Arterburn v. State

• Decision Date: 24 May 1965
• Parties: , 216 Tenn. 240 John B. ARTERBURN, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Supreme Court

Page 648

391 S.W.2d 648

20 McCanless 240, 216 Tenn. 240

John B. ARTERBURN, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Supreme Court of Tennessee.

May 24, 1965.

Glenn W. Nash, Memphis, for plaintiff in error.

George F. McCanless, Atty. Gen., Marne S. Matherne, Asst. Atty. Gen., Mashville, for defendant in error.

CHATTIN, Justice.

Plaintiff-in-error, hereinafter referred to as defendant, was convicted of voluntary manslaughter and carrying a pistol with the intent to go armed. He was sentenced to confinement in the penitentiary for a term of not more than two years upon the verdict of voluntary manslaughter, and to eleven months and twenty-nine days in the workhouse and a fine of $50.00 for carrying a pistol, both sentences to be served concurrently.

Defendant was sixty-one years of age and was indicted for the murder of his son, Frederick Merle Arterburn, of the age of thirty-six years.

Defendant resided in Memphis but owned and maintained a cabin for his pleasure at Sardis Lake in Mississippi. He had gone to the cabin for rest on the week-end of November 30, 1963, the date of the tragedy. He was joined there by his deceased son and his grandson, Danny Arterburn, of the age of thirteen years.

Defendant and his son drank some whisky during the day. They drove around the lake in the son's car. Defendant was driving and on returning to the cabin, the defendant failed to set the brakes on the son's car and it rolled into a ditch which caused a slight damage. Defendant and his son engaged in an argument as to who should pay for this damage. An altercation ensued and blows with their fists were exchanged.

Thereafter, the three got into defendant's station wagon in which were some fire arms used for target practice and a loaded thirty-eight caliber pistol. Defendant drove. The grandson sat on the front seat between defendant and his father.

Defendant and his son continued to quarrel. The car was stopped several times and more argument and the exchange of physical blows would occur.

When they reached Highway 51 and Shelby Drive in Shelby County, defendant's son ordered the defendant to stop the station wagon because of a remark made by defendant about his son's wife.

The deceased threatened to beat his father. They engaged in another fist fight. After the fight, the deceased sat down on the right side of the front seat of the car with one foot inside and the other on the outside. The right door was open and Danny was sitting in the front seat next to his father. Defendant got the pistol from behind the front seat on the driver's said and walked in front of the car and shot his son.

Danny ran to a house for help and the defendant drove to a filling station and gave the pistol to the operator of the station. He also requested him to call the police.

Defendant was indicted for murder and carrying a pistol. The cases were consolidated for trial. The jury, as stated, found the defendant guilty of voluntary manslaughter and unlawfully carrying a pistol. The trial judge overruled defendant's motion for a new trial and sentenced defendant as hereinabove set out.

Defendant has appealed to this Court and has assigned forty-one errors.

By assignments of error one and three, defendant insists the evidence preponderates against the verdict of the jury and in favor of the innocence of the accused.

It is a well settled rule in this State a conviction in a criminal case will not be reversed on the facts unless it is shown by the defendant the evidence proponderates against the verdict and in favor of his innocence. White v. State, 210 Tenn. 78, 356 S.W.2d 411 (1962); McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

As said by Mr. Justice Dyer in the case of Bacon v. State, Tenn., 385 S.W.2d 107 (1964):

'The verdict of the jury, when approved by the Trial Judge, accredits the testimony for the State and resolves all conflicts in favor of the theory of the State. Such a verdict has displaced the presumption of innocence and has created a presumption of guilt. Here the accused has the burden of showing that the evidence preponderates against the verdict and in favor of his innocence.' See White v. State, supra; McBee v. State, supra; Holt v. State, 210 Tenn. 188, 357 S.W.2d 57 (1962).

This Court, in reviewing the record on appeal from a conviction, is bound by the rule, 'that the credibility of the witnesses and the conflicts in their testimony have been settled by the verdict of the jury which has been approved by the trial court.' Holt v. State, supra; McBee v. State, supra.

The defendant and his grandson, Danny, were the only eye witnesses to the homicide. Danny testified his father and defendant had been engaged in an argument and a physical altercation off and on all afternoon of the day of the homicide. He stated both men had been drinking intoxicating liquors to some extent.

He further testified when defendant made a remark about the wife of deceased, the deceased demanded the defendant stop the car and told defendant he was going to beat him up. The defendant stopped the car and the two men engaged in another physical altercation.

He then stated, after the two stopped fighting, deceased sat down on the righthand side of the front seat of the station wagon with the door open. He had one foot on the inside and one on the outside of the car and was bending over. Defendant got the pistol from behind the driver's side of the front seat. He told deceased he was going to kill him. He walked around the front of the car and shot the deceased three times. Danny was sitting on the front seat with his father when he was shot and his father was seated when shot.

It is undisputed the shots were the cause of his death.

The defendant admitted he had drunk some whisky but denied he was drunk. He stated the deceased was drunk and quarrelsome; that he was cursing various members of the family.

He denied he had struck the deceased but insisted the deceased had beaten him very badly.

He also stated he did not remember what happened after the car was stopped the last time and he and his son got out of the car. He did not remember getting the pistol and shooting his son, but did realize what had happened later.

On cross examination, he admitted he knew the pistol was loaded and he had a 'faint recollection' of walking around the car with the pistol in his hand, but was unable to remember what happened thereafter.

A number of character witnesses testified the defendant's reputation for peace and quietude was good, and that of the deceased, when drinking, was bad. That deceased had the reputation of being vicious and prone to fight when drinking, although he was not known to carry weapons of any kind.

Dr. Jerry Francisco testified he examined the body of deceased. He was five feet and six inches tall and weighed one hundred forty pounds. He stated he found the alcohol content level in deceased's bloodstream was .33%, representing between twelve and sixteen ounces of one hundred proof Bourbon whisky or twelve to sixteen twelve ounce cans of beer. He testified this condition would affect the reaction time and judgment of the individual, but he was unable to say how much.

Dr. I. Ralph Goldman testified he examined defendant on the Monday following the homicide on Saturday. He stated the defendant was a well developed and well nourished man of small frame. He was very much upset and cried during the examination.

His examination disclosed multiple contusions and abrasions of his face, nose, head, arms, left elbow and right leg; a mild brain concussion; and that he was in a severe anxiety state.

From the foregoing evidence, we cannot say the evidence introduced on the trial preponderates against the verdict of the jury and in favor of the innocence of the defendant. Therefore, assignments one and three are overruled.

Assignments two and four contend the verdict is not supported in law.

T.C.A. Section 39-2409 defines manslaughter as follows:

'Manslaughter is the unlawful killing of another without malice, either express or implied, which may be either voluntary upon a sudden heat, or involuntary, but in the commission of some unlawful act.'

In the case of Smith v. State, 212 Tenn. 510, 370 S.W.2d 543 (1963), voluntary manslaughter is defined to be:

'[T]he unlawful and intentional killing by one of another, without malice, but upon a sudden heat or passion produced by provocation adequate to obscure the reason of an ordinary man, and thus negative malice.'

We think the jury was justified, under the evidence, in finding the defendant acted under a sudden heat or passion produced or provoked by the physical abuse of the deceased on the body of defendant which obscured his reason, and caused him to take the pistol from the car, walk around it and shoot his son while he was sitting in the car. Smith v. State, supra; Whitsett v. State, 201 Tenn. 317, 299 S.W.2d 2, (1957); Davis v. State, 161 Tenn. 23, 28 S.W.2d 993 (1930).

The conviction of voluntary manslaughter did not bar a prosecution for carrying the pistol with which defendant killed his son. Grindstaff v. State, 172 Tenn. 77, 110 S.W.2d 309 (1937).

It is further insisted in behalf of the defendant the homicide was committed in self-defense. There is some evidence to support this theory. The deceased's reputation for peace and quietude was bad. Defendant testified he was afraid of what was going to happen to him at the hands of deceased when the car was stopped at the scene of the crime. We think, however, defendant's testimony failed to support this defense. That is, his testimony fails to show that, at the moment of the shooting, he acted upon an honest belief, based upon reasonable grounds, it was necessary for him to kill his son to save his own life. He testified he did not remember taking the pistol from the car and shooting the deceased. He did not realize what had happened until after he had shot deceased. Bostick v. State,...