Clarke v. State

• Decision Date: 02 February 1966
• Citation: 22 McCanless 259,218 Tenn. 259,402 S.W.2d 863
• Parties: , 218 Tenn. 259 John Randolph CLARKE, Plaintiff in Error, Defendant, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Supreme Court

Page 863

402 S.W.2d 863

22 McCanless 259, 218 Tenn. 259

John Randolph CLARKE, Plaintiff in Error, Defendant, v. STATE of Tennessee, Defendant in Error.

Supreme Court of Tennessee.

Feb. 2, 1966.

Rehearing Denied May 23, 1966.

Charles Galbreath, Nashville, James P. Diamond, Carmack Murchison, Jackson, and John Coodin, Johnson City, for plaintiff in error.

George F. McCanless, Atty. Gen., and Edgar P. Calhoun, Asst. Atty. Gen., for defendant in error.

DYER, Justice.

John Randolph Clarke, hereafter referred to as defendant, appeals from a conviction of murder in the first degree for which he has been sentenced to serve thirty years in the State Penitentiary. This crime was committed in Davidson County and, by proper change of venue, the trial was held in Madison County.

Mrs. Eva Jo Herring, a widow employed as a registered nurse, lived with her eighteen year old daughter, Paula Herring, and her six year old son, Allen Herring, in a suburban area of Davision County. In September 1963 Paula Herring entered the University of Tennessee at Knoxville as a freshman. On Friday 21 February 1964 Paula Herring returned home from school to spend the weekend. On Saturday 22 February 1964 Mrs. Eva Jo Herring, in company with two men, left home about 7:00 P.M. leaving Paula, reading a book (All The King's Men) she had borrowed from a school mate, and Allen watching television. Paula was wearing a grey skirt, blouse and an open front grey sweater. This sweater and skirt had been purchased the previous Christmas and this was the first time they had been worn in this house.

Mrs. Herring, with the two male friends, returned home about 11:00 P.M. entering through the unlocked garage and den doors to find Paula, lying face down on the den floor, dead. The victim's skirt was up over her back but her under garments had not been disturbed. The book she had been reading (All The King's Men) was missing. The younger, Allen, said he had watched television and then went to bed. That prior to going to bed his sister (Paula) had received a telephone call. That after going to bed the telephone again rang and he got out of bed to answer it. There was a male voice on the line. Being unable to awaken his sister Allen went back to bed. Allen thought his sister was asleep and had spilled tomato juice on herself.

Upon investigation it was determined death had been caused by two gun shot woulds in the back administered while the victim was on the floor, face down, probably in a semi-conscious or unconscious state. There was a large bruise on the left side of her face below the ear and four bruises on the right side of the face; all caused by a hard object. The coroner fixed the time of death at 9:30 P.M. C.S.T. (Nashville). Paula's watch had stopped at 10:32 P.M. E.S.T. (Knoxville) and it was shown to be her custom, when visiting home, to leave her watch on Knoxville time. One bullet was recovered partially buried in the floor underneath the body and the other one on the floor near the body. These bullets were .32 caliber and fired from the same gun. Paula's sweater was on the couch in this room and it was found to have two holes in it the same distance apart as the woulds in her back. There were blood stains and powder burns around each hole in this sweater. Paula had not been sexually assaulted.

Neighbors had heard a noise at the Herring home sometime between 9:00 and 10:00 P.M. of this night and also heard a car roar off sometime after 9:30 P.M. making a clanging noise as if metal was knocking against metal. The book (All The King's Men) Paula had been reading was found in a vacant lot several blocks away. The witness, who found this book, had heard a loud clanging noise near this lot on this Saturday night. This book, recovered 26 February 1964, was identified by a school mate who had loaned it to Paula.

The defendant met Eva Jo Herring, in the early part of February 1964, at a tavern. Later that night, with her permission, defendant visited at the Herring home taking along some beer. A short time after his arrival they engaged in sexual relations. Although defendant was married he had several girl friends and often stayed out late. After this night defendant did not see Mrs. Herring again but did call her, via telephone, several times.

Defendant and one Al Baker, had been on friendly terms for several years. These two crashed a Christmas party given by one of their girl friends in 1963. In the course of this party a mild skirmish ensued and defendant waved a .32 automatic pistol around. Later defendant, Baker, Joe Hurst and Murray Cook started to Hurst's apartment and on the way defendnat was chided to the effect his gun was loaded with blanks. At Hurst's apartment defendant fired the gun into the snow covered ground beside the sidewalk to prove the bullets were not blanks. Later this bullet was recovered and was found to have been fired from the gun used in this murder.

On the night of this murder, about 7:30 P.M., Baker went to Ruth's Diner and noticed defendant making a telephone call. Upon completing this call defendant and Baker talked for some twenty minutes. Defendant told Baker he had just been talking to a freshman from the University of Tennessee. That he knew this girl's mother, having had sexual relations with the mother, and had invited himself over with a six-pack of beer. That he would make sexual advances to the girl and if not successful would then just wait for the mother. Defendant left this Diner about 8:00 P.M.

On Monday night 24 February 1964 defendant, after being advised of his constitutional rights, was interrogated by the police for several hours and released. Upon release defendant left in a car owned by his wife and it was noted this car, upon starting, made a clanging noise similar to a noise made by metal against metal. All during the course of the interrogation defendant denied any part in this murder, but did admit owning a .32 caliber pistol, which had been stolen from him prior to the murder. The theft of the pistol was not reported to police. Also during the course of this questioning defendant admitted he had taken a dark suit to the dry cleaners that same morning. The police obtained this suit from the dry cleaners. Upon examination experts in the field found woolen and orlon fibers on the front of this suit which were identical to the fibers from the clothing worn by Paula the night of her murder. The expert testifying said it would take more than a casual brushing to transfer these fibers from Paula's clothing to this suit.

Several witnesses, for both the prosecution and the defense, made the trip from the Herring home to defendant's home using different routes. The time recorded for the trip was from fourteen to twenty four minutes depending on the route taken.

Defendant testified, on the night of this murder, he had made the rounds of several taverns from 5:00 P.M. until 9:00 P.M. and arrived home at 9:30 P.M. Defendant's wife testified he arrived home on this night about 9:30 P.M. Although defendant testified in detail as to his whereabouts the testimony of other witnesses is in conflict. Defendant said on this night he was wearing light trousers and an 'Eisenhower' jacket while most witnesses who saw him said he had on a dark suit. Defendant said he went to a place known as 'Cheeko's', conversed with the proprietor, and left at 7:30 P.M. This was denied by the proprietor of 'Cheeko's' who said he did not see defendant the night of the murder. Defendant claimed he was at Ruth's Diner from 8:30 P.M. until 9:00 P.M. and did not see Al Baker nor made a telephone call from this place. Both Ruth (of Ruth's Diner) and Baker testified, when Baker arrived at this diner that night, defendant was making a telephone call and later Baker and defendant had a talk together. Both of these witnesses said defendant left the diner at 8:00 P.M. wearing a dark suit.

The assignments of error may be summarized as follows:

1. The necessary elements of murder in the first degree were not proved.

2. The Court erred in allowing testimony to the effect defendant refused to permit certain scientific tests to be made even though the Court later instructed the jury to disregard this evidence.

3. A suit of clothes belonging to defendant was seized by police in violation of his constitutional rights and evidence collected therefrom should not have been admitted.

4. A new trial should have been granted on newly discovered evidence.

5. The circumstantial evidence allowed reasonable hypothesis inconsistent with guilt.

The defendant was put to trial under a two count indictment charging (1) premeditated murder and (2) murder while attempting to rape. Defendant insists the State has has not proved either premeditation or attempt to rape citing Witt v. State, 46 Tenn. 5 (1868). In the Witt case we find the following:

The fact of the killing being proved, the law presumes only murder in the second degree. Malice is implied from the mere fact of killing; but it is not presumed from the killing alone, that the murder was perpetrated by means of poison, lying in wait, or by any other kind of willful, deliberate, malicious or premeditated killing, or in the perpetration of any of the felonies mentioned in section 4598, of the Code.

Paula was shot to death and malice is inferred from the use of a deadly weapon. Batts v. State, 189 Tenn. 30, 222 S.W.2d 190 (1976); Cooper v. State, 210 Tenn. 63, 356 S.W.2d 405 (1962). She was not only shot once but twice and then in the back while she lay face down on the floor in a semiconscious or unconscious condition from the results of a beating about the face. These facts, accepted by the jury, are enough to support a finding this murder was premeditated. The following from Lewis v. State, 40 Tenn. 127 (1859) is appropriate:

The distinctive characteristic of murdr in the first degree is premeditation. This element is super-added, by the statute, to the common law definition of...