Raynor v. State

447 S.W.2d 391, 1 Tenn. Crim. App. 556, 1969 Tenn. Crim. App. LEXIS 340

• Court: Court of Criminal Appeals of Tennessee
• Decided: September 8, 1969
• Status: Published

Opinions

OPINION

WALKER, Judge.

The defendants below, Raynor and Jehagen, were tried jointly with one Herman Walls for robbery with a deadly weapon. Walls was acquitted, but these defendants were found guilty. Raynor was sentenced to fifteen years and Jehagen to twenty-five years in the penitentiary. They have appealed their convictions to this court.

The State’s proof shows that at about 2:30 P.M. on July 2, 1967, Raynor, Jehagen and a third person entered Kelley’s Quality Market in Memphis and robbed the manager, George Davidson, of approximately $900. Jehagen held a pistol on Davidson and forced him to open the safe. Davidson observed Jehagen carefully and was able to describe him and his clothing in detail. Davidson also described Raynor’s clothing, but he did not see Raynor’s face well. Mrs. Carrie Gaines, a cashier, identified both defendants as being two of the participants in the robbery. Floyd Hall, Jr., age fifteen, identified Raynor as one of the three who entered the market and ran out carrying a sack.

The three robbers ran to a white Mustang automobile and fled. Davidson described one as wearing a wine colored shirt, brown and black shoes, and he gave that person’s race, complexion and approximate size and weight. He also described the black with white “V” collar shirt and blue jeans worn by the second robber.

E. L. Treadway, of the Memphis Police Department, heard the description and within a few minutes after the robbery he saw two men like those described. They were in a blue-green Pontiac automobile and in the vicinity of the robbery. He and his partner followed in their squad car and he turned on its dome light. Walls drove into a service station to buy some gas and got out. The officers told the other two to get out. The officers saw, without making a search, a paper sack open on the car’s back floorboard with money visible to them. They arrested the defendants and recovered $758, some of which was identified as that taken from the market.

Jehagen did not testify. Raynor denied being in the market or taking any part in the robbery. He said that he, Jehagen and one Carruthers were walking and caught a ride with a person he did not know in a car he could not describe; they got out and Carruthers left; they then received another ride with Walls, with whom he did know. He denied any knowledge of the money which was in the sack at his feet.

The defendants assign as error the admission of their in-court identifications by Davidson and Mrs. Gaines. At a hearing out of the presence of the jury, the trial judge found that the defendants were not represented by counsel at their lineups. He excluded testimony of the lineup identifications but held that the lineup procedure did not taint the in-court identifications. The trial judge properly held that the in-court identifications had an independent source and were not tainted by improper lineups.

Jehagen contends that the instructions to the jury on the presumption from the possession of recently stolen property amounted to a directed verdict of guilt and conflicts with the presumption of innocence. The unexplained exclusive possession of stolen property shortly after the commission of a robbery may warrant a finding that the possessor has guilty knowledge of the larceny or robbery. See Tackett v. State, 443 S.W.2d 450, opinion by our Supreme Court released for publication June 27, 1969. Recent unexplained possession of stolen property gives rise to the inference that the possessor has stolen it. White v. State, 210 Tenn. 78, 356 S.W.2d 411; Peek v. State, 213 Tenn. 323, 375 S.W.2d 863. This does not force the defendant to testify.

This is a rule from which the jury had the right to infer guilt of robbery or larceny and does not infringe on the defendant’s privilege to remain silent. See State v. Young, 217 So.2d 567 (Supreme Court of Florida).

The defendants say that the money found in the car was the result of an illegal arrest and search. A felony had been committed, and the two defendants closely fit the description given the officers of two of the robbers. Both Walls and Raynor testified that they entered the service station to buy gasoline. Without making a search, the officers could see the open paper sack filled with money. They were warranted in making the arrests on probable cause. T.C.A. Sec. 40-803(3); West v. State, 221 Tenn. 178, 425 S.W.2d 602. One who is lawfully arrested may be searched in his person or premises, including his automobile, without a warrant, provided the search is incident to the arrest. White'v. State, supra.

Furthermore, constitutional rights are not violated when a law officer, without any trespass against a defendant, and while he is at a place where he has a right to be, looks and sees evidence which is plainly visible. See Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857. No search is involved in the discovery of evidence, when it is in plain and open view in a public place.

The defendants demanded pretrial statements of Davidson and Mrs. Gaines. The trial judge did not err in refusing to allow defendants’ counsel to examine them. Hunter v. State, Tenn., 440 S.W.2d 1.

The defendant Raynor contends that the court was without jurisdiction to try him because at the time of the offense he was seventeen years of age. He says that he was a juvenile at the time of the offense and was not taken before juvenile court.

Raynor testified at the trial on April 23, 1968, that he was eighteen years of age. There was no other proof of his age. This did not necessarily mean that he was not eighteen years old at the time of the crime on July 2, 1967.

In response to the invitation of the trial judge to ask questions during the rebuttal examination of Patrolman Treadway, a juror asked the ages of the defendants at the time of the crime. The trial judge inquired and no specific age was given for Raynor and all parties appeared satisfied. No objection or offer of proof was made by defense counsel and the jurisdiction of the court was not challenged during the trial.

[7 ] Although the question by the juror was proper in this case, the efforts of jurors to ask questions of witnesses during a trial often present delicate problems and should not be encouraged. They always make it difficult or embarrassing to an attorney to object. Irretrievable and harmful error may result from them.

To his motion for a new trial, the defendant attached a photographic copy of what purports to be his birth certificate showing November 18, 1949, as his date of birth. This paper says, “This is NOT a certified copy of the original * * *.” No proof was taken at the motion for a new trial. This paper is only a pleading and there is no proof of his age before us.

Moreover, a hearing in juvenile court is not required to give criminal court jurisdiction for the offenses described in T.C.A. Sec. 37-265. This includes robbery with a deadly weapon. See State ex rel. Donehue v. Russell, 221 Tenn. 609, 429 S.W.2d 818; Howland v. State, 151 Tenn. 47, 268 S.W. 115; Greene v. State, 210 Tenn. 276, 358 S.W.2d 306.

In State ex rel. Donehue v. Russell, supra, the petitioner challenged his first degree murder conviction because he was not afforded a hearing before the juvenile judge in accordance with the statutes. Considering T.C.A. Sec. 37-231, from which T.C.A. 37-265 is derived, our Supreme Court said:

“(2) Under this Section, the Juvenile Court had no jurisdiction which could have been waived. It was mandatory for the Juvenile Court to remand such juvenile to the Criminal Court.

“A preliminary hearing by the Juvenile Court was not required as a means of conferring jurisdiction upon the Criminal Court. Howland v. State, 151 Tenn. 47, 268 S.W. 115 (1924).”

All assignments are overruled and the judgment of the lower court is affirmed.

This case was heard and submitted to the Court prior to the enactment of Chapter 330 of the Public Acts of 1969 increasing the membership of the Court.

OLIVER, J., concurs.