Stubbs v. State
| Decision Date | 02 June 1965 |
| Citation | 393 S.W.2d 150,216 Tenn. 567,20 McCanless 567 |
| Parties | , 216 Tenn. 567 William Charles STUBBS v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
James Mitchell, David Torbett, Kingsport, David S. Haynes, Bristol, for plaintiff in error.
George F. McCanless, Atty. Gen., Marne S. Matherne, Asst. Atty. Gen., Nashville, for the State.
Stubbs was convicted of murder in the first degree and sentenced to confinement in the State penitentiary for a period of twenty (20) years and one (1) day. From this conviction he has seasonably appealed. Counsel representing Stubbs were appointed by the court and have done an excellent piece of work representing this man. For this representation this Court extends its sincere thanks.
This is the second trial of Stubbs. On July 14, 1954, he was convicted on four indictments of murder in the first degree of a Mrs. Holm, assault with intent to commit murder in the first degree upon her husband, and the kidnapping of two persons named. In this first trial he was sentenced to 99 years and 21 years for the murder and assault, both to run concurrently, and to not less than 2 years nor more than 10 years for the two charges of kidnapping, both to run concurrently with each other but consecutively with the sentences for the murder and the assault. No motion for a new trial was filed and no appeal taken from the 1954 sentence. The trial court appointed a reporter in this 1954 trial, but her notes were not transcribed until February 20, 1964.
Stubbs filed a petition for habeas corpus in the United States District Court for the Middle District of Tennessee, and upon such hearing the United States District Judge held that the 1954 judgment was null and void and ordered the petitioner to be released and remanded to the custody of the Sheriff of Sullivan County 'for further prosecution by the State of Tennessee,' if it so desired. The present case was the trial on this remand.
A number of insistences are made on this appeal, the first being that the trial judge in the present trial should have quashed the indictments because the former judgments of conviction, which have been rendered null and void, amount to a violation of Stubbs' constitutional right to a speedy trial, which has been delayed for ten years, and, too, that it was error for the trial judge herein to admit in evidence the reading of a certain portion of the transcript of the testimony taken in 1954 of Mr. Holm, who at the present time is in Ekskogen, Sweden, and the testimony of his son, who gave certain testimony with reference to what certain witnesses would say.
At the second trial the State produced some fifteen witnesses who testified to the effect that Mrs. Holm died of gunshot wounds on July 11, 1954, and her husband was shot at the same time. The Holms were driving their car from their home in Texas through Tennessee and on up east as the first part of their journey for a visit to Sweden. They first encountered Stubbs at a roadside park on Highway 11-W between Rutledge and Rogersville, where they had stopped to eat lunch.
According to the testimony of Stubbs he forced the couple at pistol point to get in the back seat of their automobile and he, with his gun in his left hand at times and with the gun on the front seat at other times, drove their automobile through Rogersville, Kingsport and Blountville, Tennessee. At a place on Highway 11-W about six miles west of Bristol, Tennessee, the plaintiff in error testified:
Stubbs admitted that a man pointed his finger at him and said, 'That is the one,' while he was in a hospital room, but he didn't know him. He denied any knowledge that Mrs. Holm was dead or that Mr. Holm was injured and denied shooting Mrs. Holm.
The bullet entering the body of Mrs. Holm severed the spinal cord. Mr. Holm suffered two bullet wounds, one just below the left eye and another under the nose. One bullet lodged in the neck and the other in the pharynx. Both bullets were removed. A 6-shot .32 calibre Smith and Wesson revolver with blood on it was found on the floor board of the back seat of the car.
Three Highway Patrolmen and a Police Investigator of Bristol testified that they were present when Stubbs was taken to the hospital room occupied by Holm in the evening of June 11, 1954. One of these officers said that Holm said, 'that is the man that shot me and killed my wife.' Another officer testified that Holm said, 'That is the man that killed my wife and shot me' while pointing at Stubbs. Another officer said, 'Mr. Holm pointed his finger at him (Stubbs) and said, yes, sir, he said that is the man that killed my wife and shot me.' In other words, the identification of Stubbs as the man who committed this crime was ample and sufficient. It was likewise shown that Mr. Holm was perfectly normal and competent at the time he made this identification.
The testimony of a witness, who had died since the first trial in 1954, was introduced from the transcript, and he said that he was driving toward Blountville on Highway 11-W and saw an automobile coming up the road wobbling, going east, and before it went off the road, a man jumped or fell out from the left side of the car onto the highway. He said that he would have hit Stubbs if he had not slowed down, and Stubbs then whirled, ran back toward the car, jumped a fence, ran through a field, and that he watched him until he went out of sight.
Identification is a question of fact for the jury. Wharton's Evidence in Criminal Cases, 11th Ed., § 935, page 1637, § 936, page 1637.
Of course, in this case as in all other criminal cases in this State, the credibility of various witnesses is exclusively for the jury and is settled by their verdict. Christian v. State, 184 Tenn. 163, 164, 197 S.W.2d 797; Ferguson v. State, 138 Tenn. 106, 109, 196 S.W. 140, and others that may be found by Shepardizing these cases.
In criminal cases a conviction will not be reversed on the facts unless it is shown that the evidence preponderates against the verdict and in favor of the innocence of the accused. Cooper v. State, 123 Tenn. 37, 61, 138 S.W. 826, and others. We think the evidence introduced on the second trial of this man was clear and competent. Certainly it does not preponderate against the verdict herein.
The fact that this man was not tried at this second trial for more than ten years after this crime was committed is no violation of his constitutional right for a speedy public trial. He was tried...
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