Davis v. State

DWYER, Judge,

dissenting.

I am in respectful disagreement with by brethren when they reversed and dismissed this record.

It is, as recognized by the majority, settled law that the appellant has the burden on appeal to show that the evidence preponderates against his guilt and in favor of his innocence. State v. Sneed, 537 S.W.2d 699, 701 (Tenn.1976). It is further settled law that a jury may in its wisdom draw permissible inferences from the evidence. Gossett v. State, 224 Tenn. 374, 455 S.W.2d 585 (1970). Lastly, it is settled law that it is not the function of the appellate court to reevaluate and reweigh the evidence adduced at the trial. State v. Hatchett, 560 S.W.2d 627 (Tenn.1978). Hence, the jury *470verdict affirmed by the trial judge has accredited the testimony of the State’s witnesses and has resolved all conflicts in favor of the theory of the State. Hawkins v. State, 527 S.W.2d 157 (Tenn.Cr.App.1975). The latter authority specifically holds that the testimony of the State’s witness, and in particular Rubert Wilson, has been believed by the jury and similarly endorsed by the trial court when it overruled appellant’s motion for a new trial.

While it may be true that the facts here make out a clear-cut case of armed robbery as stated by the majority, the trial court, however, charged the lesser included offense of grand larceny, for which the appellant stands convicted. It is true that the trial court was under no legal obligation to charge on the lesser offense; however, that is no more reversible error than the jury’s prerogative of finding the appellant guilty of larceny rather than armed robbery. Reagan v. State, 155 Tenn. 397, 293 S.W. 755 (1927); Jones v. State, 200 Tenn. 429, 292 S.W.2d 713 (1956); Howard v. State, 506 S.W.2d 951 (Tenn.Cr.App.1973); Craig v. State, 524 S.W.2d 504 (Tenn.Cr.App. 1974); T.C.A. 40-2520; T.C.A. 40-2521. Nor is the charge on the lesser offense any basis for undercutting the conviction.

It is also true that Wilson had given a statement ex curia absolving Davis from his original extrajudicial statement inculpating Davis. It was, however, Wilson’s sworn testimony that appellant on the day of the robbery told him, “. . .we had got the Food Stamp Office.” I think this admission evaluated in the light of the rules governing appellate procedure prevents a reversal of this judgment. Stated in another view, if our rules governing appellate review are viable an appellate court cannot discard the sworn testimony of Wilson and to do so, I think, is tantamount to an absolute reweighing and reevaluation of that testimony. In other words, my brethren have seen fit to discard the testimony of Wilson, as accredited by the jury and approved by the trial court contrary to the standards of appellate review. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963); State v. Grace, 493 S.W.2d 474 (Tenn.1973); State v. Sneed, supra. It is further not the prerogative of the majority to evaluate circumstantial evidence in the light that a hypothesis of guilt has not been removed since it was just as logical to infer from the evidence that someone else was the “wheel” man, for this is a matter for the jury. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856 (1956). The review here is predicated solely and exclusively on the settled rule of law that the evidence must be shown by the appellant to preponderate against guilt and in favor of his innocence, a burden which the appellant bears whether the evidence at trial is direct or circumstantial. State v. Brown, 551 S.W.2d 329 (Tenn.1977).

While concededly the evidence against appellant is not ironclad, it was, however, sufficient for the jury to find guilt beyond a reasonable doubt. In the absence of authority to usurp the powers of the jury and being hindered by an inability to view and hear the witness Wilson, I am disinclined from a cold record to decide, as the majority does, that he was untruthful and hence unbelievable, contrary to the jury’s findings. Ferguson v. State, 138 Tenn. 106, 196 S.W. 140 (1917).

Lastly, while utilizing a jury-type argument approach in rebuttal to the majority position that none of the four witnesses identified appellant at the scene, it is apparent that the robbers may have been masked, which would result in appellant’s non-identification, and therefore, is not, I think, too persuasive. It is also noteworthy that the names signed by the holdup men contained the first and last names of the appellant. In conclusion, as stated, the admission coupled with the names and lastly the fact that appellant did not testify, I think the evidence here does not preponderate against his guilt and in favor of his innocence. Simply put, he has not carried the burden in my view.

I would, under the authorities cited in this opinion, affirm this conviction.