Ayers v. State

463 S.W.2d 155, 3 Tenn. Crim. App. 456, 1970 Tenn. Crim. App. LEXIS 403
CourtCourt of Criminal Appeals of Tennessee
DecidedDecember 10, 1970
StatusPublished
Cited by1 cases

This text of 463 S.W.2d 155 (Ayers v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ayers v. State, 463 S.W.2d 155, 3 Tenn. Crim. App. 456, 1970 Tenn. Crim. App. LEXIS 403 (Tenn. Ct. App. 1970).

Opinion

MITCHELL, Judge.

OPINION

Eddie Ayers, who will be referred to as the defendant or by name, indigent and represented by the Public Defender, has appealed this conviction of robbery, and a sentence of five years in the penitentiary from the Criminal Court of Shelby County, Tennessee, Honorable John P. Cotton, Judge presiding.

The defendant was tried on February 16, 1970 and convicted of robbery of Julia B. Marcus, the jury fixed the punishment at not more than five years, upon which the trial judge pronounced judgment. The motion for a new trial was heard and overruled and the defendant appealed and assigned errors.

According to the testimony of Mrs. Julia Marcus, wife of Marshall H. Marcus on the 4th day of October 1969, she had gone to Loebs Sundry Store to get a social security check cashed and to buy two. money orders. As she came out of the store a slender, straight-backed person who had an afro hair cut and irregular features brushed up against her and followed her about 30 feet. She got a good look at him. She pointed to the defendant in the courtroom and said “he’s right over there.” The record showed she pointed out the defendant in the courtroom. She stated the traffic was heavy, this man was following her and she was frightened. She crossed the street from Montgomery to Jackson, sat down on a bench beside an old colored woman and told her she was frightened, someone was following her. He came and got a little bit in front of her, she got up [156]*156and walked about six feet. She had the strap of her bag across her shoulder. He lunged at her, grabbed her bag and went around the house at Montgomery. He was violent, her shoulder was bruised for two weeks. “This is the bag worth $5.00.” She had $48.00 and two money orders, one for $10.70 and one for $5.00. He was beside her when he grabbed the purse. He just kept yankirig and yanking. She tried to fight him, and she was scared to death. She had a bag full of groceries.

He just ran like a deer. She had no doubt of the defendant, she was satisfied the defendant was the man who robbed her.

Mrs. Lily Wright on October 4, 1969 from her second story open window nearby at 1228 Jackson at corner of Jackson and Montgomery she saw the defendant following Mrs. Marcus and looked like he was going to do something to. her and she saw him grab her purse. “I saw them struggling and then saw the defendant run away.” She positively identified the defendant as the man who snatched Mrs. Marcus’ purse or bag. Mrs. Wright said she shouted, “don’t do that,” “don’t do that”. He got the purse. She heard Mrs. Marcus hollering “help me”, “help me.” It was a warm day, the sun was shining. She saw the defendant’s face, pointed him out in the courtroom. She had seen him on many occasions before, she knew his mother, “he’s known in the neighborhood as Peter Paul. They scuffled and he grabbed her purse and took out around my house.” Dave Wright, husband of Mrs. Lily Wright, testified they live at 1228 Jackson, that he has lived in Memphis since 1910. Their house is on the corner, one window faces Montgomery and one faces Jackson. He was in the back of the house, his wife was in the front room. He saw a man running back of his house. It was daylight but he did not know what time it was. He stated he recognized the person running, “we call him Peter Paul.” He pointed oiit the defendant in the courtroom. That he was sure of it. “It was Peter Paul, he ran right on by me, I saw him running with something in his hand in between the houses on Olympic”, but he did not know what he had in his hand. That he had known the defendant since he was a small boy, about 14 years, and he was positive it was the defendant that he saw.

Mose Banks, age 75 lives at 735 North Bellevue has been in Memphis about 60 years, testified that on October 4, 1969 about 5:45 P.M. he saw the defendant grab this lady and snatch her pockctbook. That was while he was standing on the corner of Jackson and Montgomery. It was daylight, a clear day. That when he first saw them, this man was walking behind the lady. “All at once l did sec him running and go slapping the pockctbook, and just snatched it till he got it loose from her.” When asked if he got a good look at the man who snatched the pockctbook, he answered, “sure, L know him, we call him Peter P<m<n” that he had known him since he was a kid, he pointed out and identified the defendant Eddie Ayers in the courtroom. “lie yanked it two or three times before he got it loose from her and she was just hollering, she was holding to the pockctbook just as tight as she could. She was hollering, help, help.”

The defendant testified and denied his guilt. He insisted he did not rob Mrs. Marcus, that he did not follow her to the corner of Jackson and Montgomery. That he did not have an afro hair cut, that he had only recently been discharged from the military service on September 10, and they would not allow him to wear an afro hair cut in the service.

The defendant contends he spent all of that day in the pool hall of Mr. Jesse Williams, and that at the time the State says the robbery was committed he was in the pool hall shooting pool. That at the time of her arrest and trial he denied his guilt and denied that he had anything to do with the robbery of Mrs. Marcus. That someone came into the poolroom and told him about the purse snatching. He testified that everytime a crime was committed [157]*157in the area, the police came looking for him, he was afraid they would arrest him for this incident, so he left the pool hall by the back door.

Jesse Williams testified he was the manager of Klondyke Billiard Parlor. That the defendant was in the pool room on the afternoon of October 4, 1969, that he could not specify what time it was. Mr. Williams said he had to leave the poolroom to go next door to the whiskey store to make a phone call, and he asked the defendant to watch the poolroom while he was gone. While he was on the phone in the whiskey store Mrs. Marcus the prosecutrix came in and called the police. Whe he returned to the poolroom he told the people there a woman’s purse had been stolen. The defendant was in. the poolroom when Mr. Williams returned. The defendant finished his game and asked to be let out the back door because he did not want to get in any trouble and did not want to become involved in anything.

The defendant has assigned errors as follows:

1. There is no evidence to support the verdict and the evidence preponderates against the verdict.
2. The trial judge erred in refusing to grant the defendant’s motion for a directed verdict at the close of the State’s proof and at the close of the defendant’s proof when the State had failed to prove venue in the cause.
3. The trial judge erred in allowing the identification testimony of the prosecuting witness, Mrs. Marcus, to be put in evidence since she could not identify the defendant in the lineup and admitted she could not identify him in the courtroom until prompted by other witnesses in the cause.

In considering the assignment of error number 1, we are bound by the following well-known rules:

“It is the duty of this Court to review the evidence and we may not reverse a judgment upon the facts unless the evidence preponderates against the guilt of the defendant and in favor of his innocence.”

“Our Supreme Court has said in Gann v. State, 214 Tenn. 711, 383 S.W.2d 32

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Related

Jones v. State
523 S.W.2d 942 (Court of Criminal Appeals of Tennessee, 1975)

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Bluebook (online)
463 S.W.2d 155, 3 Tenn. Crim. App. 456, 1970 Tenn. Crim. App. LEXIS 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ayers-v-state-tenncrimapp-1970.