Butler v. State

• Decision Date: 16 January 1948
• Citation: 207 S.W.2d 584,185 Tenn. 686
• Parties: BUTLER v. STATE.
• Court: Tennessee Supreme Court

207 S.W.2d 584

185 Tenn. 686

BUTLER v. STATE.

Supreme Court of Tennessee.

January 16, 1948

Error to Criminal Court, Smith County; John A. Mitchell, Judge.

Joe Butler was convicted of assault with intent to commit voluntary manslaughter, and he brings error.

Judgment affirmed.

Solon Fitzpatrick, of Carthage, for plaintiff in error.

J Malcolm Shull, Asst. Atty. Gen., for the State.

TOMLINSON Justice.

Plaintiff in error, Joe Butler, hereafter called defendant, was indicted for assault with a rock upon Thomas Hughes with the intent to commit murder in the first degree, the indictment being predicated upon Code, Section 10797. The Court in its charge and of its own motion submitted to the jury only the question of whether the defendant was guilty of assault with intent to commit voluntary manslaughter or any less offense necessarily embraced therein.

Defendant appeals from a conviction of assault with the intent to commit voluntary manslaughter. He was given a fine of $250.00 and sentenced to jail for six months. While various reasons are relied upon for reversal, the principal insistence, as we understand it, is that there is no evidence that Hughes, the person assailed, was struck with a rock, and that, therefore the case must be reversed under the authority of Witt v State, 46 Tenn. 5, 8. Hughes was unable to testify because of a previous judgment of infamy. Consequently his brother, who did not witness the affair, was prosecutor.

The difficulty occurred around 5 o'clock in the afternoon at a beer tavern of McCullen, a witness called by the State. Defendant and his witnesses had each imbibed several bottles of beer since 1 P. M., and defendant admits that he 'was drinking' at the time. When they reached this tavern the three companions of defendant entered. Very shortly thereafter defendant entered and about that time McCullen noticed Thomas Hughes lying unconscious in front of the place and asked the defendant who hit him. The defendant said that he hit him and gave as his reason that 'I just didn't like what he said to me'. McCullen says that he then 'I got Thomas (meaning Hughes) inside and was trying to----'. Here he was interrupted, and next testified that at that time he saw defendant hit and knock unconscious on the outside a boy by the name of Price. Price was summoned as a witness, but did not appear, as, in cases of this character, so often occurs. As McCullen was bringing the body of Hughes inside he noticed a rock as 'big as my fist lying there' where Hughes' body was found out in front. The front of McCullen's place is paved from the entrance to the building for the entire distance to the highway. The rock was, therefore, brought by some one to the place where it was found beside the body of unconscious Hughes. There was a wound a little above and behind the right ear of Hughes. While still unconscious he was taken to the hospital, and remained there four or five days. He was then taken home and remained in bed for a week. The doctor who attended him was out of the State at the time of the trial.

The defendant's version of the matter is that he met Hughes coming out of the beer tavern as he was going in and that Hughes without any provocation called him a vile name, and that when he protested Hughes inquired what he intended to do about it and ran his hand in his pocket. Thereupon, defendant says, he hit him in the mouth with his fist 'because he asked me what I was going to do about it'. The undisputed evidence establishes it as a fact that there were no bruises or cut places on the mouth of Hughes or anywhere around the front part of his face. Defendant denies that Hughes was hit with a rock and disclaims any knowledge of the rock found beside his body. The three companions of defendant furnish negative testimony that they did not see the rock or difficulty, being in the tavern at the time the difficulty occurred on the outside. Some facts were developed on the cross-examination of these witnesses which the jury might very well view as casting some doubt as to the credibility of at least some of these three witnesses. The defendant likewise denies hitting the Price boy.

The evidence establishes it beyond doubt that Hughes was struck by the defendant from behind or partly behind and that the blow inflicted was very severe and that beside or practically beside his body was a rock as big as a man's fist which had necessarily been brought there by some one. The utmost of defendant's claim is that he hit Hughes 'because he asked me what I was going to do about' him calling defendant the epithet above mentioned. The admitted assault was extremely vicious, as evidenced by its effect, and unwarranted either in fact or law. If Hughes had died this defendant would have been guilty under this indictment of nothing less than voluntary manslaughter, and hence guilty here of the assault with intent to commit voluntary manslaughter, unless the insistence of defendant that there is no evidence that a rock was used in making this assault is well taken.

Perhaps counsel, in urging upon us that there is no evidence of the use of a rock in making the assault, has either overlooked or failed to give proper value to the well settled rule stated in Thompson et al. v. State, 171 Tenn. 156, 160, 101 S.W.2d 467, 468, in this language: 'It is well settled that 'all of the elements constituting the corpus delicti may be proven by circumstantial evidence.'' The experiences and common observation of man establishes it as a fact that the severity of this blow was much beyond that which would be inflicted by a lick with the fist. It follows necessarily that some weapon other than the fist was used in inflicting this blow. Beside the body of the person assaulted was a rock which did not belong there and the presence of which can only be explained by the fact that it was brought there. These facts and circumstances make necessary the conclusion that the weapon used by the defendant in making this assault was that rock. The result of this conclusion is to overrule the insistences directed to the preponderance of the evidence.

Considered in logical order, the next insistence is that the Court was in error in permitting McCullen to testify about the defendant hitting the Price boy very shortly after he had assaulted Hughes. We are inclined to think that this evidence was competent as a part of the res gestae, but we find it unnecessary to consider and determine that in view of Code, Section 10654 which forbids a reversal on the ground of error in the improper admission of evidence unless it shall affirmatively appear that the error in question affected the result. It does not affirmatively so appear in record. In fact, we are satisfied that had this evidence been excluded, still the jury would have returned the same verdict and assessed the same punishment. The Court instructed the jury that the alleged assault upon Price could only be looked to as illustrating defendant's frame of mind. That frame of mind was fully illustrated in the assault he made upon Hughes. It must not be overlooked that the practically undisputed evidence is that the assault upon Hughes was very vicious and unwarranted, and its effect came near to fatality.

The next alleged error is in the failure of the Court to charge as requested by the defendant that it would be the duty of the jury to return a verdict of not guilty unless it found beyond a reasonable...