Bostick v. State
| Decision Date | 21 September 1962 |
| Citation | 14 McCanless 620,210 Tenn. 620,360 S.W.2d 472 |
| Parties | Mrs. Neva BOSTICK v. STATE of Tennessee. 14 McCanless 620, 210 Tenn. 620, 360 S.W.2d 472 |
| Court | Tennessee Supreme Court |
Will Tom Abernathy, Selmer, Ross & Ross, Savannah, for plaintiff in error.
George F. McCanless, Atty. Gen., Lyle Reid, Asst. Atty. Gen., Nashville, for the State.
Plaintiff in error, Mrs. Neva Bostick, shot and killed her husband, Owens Bostick, with a pistol. For this, she was indicted for murder, tried, and found guilty of involuntary manslaughter, and sentenced to serve one year in the penitentiary.
She appealed in error and has assigned errors insisting that the evidence preponderates against the verdict of guilt and in favor of her innocence; and that the Trial Court erred in refusing four special requests by her for additional instructions to the jury upon her theory that the killing was in self-defense, unintentional, and accidental.
On the trial, there was adduced a large amount of evidence as to the past lives of these parties and as to the circumstances leading up to this homicide. It appears that the Bosticks lived in Selmer and operated a furniture store there. She was 43, and he seems to have been much older. They were married in 1956, this being her fourth and his third marriage. By her prior marriages, she had three daughters, one married and living in Memphis, and two, aged respectively ten and seven, living at the Bostick home in Selmer, and these two children had been adopted by him.
It appears that both the husband and wife were addicted to drinking alcoholic liquors, and this often caused trouble between them, or at least when drunk, they frequently had disagreements and quarrels. They had both been on a continuous drunk for two days at the time of the shooting; and she had no clear recollection of the details of the occurrence.
She had just come back from a trip to Memphis, and an old friend of hers, a Mrs. Fields, had come with her for a visit to her home in Selmer. They arrived in Selmer Tuesday evening September 13, 1960. On the next day (Wednesday) the stores in Selmer were not open; and the Bosticks and Mrs. Fields went in an automobile to Shiloh and Pickwick Dam, where they drove around, bought some whiskey, and each of them had a number of drinks. They came back to Selmer that evening, visited some friends there, had more drinks, and two of the friends, and another man, referred to in the record as a 'strange' man, came to the Bostick home where the drinking was continued until after midnight.
By that time they were all pretty drunk, and Bostick was so drunk that he had 'passed out.' Then Mrs. Bostick and Mrs. Fields and the man, above referred to, decided to go to a nightclub and do some dancing; and he accordingly took them in his pickup truck to Club 45, located on the highway just below the Mississippi-Tennessee boundary line. There, they had more drinks and danced with a number of men until the 'wee small hours' of the morning.
Meanwhile, this man disappeared, and Mrs. Bostick and Mrs. Fields became separated. Mrs. Fields started walking back alone to Selmer, but hitchhiked a ride with a truck driver who put her out somewhere in Selmer, and she called Bostick on the telephone to come and get her. He came in his car and they went somewhere out the highway, where he got some more whiskey, and they returned to the Bostick house and drank some more.
Mrs. Bostick had not come home. She testified that after she and Mrs. Fields had lost track of each other, she became so drunk she fell out, and waked up about 8 A.M. Thursday morning near Corinth, Mississippi, in a parked car with some man whom she did not know. He brought her back to Selmer and allowed her to get out some distance from her home, she not wishing her husband to see her with that man; and she walked the rest of the way home.
As she entered, Bostick met her at the front door. He was drunk, in a great rage, and began cursing and calling her vile names, and threatening to kill her with a pistol he had. He also threatened Mrs. Fields and made both of the women sit on the couch in the living room where he was sitting, and held the pistol on them for the greater part of the morning. Then he told Mrs. Bostick that he was going to behave himself, and handed her the pistol. She took it, said 'I am going to be fair,' and put it under the cushion of the couch.
About that time a customer came to the Bostick home, said a refrigerator he had bought at the store didn't work, and he wanted to exchange it for another one. Bostick was still too drunk to talk to the customer; and Mrs. Bostick and Mrs. Fields went to the store and exchanged the refrigerator. After they had finished with the customer, they found a full half-pint of whiskey in a desk drawer at the store, drank all of it, and then went back to the Bostick home.
When they got back to the house, Bostick reached under the cushion, got the pistol Mrs. Bostick had put there, and began cursing and threatening her and Mrs. Fields. It was then in the late afternoon, and one of the little girls telephoned that she had been let out of school and was ready to come home, and asked that they come for her in the car. Bostick went and picked her up, and then drove to a place where he got some more whiskey, and returned home with the child in a short time. He was still drunk and had the pistol in his outside coat pocket.
This pistol was a .25 caliber automatic. There was another pistol, the one with which he was slain, a .22 H & R revolver, which Mrs. Bostick had had hidden in the bathroom for three or four weeks. All the chambers of its cylinder were loaded, and it, with part of a box of cartridges, was in a pasteboard box, which she had put in the linen closet back behind a board that had been removed near the bathtub.
After he came back with the little girl, with two more bottles of whiskey, which he set on the kitchen cabinet, he sat down on the couch in the living room. He began cursing and threatening Mrs. Bostick, but did not take the automatic pistol out of his pocket. She then decided to disarm him; and she put her knees on his lap, held his arms, and Mrs. Fields got the pistol out of his pocket, and took it with her into the kitchen.
It was shortly after they disarmed him that Mrs. Bostick shot him. There was no eyewitness to the shooting, or the circumstances immediately preceding it, except Mrs. Bostick herself; and, as stated, she had no clear recollection of the details of the occurrence.
The shooting occurred about 5:30 or 6 P.M. Thursday (Sept. 15). The deceased was sitting on the couch in the living room. The little girls, Mrs. Bostick and Mrs. Fields were in the kitchen, the two latter preparing the evening meal (neither of the women nor deceased had eaten any breakfast or lunch). According to Mrs. Bostick's testimony, she saw the two half-pint bottles of whiskey he had put on the kitchen cabinet, and she went to remonstrate with him about this.
She said he was sitting on the couch and she walked back 'in the hallway there,' and asked him why he had brought in more whiskey; that he said "God damn it don't you start on that whiskey or I will kill you,' and began to reach under this couch and I said well I have got one too'; and that she 'whirled into that linen closet and got it.' Telling what followed, on direct examination, she said:
(italics ours).
Under further questions by her counsel, she said that she did not know where the pistol was which they had shortly before taken from him; and that both he and she thought it 'might be or could be under that couch.' She further said she had no intention of killing deceased, and was only trying to 'put him in fear enough that he wouldn't pull the pistol.' She also said:
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