Carter v. State of Tennessee

Decision Date15 April 1927
Docket NumberNo. 4764.,4764.
Citation18 F.2d 850
PartiesCARTER v. STATE OF TENNESSEE.
CourtU.S. Court of Appeals — Sixth Circuit

John E. Garner, of Springfield, Tenn., for plaintiff in error.

Ferriss C. Bailey, of Nashville, Tenn. (L. D. Smith, Atty. Gen. of Tennessee, on the brief), for the State of Tennessee.

Before DENISON and MOORMAN, Circuit Judges, and HICKENLOOPER, District Judge.

HICKENLOOPER, District Judge.

On August 12, 1920, the plaintiff in error, Henry T. Carter, accompanied by one G. C. Vestal, a United States deputy marshal for the Middle district of Tennessee, went to the home of L. G. Wynne, in Wilson county, in said state and district, some 18 or 20 miles from the city of Nashville. Vestal and Carter left Nashville some time between 9:30 and 10 o'clock in the evening, and arrived at the home of L. G. Wynne about or shortly prior to midnight. Upon this journey Vestal carried a warrant for the arrest of one A. J. Morris, a fugitive from justice, and it was contended by Vestal and Carter, and there is no direct evidence to the contrary, that prior to leaving Carter was unwillingly impressed into service as a posseman to assist the deputy marshal in making an arrest of Morris, who the deputy marshal had been advised was in hiding at the residence of Wynne.

Upon arrival at Wynne's residence Vestal knocked upon the door leading into Wynne's bedroom and some conversation took place, followed shortly thereafter by shots fired by Vestal and Carter through the door of the bedroom, one of which shots struck Wynne and caused his death. It is also conceded that a shotgun was fired at least once from the interior of the bedroom, and that the pellets of the charge passed through a carpet weather strip at the base of the door, slightly wounding Carter; but the evidence is in conflict, both as to whether other shots were fired, from rifle or revolver, from the interior of the room, and as to whether the shotgun was discharged before or after the revolver shot which caused the death of Wynne.

At the August term, 1920, of the circuit court of Wilson county, Tennessee, at the instance of M. C. Wynne, prosecutor and a brother of the deceased, the grand jury returned an indictment in two counts against G. C. Vestal, Henry Carter, and one Will Atkinson, charging murder in the first degree in the first count and a conspiracy to murder Wynne in the second count. Upon the petition of Vestal as a deputy marshal and Carter as an alleged posseman acting under the directions and in the assistance of said deputy marshal, the cause was removed to the United States District Court for the Middle District of Tennessee for trial. Verdicts of not guilty were returned as to Vestal and Atkinson, and the jury found Carter "guilty in the manner and form as charged in the indictment of voluntary manslaughter." Motion for a new trial was overruled, and the court sentenced plaintiff in error to an indeterminate imprisonment in the United States penitentiary at Atlanta, Ga., for a term of not less than two nor more than ten years. Error is prosecuted to this judgment.

The evidence disclosed without dispute that approximately two weeks before the shooting in question the plaintiff in error, the defendant Atkinson, one O. D. Ryan, and one Robert Malone went to the residence of L. G. Wynne, and under guise of enforcing the prohibition laws robbed him of most, if not all, of certain whisky possessed by him. The evidence also discloses that, prior to the shooting in question, Vestal and Carter stopped at the residence of Will Atkinson, a short distance from that of L. G. Wynne, and inquired the way to the latter's residence. Atkinson misdirected them to the residence of Robert Waters. At both of these places Vestal stated his name and the position he occupied, although there is some dispute whether he stated to Waters that he was intending to effect the arrest of Wynne or Morris. After the shooting, Vestal and Carter left the premises and returned to their automobile, and at some time after midnight they stopped at the residence of Charles Seay, wakened him, and asked to use his telephone. There was conflict as to the name Vestal then gave, but he called Sheriff Luke McMennaway (who died before the trial) and requested him to bring a search warrant, an automobile mechanic, and a battery, as their car had broken down and he wished the sheriff to go with him to Wynne's house to arrest an ex-convict who was there. He did not say anything with reference to the shooting which had already taken place, nor does the evidence disclose whether this telephone message was or was not necessitated by the fact that the automobile had broken down and that repairs were necessary. It is apparent, however, that the battery had proved insufficient prior to this telephone communication.

The evidence is in marked and direct conflict as to whether any shots were fired from the inside of the room, except that of the shotgun, and as to whether the shot from the shotgun was fired before or after the revolver shots which caused Wynne's death. The house was torn down before the trial, the door only being preserved. Opportunity for verifying the marring of the interior by other bullets, if any, was thus destroyed.

Upon the above testimony it was the contention of the state of Tennessee that Carter and Vestal went to the house of the deceased in furtherance of a conspiracy between themselves and with Atkinson for the purpose of robbing him of any other whisky which might have been overlooked, and to kill Wynne if need be to cover up their crime; that the alleged motive in going there, to arrest Morris, was false and fictitious; that the previous robbery, in which Carter participated, two weeks before, laid the foundation for the fatal episode; that the defendants commenced shooting through the door, without affording the deceased a reasonable opportunity to open it; and that these contentions were established by the general facts and circumstances of the case, by conversations between Atkinson, Carter, and Vestal before reaching the Wynne residence, and by incriminating conversations between Carter and Vestal when being driven back to Nashville after the shooting.

On behalf of the defendants, including Carter, it is contended that Vestal was informed Morris was at the Wynne residence; that he impressed Carter into service as a posseman to assist him in making the arrest; that upon arrival at the Wynne residence the identity of Vestal was announced to Mr. Wynne, as was also the fact that Vestal held a warrant for A. J. Morris; that they were told by Wynne that the door would be opened as soon as he (Wynne) put on his shoes, and that while waiting peaceably upon the outside at least two shots were fired from within, from either a rifle or a revolver; that the shotgun was then discharged, and the pellets wounded Carter, and that Carter and Vestal then opened fire through the panels of the door in necessary self-defense; and that both defendants were there in their purely official capacity as officers of the United States government attempting to make an arrest pursuant to warrant, and that as such officers they were justified in meeting forcible resistance by the use of force. The issues thus sharply defined were very fully presented to the jury by the court in its general charge, to which no exceptions appear of record.

The alleged error most strongly urged upon the court is that the attorney for the state of Tennessee was guilty of misconduct in applying the abusive epithets of "convict," "thief," and "murderer" to the plaintiff in error in his closing argument to the jury. The statement of this alleged misconduct of counsel for the state was stricken from the bill of exceptions by agreement of counsel, and such bill of exceptions now not only lacks any recital of the alleged misconduct, but from the portion which was excised it does not appear what action the court took with reference thereto, if timely exception was in fact taken. Ordinarily "a court of review will not consider objections not made during the trial of the cause and exhibited by the record, unless in a criminal case it appears from the whole record that the error complained of, but to which no objections were made, or exceptions taken, clearly caused a miscarriage of justice." Optner v. United States, 13 F.(2d) 11, 13 (C. C. A. 6). Compare the more radical decisions of Brooklyn Heights R. Co. v. Ploxin, 294 F. 68, 70 (C. C. A. 2); McDonough v. United States, 299 F. 30, 38 (C. C. A. 9); Lucking v. United States, 14 F.(2d) 881 (C. C. A. 7).

Upon authority of the case of Optner v. United States, supra, it is insisted that, notwithstanding the court may have committed no error in ruling upon an objection raised to misconduct, yet a new trial should be awarded, where it is manifest that such misconduct has caused a miscarriage of justice, or, otherwise expressed, where it is clearly apparent that reproof and admonition were wholly impotent to rid the case of the prejudicial effect of such misconduct upon the minds of the jury. Cf. Toledo, St. L. & W. R. Co. v. Burr & Jeakle et al., 82 Ohio St. 129, 134, 92 N. E. 27, 137 Am. St. Rep. 771. This is not, in our opinion, such a case. Not only is the evidence sufficient to support the verdict, but, conceding that in the event of such misconduct the duty rests upon the court to immediately interfere sua sponte, reprimand the offending counsel, and admonish the jury (Watkins v. State, 140 Tenn. 1, 8, 203 S. W. 344), it cannot be assumed, in the absence of a showing to the contrary, that the court did not perform its full duty in this particular. Warder, Bushnell &...

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