. 350 S. thereafter, Memphis, City 49 possession it is structive soon 76; Daniels, in not W.2d Williams v. error 112, when, App. argument, mistrial in his final Attorney pointed District to Jerry General Unquestionably has borne Abies in the cоurtroom and commented on demonstrating burden of here that the evi the fact that he was not called as a wit- preponderates against dence the verdict de- promptly ness. The court sustained favor of his innocence. Jamison fense counsel’s and instructed the 768; 416 S.W.2d altogether. the comments Tenn.Cr.App. Webster v. 425 S. 799; Finally, unfounded, equally W.2d Chadwick v. 1 Tenn.Cr. App. contention that trial court commit recharging ted error after *4 There is no merit in the defend had erroneous verdict. When proof ant’s contention there wаs nó jury open first returned into court alleged offenses occurred on November announced that it had defendant 5 as set out in the indictments. The guilty receiving and con Besides, rеcord refutes that insistence. cealing under each indict settled rule is that the offense must be a receiving ment. There was count proved prior to have been to thе each indictment. The court instructed finding of the indictment and within the jury guilty that it could find the defendant specified by any applicable time statute of under offense each indictmеnt limitations; and, except special where and instructed them to deliberate further. date is or time is essential of the essence if proof Even that the established offense, the time commission pos defendant received and took into of the offense is averred the indictment guilty session the stolen vehicles with material, proof not is cоnfined to not knowledge purpose, and fraudulent as to charged. the time Shadden v. which, proof, above there was no Tenn.Cr.App., and authori S.W.2d obviously the trial court’s aсtion was ties therein cited. possibility pyra to avoid the of erroneous miding punishment. This was for the complaint baseless Thus, benefit of the defendant. even mis erred in erred, judge the trial and we hold he did prosecution trial when the examined him not, fundamental defendant previous convictions for violation of prejudiced by an error which does not liquоr mis Declining laws. to enter a injure advantage him or which to his trial, the court did defense coun benefit. Corlew v. 181 Tenn. sel’s and instructed disregard question and the answer. judgment is re- The error thus cured. Edwards v. versed this case remanded thereto For for a new trial. presumption there is a does not to the court’s instructions consider inadmissible evidence. O’Brien WALKER, J., P. conсurs. GALBREATH, Judge. same reasons For the I cited, concur and recommend that mer nolle same authorities last there is no prosequi be entered the State. the trial the defendant’s claim that