Robinson v. State

513 S.W.2d 156, 1974 Tenn. Crim. App. LEXIS 275

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 20, 1974
• Status: Published

Opinions

WALKER, Presiding Judge.

OPINION

On his trial for robbery by means of a deadly weapon, the jury found the defendant below, Willie Daniel Robinson, guilty of robbery and fixed his punishment at ten years in the penitentiary. From his conviction and sentence of five to ten years in the penitentiary, the defendant appeals in error, first challenging the weight and sufficiency of the evidence.

The defendant did not testify or offer any evidence.

The state’s proof showed that on the afternoon of November 17, 1972, the defendant parked his Cadillac automobile near the Kantor Furniture Company in Nashville. He and a passenger, Willie Clark, got out and walked up the street. A few minutes later the defendant came back to the Kantor Furniture Company where only two employees were at work. The defendant asked to see a bedroom suite and one of the employees, Nathan Lubanow, took him to the second floor where that furniture was located.

About 30 seconds later, Willie Clark entered and asked Joe Kirby, the other employee, to show him a couch that made into a bed. When Mr. Kirby leaned over to demonstrate how the bed worked, Clark put some instrument like a pistol in his back and ordered him into a back room. When Mr. Kirby went there he immediately left the store by a rear door and notified police. Clark had been employed at the store a short period in the past, at which time the back door was kept locked. Since his employment the door was kept unlocked on orders of the fire department. Mr. Kirby, however, had not seen either the defendant or Clark before this day.

Clark was surprised to see Mr. Kirby outside and ran. When a police officer with his description asked to talk to him, Clark fled with the officer in pursuit. Clark pointed a .38 caliber Smith and Wesson special revolver at the officer. That officer fired his pistol and killed Clark.

In the meantime other officers went to the second floor of the furniture store where Clark’s companion, the defendant, was talking to Mr. Lubanow about a bedroom suite. The officers arrested the defendant and found on. him an empty shoulder holster and five or six bullets for the revolver found on Clark’s body. The defendant gave written permission to search his automobile. It disclosed the furniture company’s metal money box with $109.25. Clark’s fingerprints were on it. The defendant’s were not there.

In a written statement to the officers, the defendant said that he and Clark were cousins and had been riding around all day; the defendant noticed that Clark had a pistol in the car; that he (the defendant) had a holster in the car; he put on the holster and put Clark’s pistol in it; that Clark later asked for his pistol and he returned it to Clark; that they parked the car in front of the Kantor Furniture Company and the defendant went into another business house; when he returned Clark was not in the car; that the defendant went into the Kantor Furniture Company and was taken to the second floor to see bedroom suites; while he was there the police came and searched him.

The state’s theory was that Clark, as a former employee, was familiar with the layout of the store and that the defendant was an aider and abettor in the robbery; that the defendant led one of the employees from the scene while Clark perpetrated the robbery itself.

The jury believed the state’s theory. The defendant has not shown that the evidence preponderates against the verdict and in favor of his innocence. State v. Grace, Tenn., 493 S.W.2d 474. This assignment is overruled.

The defendant contends that the court in its instructions erred by not defining aiding and abetting further than by charging T.C.A. § 39-109 on that subject. He offered no special request.

That statute provides:

“39-109. Aiders and abettors deemed principal offenders. — All persons present, aiding and abetting, or ready and consenting to aid and abet, in any criminal offense, shall be deemed principal offenders, and punished as such.”

If the defendant considered these instructions meager, he should have presented a special request. In Flippen v. State, 211 Tenn. 507, 365 S.W.2d 895, and Freshwater v. State, 2 Tenn.Cr.App. 314, 453 S. W.2d 446, the court elaborated on this question, but we do not think the court erred here absent a special request. The instructions as given were correct. The failure to give more ample instructions on aiding and abetting in the absence of a special request was not error. See Rowan v. State, 212 Tenn. 224, 369 S.W.2d 543; Butler v. State, 185 Tenn. 686, 207 S.W.2d 584; Hancock v. State, 1 Tenn.Cr.App. 116, 430 S.W.2d 892.

Where words and terms are in common use and are such as can be understood by persons of ordinary intelligence, it is not necessary, in the absence of anything in the charge to obscure their meaning, for the court to define or explain them. See William Terry Cook v. State, Tenn.Cr.App., 506 S.W.2d 955 (cert, denied March 18, 1974). We think the term “aiding and abetting” comes within that definition.

All assignments are overruled and the judgment is affirmed.

GALBREATH, J., dissenting. RUSSELL, J., concurs.