Scarbrough v. State

• Decision Date: 30 November 1934
• Parties: SCARBROUGH v. STATE.
• Court: Tennessee Supreme Court

76 S.W.2d 106

168 Tenn. 106

SCARBROUGH v. STATE.

Supreme Court of Tennessee.

November 30, 1934

Error to Criminal Court, Anderson County; J. H. S. Morrison, Judge.

Will Scarbrough was convicted of involuntary manslaughter, and he brings error.

Affirmed.

Ben F Alexander, of Clinton, for plaintiff in error.

W. F Barry, Jr., Asst. Atty. Gen., for the State.

COOK Justice.

Plaintiff in error Scarbrough, W. P. Arms, and Sam Cates were indicted for killing Everett Johnson in Anderson county on the night of June 17, 1931. They went to a camp on the river where Johnson had gone fishing to arrest him upon information that he was in possession of a stolen automobile. Johnson was shot while in flight and the indictment followed. The charge against Cates was dismissed upon nolle prosequi. After two mistrials, the jury acquitted Arms, but convicted Scarbrough of involuntary manslaughter with imprisonment for a year. Scarbrough appealed and insists that the evidence preponderates against the verdict and that the verdict is contrary to the law applied to the facts.

Scarbrough was a constable and Arms a deputy sheriff of Morgan county. Both resided at Petros. Johnson, who came from Danville, Ky had been at Petros four or five weeks and within that period was seen using two cars, a Chevrolet and a Chrysler, from both of which Kentucky numbers were removed and Tennessee numbers substituted.

Some time during the day of June 17, Arms was informed that Johnson was in possession of a stolen automobile for which there was a reward of $25. About 7 o'clock p. m., Arms informed Scarbrough of what he had heard and told him to get ready to go after Johnson. It is proper to add here that subsequent developments disclosed the fact that the Chrysler car was stolen from Cash Pence, a resident of Kentucky.

In the forenoon Johnson, driving the Chrysler, went to the fishing camp on the Clinch river in Anderson county with Zeke Dexter and Allen McGhee. In the afternoon Johnson brought McGhee back to Petros and returned to the camp, reaching there about 9 o'clock, to join Dexter for a night's fishing with a trot line. After looking at the lines, Dexter and Johnson stopped awhile at the camp of Fred Beets, Earl Beets, and Earl Wilson, situated about twenty yards from where Dexter and Johnson were camping beside their cars. Somewhere near 10 o'clock they left the Beets camp with the statement that they were going to sleep at their cars. Within about thirty minutes Deputy Sheriff Arms and his party came. They left Petros about 8 o'clock, soon after Johnson left, and traced him to the camp. They had no writ for his arrest, but acted upon the information given Arms that Johnson was in possession of a stolen car. When they attempted to arrest Johnson, he ran down a path that led in the general direction of the Beets campfire, but passed it about nine feet to one side. The Beets boys and Wilson were sitting by their campfire when Arms, Scarbrough, and Cates came to Johnson's car. They heard talking but saw no struggle. They saw Johnson run down the path toward their camp, saw the men pursuing, heard them crying halt, and heard pistol shots and as Johnson ran past they heard the last shot and heard his body strike the ground out in the dark a short distance beyond their camp.

When the firing began the Beets boys and Wilson got behind a tree. They testified that as Johnson ran five or six shots were fired. Fred Beets heard bullets whizzing by. Earl Beets saw flashes, that is shots upward, and spots, that is horizontal shots, as Johnson came running toward them. Earl Wilson said there were four or five rapid shots, a...