Cathey v. State

• Decision Date: 13 January 1951
• Citation: 27 Beeler 617,235 S.W.2d 601,191 Tenn. 617
• Parties: , 191 Tenn. 617 CATHEY v. STATE.
• Court: Tennessee Supreme Court

Page 601

235 S.W.2d 601

27 Beeler 617, 191 Tenn. 617

CATHEY v. STATE.

Supreme Court of Tennessee.

Jan. 13, 1951.

James R. Brown, Centerville, for plaintiff in error.

Knox Bigham, Asst. Atty. Gen., for the State.

TOMLINSON, Justice.

This appeal by J. D. Cathey is from a conviction of second degree murder with maximum punishment fixed at confinement in the penitentiary for ten years and one day. The indictment alleges that Eugene Townsend is the name of the person who was killed.

One assignment of error is that the State has failed to establish the corpus delicti. The proof shows without contradiction that Cathey shot the man for whose homicide he was put on trial in this case under the indictment mentioned and that this man died at the hospital to which he was taken. There is no evidence that he was suffering from any illness at the time he was shot. His activities on that day indicate the contrary. He was shot twice at close range with a shotgun inflicting wounds so serious as to necessitate the giving of a blood transfusion while being taken from the scene of the shooting to the hospital. 'Death may be presumed to have been caused by apparent wounds, particularly when there is no suggestion in the record that the deceased died from any other cause than that relied on by the State'. Franklin v. State, 180 Tenn. 41, 44, 171 S.W.2d 281, 282. If, therefore, the wounds were feloniously inflicted, as found by the jury (a question hereafter discussed), then the corpus delicti is fully established. Foster v. State, 180 Tenn. 164, 172 S.W.2d 1003.

The man who was shot by Cathey was a total stranger, in so far as this record shows, in the community and county in which he was shot and had never been seen there by anyone, including Cathey, prior to the night preceding the afternoon he was shot. No one purported to know his name. For this reason, it is insisted that the State has failed to prove that the person shot by plaintiff in error is Eugene Townsend, the name mentioned in the indictment.

The proof shows that the deceased spent the night preceding the afternoon he was shot at the home of Cathey, who, in turn, made his home with his parents. The then sheriff of Hickman County exhibited to the jury a man's coat. He was allowed to testify over the objection of Cathey that Cathey's father brought this coat to him after the shooting with the statement that it belonged to the deceased, and that he, the father, had found it at his, the father's, home. The sheriff then exhibited certain papers which he said he took from the coat. Included among these papers was a registration card issued by a Texas Board and bearing the name of Eugene Townsend. In the course of the testimony of plaintiff in error, Cathey, this coat was exhibited to him, and he testified that it was brought to his house by the man whom he shot the next day.

The testimony of the sheriff that this coat was delivered to him by the person who was the father of plaintiff in error, and that he took from this coat the papers mentioned is testimony as to facts within the purported knowledge of the sheriff; hence, competent. His testimony as to what the father told him is hearsay; therefore, incompetent. But this becomes entirely immaterial since the plaintiff in error testifies that the deceased did bring this coat to his home at the time mentioned.

The record, therefore, establishes it as an undisputed fact that the man whom Cathey killed, and for whose killing he was being tried in this case, had in his coat pocket a registration card bearing the name of Eugene Townsend, the name mentioned in the indictment, that registration card being issued by a Texas Board. The question is whether these facts, there being no evidence to the contrary, are sufficient to support the verdict of guilty on an indictment which charged that the man he killed was named Eugene Townsend. The insistence that this evidence is insufficient is not upon the ground that there is a variance, but simply that the proof fails to show that the deceased bore that name. There is no suggestion that he bore any other name, or that his name was not Eugene Townsend. Compare Joyce v. State, 32 Tenn. 667-668.

While we have not been able to find any case in our reports deciding this point on similar facts, it does seem on principle that the undisputed evidence mentioned is sufficient to support the conclusion that the man killed was named Eugene Townsend. The registration card in his possession is clearly some material evidence to that effect and, therefore, proper for submission to the jury. There being no evidence to the contrary, and no insistence that he had any other name, this seems sufficient. We so hold. Compare 27 American Jurisprudence, page 377, section 327, and the cases there cited.

This brings consideration of this case to the question of whether the evidence sufficiently supports the verdict.

A few weeks prior to this tragedy the plaintiff in error went to Dickson, Tennessee, with Ersie Davidson, his closest friend, and on that day Davidson was murdered by a stranger named McWilliams, who escaped. Cathey was very much interested in the capture of this man and says that he was furnished what was said to be a picture of McWilliams.

A short while thereafter, according to Cathey's testimony, a man by the name of Wallace McGee, who does not testify, came to the home of Cathey about midnight of February 14, 1947 bringing Townsend with him. The purpose of the visit, according to Cathey, was to procure work for this man whom neither he nor McGee knew. Cathey agreed to put this stranger to the job of cutting wood the next morning, he says, and permitted this stranger to spend the night and sleep in the bed with him, Cathey. It does not appear that he ever again thought about the wood cutting.

The conduct of this stranger during the night aroused Cathey's apprehension, he says. Nevertheless, after breakfast Cathey permitted him to...