Opinion
December 11, 1970. Certiorari Denied by Supreme Court February 16, 1971.
Appeal from the Criminal Court, Knox County, Joe D. Duncan, J.
Affirmed.
Hal H. Clements, Jr., Eugene Mynatt, Knoxville, for plaintiffs in error.
David M. Pack, Atty. Gen., Lance D. Evans, Asst. Atty. Gen., Nashville, Joseph J. Nigro and Donald R. Coffey, Asst. Dist. Attys. Gen., Knoxville, for defendant in error.
OPINION
Plaintiffs-in-error, Edgar C. Heald and John Richard Hall, have perfected an appeal in the nature of a writ of error from their joint trial and conviction of burglary in the third degree.
Retained counsel have assigned but one error. It is contended that the indictment should have been quashed, on the premise that burglary is not committed by breaking into the coin box of a pay telephone. We are asked to overrule Fox v. State, 214 Tenn. 694, 383 S.W.2d 25, decided in 1964, which specifically held that the fact that a telephone booth was open to the public and hence lawfully entered did not prevent one breaking into the money receptacle from being guilty of third degree burglary.
We, being an intermediate appellate court, have no authority to overrule a clear and controlling authority promulgated by our Supreme Court. We are satisfied that Fox v. State, supra, controls the single issue presented; and that the judgment of the trial court should be affirmed.
MITCHELL and GALBREATH, JJ., concur.