Brown v. State

• Decision Date: 03 May 1948
• Citation: 210 S.W.2d 670,186 Tenn. 378
• Parties: BROWN v. STATE.
• Court: Tennessee Supreme Court

210 S.W.2d 670

186 Tenn. 378

BROWN v. STATE.

Supreme Court of Tennessee.

May 3, 1948

Error to Criminal Court, Davidson County; Jack Norman, Special Judge.

Percy Brown, alias Hickory Brown, was convicted of committing an assault and battery upon a girl under the age of eight years with intent to carnally know her, and he brings error.

Judgment affirmed.

H. Frank Taylor and Trigg Moore, both of Nashville, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

TOMLINSON Justice.

Albert Percy Brown, alias Hickory Brown, who will hereinafter be called defendant, was convicted of committing an assault and battery upon Barbara Graham, a girl just under the age of eight years, with the intent to carnally know her in violation of Code Section 10785. He was also found to be an habitual criminal as defined by Chapter 22 of the Acts of 1939, carried in Williams Code as Section 11863.1. He was accordingly, sentenced to serve the remainder of his wife in the penitentiary as provided by Section 2 of that law, Code § 11863.2. He has appealed from the judgment of the Court overruling his motion for a new trial and by his twenty-one assignments of error presents the material questions hereafter stated and determined.

The assault occurred near 7 P.M. on May 13, 1946. Barbara had been sent by her mother to a drug store less than two blocks from their apartment. She says that as she was in the act of passing a moving picture theatre on her way to the store she was stopped by a friendly man who wanted her to come and look at his beauty shop, which was in the same city block. After some hesitation upon her part and further urging upon his part, including an offer of a quarter, she went with him, and the two entered the shop after he unlocked the door with a key which he had. No one else was there. He showed her various articles and in the course of doing so carried her to a back room where there were two beds. He pushed her down on one of the beds and thereupon did certain acts which conclusively disclosed an intention to then and there carnally know her. After a brief struggle she escaped without being harmed, went immediately to the drug store, then returned home and told her mother what had happened.

The police were immediately contacted and arrived promptly. Barbara gave them such description of the man as she could. They then procured and exhibited to her a photograph of the defendant. She, according to the officers, positively identified this photograph as being that of the man who had assaulted her, and repeated this positive identification a few days later. A diligent but unsuccessful search for him was at once made. Months later he was found in Texas.

Upon the trial, the State introduced Barbara as a witness. At no time during her direct examination did the State ask her whether the defendant is the man who committed the assault. On cross-examination she testified that she had seen the defendant in the Court room from time to time during the several days of trial and had been looking at him. She was then asked whether he was the man who had assaulted her. She replied 'No'm, that is not him. Q. That is not the man is it? (Indicating the defendant.) A. No'm.'

On the direct examination which preceded, Barbara was asked if the officers showed her 'some pictures' shortly after the assault and whether she identified one of these as being that of the man who assaulted her. Her reply was that the officer handed her only one picture and after looking at it she said 'I think that is him, I am not sure'. She then was asked whether the officer had handed her 'those pictures' during the trial and whether she had gone through them and picked out 'the picture of the man' who assaulted her, and she replied 'Yes sir, I think it was' and that it was the picture which had been exhibited to her shortly after the alleged assault. While testifying she was requested to go through these pictures and pick out this photograph again. She did so, and was then directed to continue to examine the group of photographs and say whether there was another which resembled the man who assaulted her. She selected another and then testified that the two were the same ones that she had previously picked out for the officer during the trial. They were, in fact, photographs of defendant, and were admitted as exhibits over his objection. This action of the Court is assigned as error.

Generally speaking, photographs are admissible in evidence. Hughes v. State, 126 Tenn. 40, 148 S.W. 543, Ann.Cas.1913D 1262. It is said in 20 American Jurisprudence, pages 607, 608, that the reason for the admissibility of photographs as testimony 'rests fundamentally on the theory that they are the pictorial communications of a qualified witness, who uses this method of communication instead of, or in addition to, some other method.' It is said by Wigmore, Volume III, Section 792 that 'a photograph, * * * is a witness' pictured expression of the data observed by him and therein communicated to the tribunal more accurately than by words. Its use for this purpose is sanctioned beyond question.' This authority at Section 745 observes that a photograph defines the recollection of the witness as 'one recorded at or near the time of the events'.

It is said by defendant that the rule just stated does not apply here because of the best evidence rule. It is argued that the identity by way of photographs of the defendant as the person who committed the assault is not permissible since the defendant is present in person and is the best evidence of whether he is the man. This question seems to have been conclusively settled contrary to the insistence of defendant by the decision of this Court in Williams v. State, 179 Tenn., 247, 165 S.W.2d 377, 378, to which we are referred by the State. There it is held that 'only documents or things bearing writing can be within the purview of' the best evidence rule. In that case the Court quoted with approval from Corpus Juris as follows: 'Likewise the best evidence rule does not apply to proof of the nature, appearance and condition of mere physical objects, but these facts may be proved by parol * * * even where the objects themselves are present in court.'

Officers Spann and Cole, after testifying that on the night of the attack Barbara gave them a description of the man, were asked 'after you got the description who did you start looking for'. Each replied 'Hickory Brown'. It is not necessary to consider defendant's insistence that this is hearsay; therefore, incompetent. As pointed out in the State's brief, Officer Ritter had at that time been asked the same question and gave the same answer without objection being made. So, the testimony was merely cumulative and without prejudice.

When Mrs. Graham, mother of Barbara, was called by the State as a witness the Court administered the oath. In the course of her direct examination the State asked her if she had been offered $2,000.00 or any other amount 'to drop the prosecution'.

She replied 'No.' Defendant insists that all this was improper and prejudicial in that it inferred that she had influenced the testimony of her daughter Barbara.

It does not appear that Mrs. Graham had previously been sworn. Further, the swearing of a witness by the Court is a common practice and does not cast the slightest reflection upon such witness. The effect of whatever unfavorable implication may have been intended by asking Mrs. Graham if she had been offered money to drop the prosecution was prevented by her positive answer in the negative.

In considering the insistence that the evidence preponderates against the verdict, it is important to note that according to the testimony of Barbara the man who assaulted her was at or near the theatre when he first stopped her. The evidence shows defendant to have been at that point around that time. This man had a key with which he unlocked the shop. The shop belonged to, and was operated by, Mrs. Taylor, who was a sister of defendant. On the day of the assault, and on the previous day, the defendant had been engaged in painting the interior of this shop. Mrs. Shaver, an employee, left him there when she quit work at 5 P.M. on the day of the assault. The painting was not finished but defendant did not return the next morning or thereafter.

There was a drug store near by. It is shown by two of its clerks that defendant for some time prior to and including May 13, had been in the habit of coming with fair frequency to this store. Both clerks testified that near 6:30 P.M. on that day he came in the store and bought something. This date and transaction was impressed upon their memory because later that night officers came and inquired about defendant, and the clerks were informed at that time of the trouble. They never saw the defendant at the store again.

The owner of the beauty shop had a grown son, Percy Taylor. He was not in good health, and was in the habit of going into the bed room of the shop in the afternoon for a rest. It is conclusively established that he was elsewhere at the time Barbara and the man were in the shop. After Barbara had given the officers a description of the man they immediately started a search for defendant. However, after receiving that description, they likewise brought Percy Taylor to Barbara for the purpose of having her say whether or not he was the man. She told them no.

It may also be reasonably said that the importance of the officers' search for the defendant after receiving a description from Barbara is somewhat minimized by the fact that he was a police character well known to the officers, who likewise knew at the time they began their search that he was a brother of the owner of the shop.

Mrs Graham and...