Dietzel v. State

• Decision Date: 15 May 1915
• Citation: 177 S.W. 47,132 Tenn. 47
• Parties: DIETZEL v. STATE.
• Court: Tennessee Supreme Court

177 S.W. 47

132 Tenn. 47

DIETZEL v. STATE.

Supreme Court of Tennessee.

May 15, 1915

Appeal from Circuit Court, Obion County; Jos. E. Jones, Judge.

Frank Dietzel was convicted of murder in the first degree, and he appeals. Judgment modified and affirmed.

Pierce & Fry and J. A. Whipple, all of Union City, and J. M Anderson, of Nashville, for plaintiff in error.

Frank M. Thompson, Atty. Gen., for the State.

GREEN J.

Plaintiff in error was indicted, charged with the murder of George Wehman on July 11, 1914. He was tried and found guilty of murder in the first degree, with mitigating circumstances. The trial judge disregarded the finding of mitigating circumstances and imposed the death penalty, and Dietzel has appealed in error to this court.

The deceased, George Wehman, was a man about 55 years of age. He disappeared from his home in Union City on the night of July 11, 1914. Foul play was suspected, and a search was instituted for him. On July 24, 1914, his body was found in a well some two or three miles west of Union City. There was a gunshot wound on the back of his head, by which the doctors testified his death was produced.

Deceased was formerly a barber, but of late years had become a painter. He also appears to have done odd jobs of every kind around Union City, and was an individual of eccentric habits. He had separated from his wife and boarded at the house of a Mrs. Dunn, at the east end of Church street, in Union City. Deceased was miserly in his habits, and testimony in the record indicates that it was a custom of his to carry money on his person, and that this was generally known. Some three or four years before his death he went to a friend in Union City and took from his pockets $2,500 in currency, which he turned over to this friend for safe-keeping. A short while before his death the same friend, Mr. Burdick, saw deceased with about $140 on his person.

Wehman carried his money in a red tobacco sack, and he was seen in possession of this sack and to take a roll therefrom by his landlady on the night he was killed, and by a merchant a few days previous thereto. Mrs. Dunn, his landlady, testifies that he was in the habit of counting his money. The deceased had very little to do with other people; and with the exception of Mr. Burdick, heretofore referred to, and one other man in Union City, he was not known to have had any intimate associates.

Plaintiff in error is a young man who has about attained his majority. His home was in Union City, with his father, Herman Dietzel who appears to be a man of substance and is highly respected in the community. Mr. Dietzel testifies that he started in life as a blacksmith, and, as said before, the record indicates that he has accumulated considerable property. Plaintiff in error has two brothers, who are men of standing and two young lady sisters. The Dietzels live in a comfortable home in Union City.

Notwithstanding the disparity of age between plaintiff in error and the deceased, and notwithstanding the difference in their social positions and walk of life, plaintiff in error seems to have sought the company of deceased. It is in evidence that these two were together at the town of Rives a few days before the disappearance of deceased.

They drove over there from Union City in a buggy and had supper at a restaurant in Rives and tried to get something to drink.

It appears from the testimony of Mrs. Dunn and of her husband that deceased returned from his work on the night of July 11th about 8 o'clock. He went to a hydrant in the yard and washed the paint off his hands with a brush, which he kept for that purpose. Then, going into the house, he paid Mrs. Dunn his week's board; this being Saturday night. She stated that he took two sacks from his pocket, one of which contained a roll of bills, and another contained silver money; that he had all his money out on the table, counting it, and paid her five silver dollars, and returned his roll of bills to the red sack. There is an apparent conflict between Mr. and Mrs. Dunn's testimony as to whether the deceased had his money in one sack or two, as Mr. Dunn recollects that there was only one sack. Mrs. Dunn, however, was in the room with deceased, while her husband was outside, and her opportunities for observing were better. This conflict is immaterial, however, for it is distinctly shown by another witness, a merchant in Union City, from whom deceased bought paint, that the latter did carry his currency in a red tobacco sack.

It was the habit of Wehman to take a bath every Saturday night under a hydrant at a livery stable in Union City. In company with Mr. Dunn, deceased left his boarding house about 9 o'clock to go to town for the purpose of taking this weekly bath. The two went west on Church street up to the business portion of the town, where they separated, with the understanding that they were to meet again at Alexander's livery stable at 10:30 p. m. and go home.

Much proof was introduced on the trial as to the respective whereabouts of the deceased and plaintiff in error during the early part of this night of July 11th. We do not find it necessary to review this testimony in detail. As to the deceased, it is sufficient to say that he was seen by a number of persons around the corner of Church street and First street, which appears to be the business center of Union City, at 9 o'clock or thereabouts, and that he was seen to go to Corum's livery stable, where he took his bath, and which place he left about 10 o'clock. Corum's livery stable is on First street, and fronts to the east. Opposite this stable is a marble yard, and in the rear of the marble yard is Depot street. Then going east there is a park, through which the deceased would naturally have passed on his way home from the livery stable. He was seen to leave the livery stable as though he intended to pass through the marble yard, and he was seen by other witnesses on east Church street, east of the park, within about three blocks of his boarding house. These witnesses place the time that they saw him at about 10:22 p. m. A gentleman who saw him at the last-named point was returning from a picture show and noticed that it was 10:12 by a clock on a store uptown as he passed. He estimates that it took him 10 minutes to walk from this store to the place where he saw the deceased. Two ladies met Wehman near this place, and their testimony may be construed as indicating the time to have been about 10:20. They had been out visiting, and were on their way home. They had left a neighbor's house in the immediate vicinity, but were not sure whether it was a quarter of 10 or a quarter after 10 when they made their departure.

When seen at this last-named point, the deceased was standing still, off the edge of the sidewalk. The state insists that he was waiting for some one. Plaintiff below undertook to show that it was a habit of deceased to step off the sidewalk when he was about to meet ladies. He was not seen by any one, who testifies in the record, after these witnesses saw him as just related, at 10:22 p. m., July 11th, until his body was discovered in the well.

Plaintiff in error was also uptown on Saturday night between 9 and 10 o'clock. He was seen by a number of persons in the business portion of the city. He bought a pair of socks at a toggery shop about 9:30, and was seen by another witness at the corner of Church street and First street about 10 o'clock, and other witnesses saw him nearer his home and walking as though he were going home at about 10:15 p. m. The testimony of witness Raleigh Dodson, who testified to seeing plaintiff in error within a short distance of his home at about 10:15, is somewhat weakened by the state on cross-examination. The home of plaintiff in error was on east Main street. two blocks north of Church street. The Dunn house, where Wehman boarded, was on east Church street, and leaving the business portion of the city, plaintiff in error would pursue the same general direction on his way home that deceased would take to his boarding house.

Leading out from Union City in a westwardly direction are two main roads, known as the Protemus road and the Rockbridge road. The Protemus road is north of the Rockbridge road. Something less than three miles from the corporate limits these two roads, still pursuing the same direction, are connected by a lane or cross road. About 500 or 600 yards south of the intersection of this lane and the Protemus road was the well in which the body of deceased was found.

The brother of deceased measured the distance from this well to the Dunn house

by the speedometer on his automobile, and testified that the distance from the Dunn house to this well by the Protemus road was 3.1 miles, and by the Rockbridge road 3.3 miles.

The theory of the state was that the plaintiff in error took the deceased from Union City to the well referred to in a buggy on the night of July 11th and killed him somewhere on the way and placed his body in the well, returning to town about 11:30. In view of the foregoing testimony as to the whereabouts of the parties on this night, it is urged in behalf of plaintiff in error that it was a physical impossibility for him to have committed the crime in the manner charged.

It is established beyond controversy in the record that Frank Dietzel procured a horse and buggy from Alexander's livery stable on the night of July 11th, and that he left the stable in this rig at about 9 o'clock. He was driving a gentle mare, which the liveryman calls the Edwards mare, and she was hitched to a no-top buggy.

This horse and buggy was returned to the stable at 11:30. The time is fixed very satisfactorily by employés of the livery stable. These employés were in the rear of the...