Stewart v. State

484 S.W.2d 77, 1972 Tenn. Crim. App. LEXIS 335

• Court: Court of Criminal Appeals of Tennessee
• Decided: June 1, 1972
• Status: Published

Opinions

OPINION

RUSSELL, Judge.

This case involves a conviction under T. C.A. § 39-4226, fraudulent breach of trust, for the appropriation of a tape player by one to whom it was delivered for repairs. The jury set the punishment at a thirty day jail sentence.

Only four witnesses testified. The record leaves much to be desired in the way of clarity. However, it is fair to say that the only defense relied upon was the claim of the defendant that in moving his business premises the tape player was thrown away by the defendant’s wife.

The record is full of discrepancies in material matters. The young man who owned the tape player said that he turned it over to the defendant at the young man’s place of employment, a service station; while the defendant claimed that it was brought to his shop. The owner said the property was in operating condition, but simply lacked volume; while the defendant claimed that it was in numerous pieces. The owner said that the transaction was in July, 1970; while the defendant claimed that it was months earlier.

The key factual issue is whether or not the defendant’s wife lied when she testified that she threw the tape player away. A close review of her testimony, taken in concert with the other proof in the case, justifies the jury’s rejection. Despite numerous confrontations with the owner’s mother, and a claimed knowledge of tape players and this one, she never advanced her story about throwing it away until a day after her husband’s preliminary hearing. When her husband was confronted to return the machine in her presence, and he promised to look for the tape player, she never presented her story. When the owner’s mother came to their house demanding the tape player, the defendant told his wife that he would search for the player, and she was silent, because “ . . . for all I knew, she did have a tape player over there”. She said that she knew about tape players, and their value; and yet she claimed to have thrown this one away without even consulting with her husband. She claimed that the tape player was at her husband’s shop for months before it actually was.

In summary, defendant’s wife’s story, upon which he relied, could well have been found by the jury to be incredible and untrue. The same can be said of the defendant’s testimony. The jury’s rejection of their story leaves the facts being that the defendant accepted a tape player of a value of ninety dollars on the pretense of repairing it, never attempted to do so, and never returned it despite many demands over many months.

He has not given a credible account for this, but has relied upon an incredible story presented for the first time publicly at his trial that his wife deliberately threw the tape player away. The jury was justified in rejecting the theory that the loss could have occurred accidentally.

We hold that his appropriation of the tape player has thus been sufficiently established to support his conviction. The assignments of error going to the legal sufficiency of the convicting evidence are overruled.

Error is assigned upon the following excerpt from the cross-examination of the defendant.

“Q. And has it ever turned up that you have had stolen merchandise in your possession ?

“Mr. Ayres: Your Honor, I object to that.

“The Court: I sustain the objection.”

The defendant had taken the stand, so was subject to impeachment. (He was shown to have three prior felony convictions.) The State relies upon McGowan v. State, 221 Tenn. 442, 427 S.W.2d 555, for the proposition that acts of misconduct tending to show motive, guilty knowledge, intent, etc. are admissible; after pointing out that the trial judge actually sustained this objection. See State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460, in which our Supreme Court allowed a defendant charged with larceny of a safe to be cross-examined about his being a big professional crooked gambler. We overrule this assignment.

Complaint is made as to certain argument made to the jury by the prosecuting attorney. Part of it is not in the Bill of Exceptions. We find no error in the alleged argument.

The Court instructed the jury to weigh the evidence or testimony of the accused the same as other witnesses in the case, and error is assigned because he added: “Always remembering that he is a party to the suit and interested in the result of the trial”. Our Supreme Court has upheld such a charge. Cooper v. State, 123 Tenn. 37, 138 S.W. 826. We believe the better practice would be to leave it off. The assignment of error is overruled.

Finally, complaint is made that the trial judge did not properly and adequately define “fraudulent appropriation” in his charge. No request for further charge was forthcoming when asked for. The charge as given was a correct statement of the law. This assignment is overruled.

Affirmed.

GALBREATH, J., concurs.