Beard v. State

• Decision Date: 22 June 1972
• Citation: 485 S.W.2d 882
• Parties: William Eugene BEARD, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 882

485 S.W.2d 882

William Eugene BEARD, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

June 22, 1972 Certiorari Denied by Supreme Court Sept. 18, 1972.

Henry Hall Waller, Jr., B. F. (Jack) Lowery, Lebanon, for plaintiff in error.

David M. Pack, Atty. Gen., Everett H. Falk, Asst. Atty. Gen., Nashville, Baxter Key, Jr., Dist. Atty. Gen., Carthage, for defendant in error.

O'BRIEN, Judge.

OPINION

Defendant, William Eugene Beard, appeals in error from his jury conviction of murder in the first degree and resulting sentence of twenty years and one day in the Penitentiary.

Six assignments of error are made. The 1st and 3rd assignments attack the weight and sufficiency of the evidence on the theory that a dying declaration was improperly admitted into evidence and any other evidence of conviction in the record is circumstantial and insufficient to warrant the verdict of the jury.

It is contended by defendant that the alleged statements by the deceased were not a dying declaration in the sense that would except them from the hearsay rule; that there must be a definitive showing that the declarant was in 'articulo mortis', and that the State has failed to establish that declarant was in 'articulo mortis', or that he was fully conscious of his impending death.

' Articulo mortis' is defined in Volume 6 C.J.S., page 777, and in Black's Law Dictionary, Third Edition, as 'At the point of death; in the article of death, which means at the moment of death; in the last struggle or agony.'

The testimony relevant to the admission of this statement of the deceased is that about 6:00 o'clock in the morning on the 23rd of September, 1967, Mr. & Mrs. Roy Watson, who resided about three miles out from Auburntown in Wilson County, heard the sound of an automobile horn. Mrs. Watson went to the door and found a car almost at her door steps. A man stumbled out of the car and dragged himself up on the porch, and said, 'Open the door and let me come in. I have been shot. Call the ambulance. Oh Lord, have mercy on me.' 'Just look what Eugene Beard did to me.' Mrs. Watson testified further, that she called her husband, but did not call the ambulance immediately because she thought the man was drunk. He had a few spots of blood on him, not many. She thought he had been in a fight. Her husband went out and said he had been shot. She was looking for a number to call. She was going to call Taylor Willard. Her husband said, 'Don't call him. Call the sheriff.' Taylor Willard, who was the game warden and deputy sheriff, came to the house. Mrs. Watson wanted to get a quilt to cover the injured man, but Taylor Willard said, 'He is suffering too bad.' When the ambulance got there, the injured man was dead.

Roy Watson confirmed the testimony of his wife as to the hour and circumstances occurring which aroused them. His wife looked out first and said there was a drunk out there. Watson had worked late the night before. He told his wife to be real quiet and maybe the man would leave. The man kept hollering, so she kept wanting him to get up. He got up and went to the door and the man was hollering for help. He was hollering, 'Come and help me and listen to what I have got to say.' After some discussion with his wife about whether he should go outside, Mr. Watson went out another door because the injured man was across the front door and he couldn't get out that way. He asked the man what was the matter, and he said he was shot. Mr. Watson then observed that the man had been shot in the jaw, went back in the house and told his wife to call an ambulance. He testified, 'I asked him who shot him, and how come him to get into it and he said, 'Eugene Beard shot me', and I asked him what did they get into it about, and he said he knew too much about some bank robberies. . . . We called an ambulance and they came, but Mr. Willard got there first and Mr. Willard asked him just what I did.' The injured man asked the Lord to help him. He was dead before the ambulance arrived.

This testimony was apparently developed out of the presence of the jury at a previous trial. It appears that objections had been made at the previous trial on the grounds that the dying declaration in this case did not come within the exception to the hearsay rule because of the manner in which it was made. The same motions were entered without objection by the State, and considered and overruled by the Court in this case.

The defendant's brief cites numerous cases dealing with this question to support the theory that the State did not establish that declarant was in 'articulo mortis' and was fully conscious of his impending death. We are of the opinion that the rule announced in Anthony v. State, 19 Tenn. 265, at pages 279--281 remains as authority on this issue and has not been changed by the subsequent decisions.

'As to the other ground of objection, namely, that there is not sufficient evidence to show that the deceased knew or thought herself to be in imminent danger of death at the time the declaration was made, a majority of the Court are of opinion that it also is not tenable. The general principle deduced from all the cases is stated, 1 East, P.C. 354, to be that 'it must appear that the deceased, at the time of making such declarations, was conscious of his danger, such consciousness being equivalent to the sanction of an oath; and that no man could be disposed, under such circumstances, to belie his conscience, none at least who had any sense of religion. But such consciousness need not have been expressed by the deceased. It is enough if it might be collected from circumstances; and the Court are to judge of this consciousness previous to this sort of testimony'.

. . . 'It is obvious that this rule or principle, so distinctly stated, does not mean that the inference may be drawn from the mere fact that the wound, in the opinion of the man of science, was in point of fact mortal; but that the nature of the wound or the state of illness should be such as to affect the knowledge, and control the opinion of the dying person himself, as to the danger to which he stands exposed;' . . .

Also, as stated in Dickason v. State, 139 Tenn. 601, 202 S.W. 922:

'The competency of a dying declaration is ordinarily a mixed question of law and fact. While this court, therefore, has power to review the action of the trial judge in such a matter, it being merely a question of the admissibility of evidence, we very seldom do so. Where the fact of the declarant's condition depends on the credibility of witnesses examined by the judge, great weight is to be attached to his conclusion. This court will not reverse, unless there is manifest error. Such is the rule in most appellate tribunals.' . . .

We have reviewed all of the testimony surrounding this declaration on the part of the deceased, and conclude the trial court acted correctly in admitting the declaration to the jury. Defendant's own pre-trial admissions placed him at the scene of the homicide. The statements made by him in his own defense at trial were not required by admission of the dying declaration. Assignments No. 1 and 3 are found to be without merit.

The 2nd assignment charges the trial court erred in overruling defendant's motion for dismissal on the grounds that he had been denied a speedy trial in violation of his constitutional rights and in violation of TCA Sec. 40--2001.

The warrant for defendant's arrest was dated September 23rd, 1967. A true bill was returned on December 8th, 1967. The transcript includes a motion for speedy trial filed by defendant on May 3rd, 1968. The transcript also shows a second demand for a speedy trial, which indicates it was filed on August 18th, 1969, but which also contains a notation 'nunc pro tunc 11--27--70', with the initials R.W., which apparently are those of the clerk, Ray Woodard. We do not understand the significance of the nunc pro tunc notation, however, the only indication in this record of any proceedings on the motion for a dismissal for failure to provide a speedy trial is found in defendant's motion for new trial. There is nothing in the record to indicate action on any pretrial motion, or any order of the trial court thereon. There is no showing that defendant has been prejudiced in any way by State delay, or that there has been any delay which was unreasonable or improper, or beyond societal interest in the orderly administration of justice.

The actual delay in this case between the date of indictment, December 8th, 1967, and defendant's original trial on August 28th, 1969, was apparently brought...