Bartlett v. State

• Decision Date: 02 February 1968
• Citation: 1 Tenn.Crim.App. 60,429 S.W.2d 131
• Parties: William Ray BARTLETT, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 131

429 S.W.2d 131

1 Tenn.Crim.App. 60

William Ray BARTLETT, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

Feb. 2, 1968.

Certiorari Denied by Supreme Court June 17, 1968.

Roger Murray, Jr., Jack Ross, Savannah, W. J. Reynolds, Selmer, for plaintiff in error.

George F. McCanless, Atty. Gen. of Tennessee, Thomas E. Fox, Deputy Atty. Gen., Nashville, for defendant in error.

OPINION

OLIVER, Judge.

The plaintiff in error, referred to herein as the defendant, was convicted of involuntary manslaughter in the Circuit Court of McNairy County under an indictment charging him with first degree murder of Ben Edward Moore. For this offense he was sentenced to serve one to five years in the State Penitentiary. His motion for a new trial being overruled, he prayed and was granted an appeal in the nature of a writ of error to this Court.

The defendant makes three Assignments of Error. However, the sum and substance of them is the usual contention that the evidence preponderates against the verdict and in favor of the defendant's innocence. Defense counsel recognizes this in argument that 'Since all of the assignments of error depend upon the error of the jury and the Court in concluding from all the evidence that the defendant was guilty of involuntary manslaughter beyond reasonable doubt, it is appropriate to present this argument in support of all three assignments of error.'

In considering such an Assignment of Error, we must do so upon the well-established law of this State that a conviction in a criminal case 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, and that the defendant has the burden of demonstrating this from the record. The presumption of innocence disappears upon conviction in the trial court and is displaced here by a presumption of guilt, and it is with this presumption that we must consider the case on appeal. The legal effect of the verdict of a jury approved by the trial court, and the law governing appellate review has been stated and reiterated by our Supreme Court in numerous cases. A most excellent statement of the law upon this question was made by Mr. Justice Felts in Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523:

'This argument overlooks the legal effect of the verdict of the jury, and also the law governing appellate review. The jury and the Trial Judge saw the witnesses face to face, heard them testify, and observed their demeanor on the stand, and were in much better position than we are, to determine the weight to be given their testimony.

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'On appeal, therefore, the jury's verdict is to be taken as establishing the truth of the case. In civil cases the verdict will not be disturbed on the facts if it is supported by any material evidence. In criminal cases, out of tenderness to human life or liberty, the rule is more lenient: The verdict will be disturbed on the facts only if the evidence clearly preponderates against it and in favor of the innocence of the accused. Cooper v. State, 123 Tenn. 37, 56, 153, 138 S.W. 826.

'As said so often by this Court, the jury's verdict of guilt, approved by the Trial Judge, establishes the credibility of the witnesses supporting the verdict, displaces the presumption of innocence that attended defendant on the trial, raises a presumption of his guilt, and puts on him the onus of showing on appeal that the evidence preponderates against the verdict and in favor of his innocence. Cooper v. State, supra, 123 Tenn. 37, 56--61, 153, 138 S.W. 826; Turner v. State, 188 Tenn. 312, 322, 219 S.W.2d 188; Batey v. State, 191 Tenn. 592, 596, 235 S.W.2d 591, 593; Ivy v. State, 197 Tenn. 650, 652, 277 S.W.2d 363; Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385.

'So, under the law by which we are bound, we may review the evidence only to determine whether it preponderates against the verdict and in favor of the innocence of defendant; and in such review we must take the verdict as having established the credibility of the State's witnesses.'

The late Mr. Justice White stated the rule as follows in McBee v. State, 213 Tenn. 15, 372 S.W.2d 173:

'It is also well-settled in this State that the verdict of the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflict in favor of the theory of the State. Such verdict also removes the presumption of innocence of the accused and raises a presumption of his guilt and puts upon him, here, the burden of showing that the evidence preponderates against the verdict and in favor of his innocence. See White v. State, supra (210 Tenn. 78, 84, 356 S.W.2d 411, 414); Holt v. State, 210 Tenn. 188, 357 S.W.2d 57 (1962); Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385 (1960); Turner v. State, 188 Tenn. 312, 219 S.W.2d 188 (1949); Batey v. State, 191 Tenn. 592, 235 S.W.2d 591 (1950); Mahon v. State, 127 Tenn. 535, 156 S.W. 458 (1913); Cooper v. State, 123 Tenn. 37, 138 S.W. 826 (1909).'

In the early evening of July 2, 1966, the deceased Ben Edward Moore, along with his brothers Perry Wayne Moore and Donald Moore and their uncle Marlin Tackett, went to the Anchor Club in McNairy County. This establishment was a beer tavern and dance hall, a partition separating the bar from the dance hall. In the dance hall, they joined Mrs. Susie West, her son Kenneth West, and Ancil Dillon who were already seated at a table. All of these parties were drinking beer. Gordon Sparks was the proprietor, and his wife Betty Sparks was working as a waitress at that time.

Mrs. Sparks went to this table and requested payment of the cover charge of $1.00 each which customers seated in the dance hall portion of the establishment were expected to pay. Donald Moore paid the cover charge, but the other three members of his party refused to do so. Almost immediately thereafter, the proprietor came in and demanded payment of the cover charge, or, in the alternative, that the deceased and his brothers and their uncle finish their beer and leave within five minutes. Donald Moore's dollar was returned to him.

After about five minutes, the proprietor returned to the table where these parties were seated, apparently with the intention of requiring them to leave the establishment. The defendant was with the proprietor at this time. He had patronized this place before and was well acquainted with the proprietor. A fight started immediately between the deceased's two brothers and their uncle and the proprietor. According to witnesses for the State, when this difficulty began the defendant pulled a small .22 caliber white-handled dark-colored pistol from his pocket and began shooting directly into the group of men, and one of the first shots hit the deceased in the top of the head, fatally wounding him. It is uncontradicted that the deceased had not become involved in the difficulty, and that he was still seated in a chair at the table. He died the following morning about 4 o'clock in the Kennedy Hospital in Memphis.

During this wild melee, the defendant fired some four or five shots. Donald Moore advanced upon the defendant and attacked him when the shooting started and was shot twice himself, in an arm and in a thigh. During the fight between them, Donald Moore recovered the pistol from the defendant who then immediately started running toward the door. Donald Moore fired twice at the defendant as he left, one of which shots struck the defendant in the back just below his belt.

The defendant testified that he was seated alone at a table in the dance hall, having gone there in search of his brother. He was drinking beer. While sitting there he thought he heard a car that sounded like his brother's and went to the front. The proprietor was arguing with the Moores when he passed their table, and there was cursing. When he came back, they were pushing and showing and the defendant asked Kenneth West, who by this time had moved with his mother to another table, why they were throwing the Moores out. The next thing he knew he was hit in the face with something and somebody said, 'He's a tough son-of-a-bitch, I'll shoot him.' The blow on his face made a laceration which required some forty suture stiches. He said that Donald Moore began shooting at him with a pistol; that he grabbed hold of Donald's wrist and that they scuffled and wrestled over the pistol; that it was fired three times during the scuffle; and that he never had his finger on the trigger of the pistol and never had it in his hand at any time. There was some defense testimony to support the defendant's story, and some of his witnesses believed that the deceased was in the line of fire as Donald Moore began shooting at the defendant and that the...