Opinion
Van Cleave, Hatfields&sParker, Chattanooga, for plaintiffs in error.
Thomas E. Fox, Asst. Atty. Gen., Nashville, for defendant in error.
WHITE, Justice.
A strong and vigorous petition to rehear has been filed herein. It is contended that neither the law nor the facts support the conviction. We believe that the law upon which we based our original conclusion is sufficiently stated in the opinion. The restatement of it would merely emphasize that which we have already held and would serve no purpose.
We have re-examined the record. It shows, from the testimony of Crawford Bean, that the three brothers Lamere came to his office and the two who stand convicted her took from him, at pistol point, the file and papers referred to in the original opinion.
Mr. Bean testified that 'Theodore Lamere said, 'Now I'm taking those stocks and bonds and these files.' And I just told him, I said, 'You're taking nothing.' And about that the Sherman whipped out a pistol from under his lap and turned around, * * * and I said, 'You better put that pistol up.' He was kinda shaking. So he said, 'We are going to take it', and he said 'You (referring to Bean) are going to get that file or I'm going to kill you."
Under these circumstances the file was turned over to these defendants. In addition to this treatment, Theodore Lamere, at the point of a pistol, commenced Bean to sign a receipt for $800.00 in money or die. His exact words being, according to Bean, 'either sign it or die'.
The witness, Adrian Norwood, who was in the waiting room of the law office, testified that one of the defendants, as he left te office, had a folder and that he was putting a gun in his pocket. The witness was referring to the defendant Sherman Lamere, according to the record. Theodore Lamere, who was in Army uniform, had a pistol in his hand, according to Norwood.
Elizabeth Robinson, a waitress, was in the front seat of a taxicab intending to go home when the defendant, Sherman Lamere, got on the back seat of the cab with a brown folder in his hand and requested that the cab driver take him to East Ridge, a section in or adjoining the City of Chattanooga. This same witness said that during the time they were in the cab together she saw a pistol in the lap of Lamere.
The taxicab driver, John Sanderfur, testified that when Lamere got out of the cab,
'I saw a pistol. When he got out he put it in his left rear pocket.
'Q. You had not seen the pistol up to that point?
'A. No sir.
'Q. But as he got out you saw him put the pistol in his pocket?
'A. Yes sir.'
All three of the defendants denied the use of weapons of any type in securing the file and papers from Mr. Bean. There was no testimony that Albert Lamere had or used a pistol. The jury found him not guilty. They found the other two defendants guilty and assessed the minimum punishment.
It has been the law of this State established over a period of its existence that the credibility of the witnesses and the conflicts in their testimony have been settled by the verdict of the jury which has been approved by the trial court. In this case the evidence of the State and the defense is diametrically opposed on many points. Under these circumstances it is the duty of the jury, under proper instructions, and the instructions in this case are not attacked, to arrive at the truth of the situation, the truth being the justice in the case. Holt v. State, 210 Tenn. 188, 198, 357 S.W.2d 57, 62 (1961).
In considering a case on appeal we do so with the presumption that the defendant is guilty as found by the jury and approved by the court. It must be remembered that the presumption of innocence disappears after a conviction and the defendant is presumed to be guilty here. The jury and trial judge see and hear the witnesses face to face and are in a far better position to determine who is correctly detailing the truth of the matter than are we who see only the record. Holt v. State, supra, and other cases cited herein.
It is our opinion that the facts of this case support the convictions.
We are of the opinion also that these defendants were earnestly and ably represented on the trial of the case and in this Court. In the petition to rehear filed by additional counsel, another forceful argument has been presented on behalf of these defendants. All that advocates could do has been done for these defendants.
There is no evidence in the record of any past misconduct on the part of these defendants and it is with regret that the law and the facts of this case force us to affirm the conviction carrying with it a sentence of three years in the penitentiary. The Legislature has prescribed the punishment for the offense committed here and we are unable to consider a reduction in the sentences.
For the foregoing reasons the petition to rehear is denied.