# State v. Cabbage

> Tennessee Supreme Court · October 10, 1978 · 571 S.W.2d 832

URL: https://www.frixlaw.com/law-library/cases/9774280

## Case

- **Full name:** STATE of Tennessee, Petitioner, v. Billy Wayne CABBAGE, Respondent
- **Court:** Tennessee Supreme Court
- **Decided:** October 10, 1978
- **Citations:** 571 S.W.2d 832; 1978 Tenn. LEXIS 653
- **Precedential status:** Published
- **Opinion:** Dissent by Henry
- **Judges:** Harbison, Cooper, Davis, Henry, Fones
- **Cited by:** 3,658 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in State v. Barone.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9774280

## How later opinions describe it (automated extraction)

- holding that, on appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom
- stating that on appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom
- holding that the State is entitled to all reasonable and legitimate inferences which may be drawn from the proof

## Opinion text

HENRY, Chief Justice,
dissenting.
I respectfully dissent. In reversing the conviction, Judge Wayne Oliver, in a characteristically comprehensive, convincing and exhaustive opinion, held:
The defendant was completely corroborated in every essential detail by Mr. King, the mechanic who repaired his car, including identification of the copy of the repair bill dated March 29,1975, which he prepared himself when the job was completed. Neither the defendant nor Mr. King was impeached in any material aspect of their testimony. And most significant, that repair bill (Exhibit 3) stands unshaken in this record. (Emphasis supplied).
In my view, this record clearly and conclusively establishes it to be a fact that while an undercover agent was making a drug purchase in Knoxville, the respondent was at a garage in Chattanooga.
The majority seizes upon an infinitesimal, undeveloped and all but irrelevant discrepancy in the testimony of the alibi witness, viz his statement that he recognized respondent’s car on an occasion subsequent to its having been confiscated.
The record does not disclose any significant consideration to this testimony during the trial. In fact, counsel did not even question respondent as to what car he acquired after the confiscation of his turquoise Rambler. The record contains no description of the replacement automobile. We can assume that it bore some similarity to his former automobile or we can assume that it bore none. It is difficult for me to understand the materiality of this discrepancy or its significance. The sole relevancy of the line of testimony containing this statement was to establish the identity of the respondent.
The next straw grasped by the majority is an isolated statement by respondent to the effect that King worked on his car a “couple of hours.” From this the majority reasons that Cabbage could have “arrived *837 at the garage nearer to 4 p. m. than noon . and this would have left time for the drug sale to have occurred” in Knoxville.
This ignores the consistent testimony of respondent and King that respondent arrived at the garage around noon. It ignores the undisputed testimony that the garage closed at 3:00 p. m. on Saturdays, with the result that had respondent arrived at 4:00 p. m., the garage would have been closed. It ignores the proof that a significant portion of the some six or more hours was spent in endeavoring, on a Saturday afternoon, to obtain parts for a Rambler automobile.
The rejection of this documented alibi defense solely on the basis of the testimony of a paid informer, in a case where the arrest was made thirty days after the fact, and where admittedly respondent neither possessed nor sold the drugs listed in the indictment is disturbing.
I would affirm the unanimous decision of the Court of Criminal Appeals, and dismiss this prosecution.
I am authorized to state that Mr. Justice FONES concurs in this dissent.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9774280. Public record. Not legal advice.