Clapp v. State

• Decision Date: 04 March 1895
• Citation: 30 S.W. 214,94 Tenn. 186
• Parties: CLAPP v. STATE.
• Court: Tennessee Supreme Court

30 S.W. 214

94 Tenn. 186

CLAPP v. STATE.

Supreme Court of Tennessee.

March 4, 1895

Appeal from circuit court, Claiborne county; W. R. Hicks, Judge.

Paris Clapp was convicted of murder, and appeals. Reversed.

W. P Gillenwaters and W. A. Owens, for appellant.

John B Rogars, Fulkerson & Montgomery, and Geo. W. Pickle, for the State.

McALISTER J.

The plaintiff in error was indicted in the circuit court of Claiborne county for the murder of James Cunningham. At the May term, 1894, of said court, he was put upon trial convicted by a jury of the crime of murder in the first degree, and sentenced by the court to suffer death by hanging. The prisoner appealed.

On Sunday evening, December 3, 1893, the body of James Cunningham, a respectable white citizen of Claiborne county was found on the floor of his late residence. The deceased was a single man, who had never been married, and lived by himself in an unpretentious dwelling in an out of the way place, about 20 feet from the Hooper road. He was an industrious man, and had accumulated some property, consisting of land, hogs, cattle, and money. Prior to his death he was known to have $300 in paper currency, a purse of silver, and a small amount of gold. The sum of $55 in gold was found in his house after he was killed. When discovered, the deceased was lying on the floor. His head, still covered with his hat, was resting on his wrist, with a part of the hat between his head and left arm. His face was bloody, and there was a bullet wound in his head, and a corresponding perforation in the hat. This wound was in the back of the head, and there was a wound in the lower jaw, where the bullet had passed out. There were also two bullet holes in the left breast, and one in the back. Two bullets were found in the room,-one imbeded in a log, and one lying upon the floor. The pockets of the clothing worn by the deceased were all turned out, excepting one, which was the left-hand pants pocket. The brother who discovered the body had last seen the deceased on Thursday evening, when the latter had called at the former's house for a horse to go to mill. The discovery of the body was in December. The weather was cold, but the door of the residence of the deceased was found open.

Some circumstances in respect to the appearance of the body and of the room will be mentioned which will cut a figure in the investigation of the case. When the body was found there was in the right hand a small account book and part of a twist of tobacco. The deceased had on his shoes, but they were untied. The room had one bed in the corner. A trunk sat near the bed by the wall. The key was in the lock, and the trunk had the appearance of having been opened. There was a lamp without a chimney on the end of the table, the cap of the burner was turned back, and the lamp had burned out, and there was no fire in the grate. Shortly after the discovery of the homicide one Dobb Moore was arrested on suspicion as the perpetrator of the crime, and upon the examining trial was bound over to the circuit court. Counsel for Moore then prepared a petition for habeas corpus, which was presented to Judge Hicks, and the writ granted; but before the trial it was agreed by counsel for the prosecution that Moore might be discharged. It is proper to say this record discloses no fact or circumstance directly or remotely connecting Moore with the murder. About January 1, 1894, and two or three weeks after the trial of Moore, one M. F. Edington and Sallie Margroves, a disreputable woman, were arrested, charged with this murder; but pending his examination by the justice, and for insufficiency of evidence, the prosecution agreed that Edington might be discharged. The only incriminating evidence against Edington was his intimacy with Sallie Margroves, and his supposed guilty knowledge of the crime. Sallie Margroves was examined as a witness on the preliminary hearing of the case against Edington, and swore that she knew nothing of the murder of James Cunningham. After her examination, and when Edington had been discharged by the magistrate, Sallie Margroves made a statement charging the defendant, Paris Clapp, with the murder, and detailing in full the circumstances attending it. Her statement led to the arrest of the defendant, Paris Clapp, who was bound over by the justice, subsequently indicted by the grand jury, and convicted of the crime by the circuit court.

Sallie Margroves testified on the trial of the defendant, viz.: "I live about a mile and a half from Tazwell, and have known Paris Clapp since he was a child. I knew James Cunningham, the deceased, and lived one-half of a mile from him. On November 30, 1893, about 9 or 10 o'clock a. m., I saw Paris Clapp at my father's. Clapp and myself made an arrangement to meet that night at the forks of the road near my father's house, and go over to my mother's house. We met awhile after dark; talked a little. It was cold. Clapp proposed to go to James Cunningham's to get some apples. We went, and found James Cunningham sitting in front of the fire. He gave us seats, placed some kindling on the fire, and seated himself on a churn to the right of the fireplace. We reached Cunningham's house about 7 o'clock, and remained until 9 o'clock. While there Clapp asked Cunningham if he ever got lonesome, and why he did not marry. Cunningham replied that he was not able to take care of a woman. Clapp asked Cunningham if he had any water. He replied, 'Yes,' and that it was outside the door. Clapp then got up to get some, and Cunningham said, 'You had better take the lamp.' Clapp replied, 'I can find it.' Clapp went out, and I then heard the dipper rattle in the bucket. He then walked down towards the lower end of the porch, and came back to the door with his pistol in his hand, presented it at Cunningham, and said: 'Keep your seat; all I want is your money.' Cunningham replied, 'I have got no money'; to which Clapp replied, 'I know you have.' Cunningham said: 'I took my gold, and left it at New Tazwell, in John Bin's safe, and I have loaned my greenbacks to John Davis.' Clapp then ordered him to turn his pockets, and Cunningham said: 'Paris, are you going to murder me? I will give you a ten-dollar bill if you will go off, and let me alone.' Clapp says: 'I want it all, and I am not going to wait much longer.' Cunningham then put his hand in his left pants pocket, and pulled out a small pocketbook. Clapp says: 'You give that pocketbook to that girl [referring to Sallie], or throw it on the table.' Cunningham threw it on the table. Clapp told me to pick it up. I did so. Cunningham said: 'Sallie, give me back my notes. You won't need the notes.' Clapp said, 'Yes; give them to him'; and I did so. Clapp then told me to look in the trunk. I looked in the trunk, and found a suit of clothes, some cotton goods, and a bill book, but found no money. Clapp says, 'Put them things back good.' He told me to turn down the bed, and 'look good for money.' I turned the bed down, but still found no money.

I then placed the bed back as well as I could. Then Clapp says, 'James, do you ever pray?' I was scared, and ran out of the room. As I started out at the door Clapp says, 'Don't leave here, or I will kill you.' After I got out at the door one shot was fired, and I heard Cunningham say, 'Lord have mercy on me.' I don't know whether I went off the porch or not. Then Clapp shot him twice more. Clapp then came out of the house, and told me to run. I ran out on the road. Clapp says: 'If you ever tell this, I will kill you, or some of my friends will kill you.' I says: 'Clapp, ain't you ashamed to treat me this way? James Cunningham was a good neighbor boy, and a special friend of mine.' I says, 'Clapp, where do you expect to go when you die?' And he says, 'To hell, if there is such a place.' When we got on top of the ridge near my father's, the train blew for New Tazwell, and it was due there at a quarter past nine o'clock. When we got down to my mother's, Clapp stopped, took the hulls out of his pistol, and put them in his pocket. We listened, went up to the house, peeped through the cracks, and saw John Upton and Jim Carroll in my mother's house. Clapp told me not to look scared or excited, but to be cool, as if nothing had happened. We went in the house, and soon Carroll and Upton left. After they had been gone some time Clapp said that he had lost something. He took the light, and he and I went under sister Barbara's room. Then he asked me for the money, and I gave it to him. He counted it, and said there was $118. He gave me $63 to keep, and told me not to spend any of it, but to bury it all, for it might be marked. We then came round to the door. Mother asked him if he had found it (what he pretended to have lost). He said he had, and then went off. It was then about 11 o'clock." The witness also stated that, on the night after Edington was discharged by the magistrate, she took the lawyers in the case and Sheriff Campbell to the woods where she had buried the money, and dug it up. "Sheriff Campbell he scratched down by a stump, and dug up a goblet with money in it, which he now has in his possession." Sallie Margroves also testified that the night James Cunningham was murdered was cold; that there was a good bed of coals in the fireplace; that they left the lamp burning on the table; that the lamp had no chimney; and also that the top was turned back. She further stated that when the deceased turned his pants pocket out, in obedience to the command of Clapp, Cunningham kept his daybook and his tobacco in his right hand. We have already stated that the lamp and the position of the body were found as described by Sallie Margroves when she left the Cunningham house.

We have thus recited the whole testimony of Sallie...