Cooper v. State

• Decision Date: 28 June 1911
• Citation: 138 S.W. 826,123 Tenn. 37
• Parties: COOPER et al. v. STATE.
• Court: Tennessee Supreme Court

138 S.W. 826

123 Tenn. 37

COOPER et al. v. STATE.

Supreme Court of Tennessee.

June 28, 1911

Error to Criminal Court, Davidson County; W. M. Hart, Judge.

Duncan B. Cooper and Robin J. Cooper were convicted of murder in the second degree, and they bring error. Conviction of Duncan B Cooper affirmed, and conviction of Robin J. Cooper reversed.

Beard C.J., and Bell, J., dissenting.

Shields and Neil, JJ, dissenting.

J. M Anderson, Luke E. Wright, W. H. Washington, M. H. Meeks, and Albert G. Ewing, for plaintiffs in error.

Attorney General Cates, G. T. Fitzhugh, and J. B. Garner, for the State.

SHIELDS J.

Duncan B. Cooper and Robin J. Cooper were indicted in the criminal court of Davidson county, Tenn., charged with murder in the first degree, committed November 9, 1908, upon the body of Edward W. Carmack, and later, after a trial lasting some two months, were by a jury of that county found guilty of murder in the second degree, and their punishment fixed at confinement in the penitentiary for a period of 20 years, and, after their rule for a new trial was discharged, judgment was entered against them in accordance with the verdict.

From this judgment they have prosecuted an appeal in the nature of a writ of error to this court, and assigned numerous alleged errors, upon which they ask that the judgment be reversed and the case remanded to the lower court for a new trial.

John D. Sharp was also indicted with plaintiffs in error, but was acquitted by the jury.

The record and the briefs filed for plaintiffs in error and the state are voluminous, the argument at the bar was most elaborate and marked with much ability, and the case has challenged and had the most careful and deliberate consideration of the court.

Duncan B. Cooper and Robin J. Cooper are father and son. Duncan B. Cooper for some years past has been quite prominent in political affairs in Tennessee.

Robin J. Cooper is a young man, and a lawyer practicing in the courts of Davidson county.

Edward W. Carmack was late a Senator of the United States, and was also prominent and active in politics, and a candidate in several political contests that have occurred in the state within the past few years, and at the time of his death, November 9, 1908, was editor of the Nashville Tennesseean, a daily paper published in the city of Nashville.

He was a candidate to succeed himself in a general primary held for the nomination of a United States Senator in 1906, and was defeated. He was again a candidate in a primary held to nominate a candidate for Governor in 1908, and was defeated by Gov. M. R. Patterson.

Col. Duncan B. Cooper and Senator Edward W. Carmack, previous to these contests, were friends; but the former had opposed the latter in both of these contests, and, from an estrangement at first, the feeling between them had become one of hostility, as will more fully appear from the facts to be stated.

Robin J. Cooper, while sharing in the hostility of his father to Senator Cormack, came into this unfortunate tragedy, resulting in the death of the latter, almost altogether through his father.

There is no question but that Edward W. Carmack was shot to death in an encounter with the Coopers on November 9, 1908. The tragedy occurred about 4 o'clock in the afternoon, upon Seventh Avenue North, a street in the city of Nashville, near and south of where Union street intersects it.

The contention of plaintiffs in error is that the homicide was committed in self-defense, or, more correctly stated, by Robin Cooper, in defense of his father and himself.

The first assignment of error is:

" The verdict is not warranted by the evidence."

This assignment, in form, is not good. The settled and uniform practice of this court and the law of this state is that in civil cases, tried by a jury, the verdict will not be disturbed upon the facts, in proceedings in error, where there is any material evidence to sustain it.

The practice and law in criminal cases, equally well established, is that a verdict of guilty, approved by the trial judge, will not be disturbed upon the facts by this court, unless upon an examination of the whole record there is found to be a clear preponderance of evidence in favor of the innocence of the plaintiff in error.

In the case of Leake v. State, 10 Humph. 145, decided by this court in 1849, Judge Turley, speaking for the court, said:

"In holding ourselves not to be bound by the verdict of a jury in criminal proceedings, unless, in our judgment, the proof upon which it rests clearly preponderates in favor of its truth, we do not wish to be considered as meaning that it is wholly ineffectual and inoperative, and that we are left free to consider of the truth of the charge, upon the proof, in the same manner and to the same extent with it, as without it--very far from it. The jurors are the legitimate triers of questions of fact in criminal as well as civil cases, and their verdict must always have great weight with a revising court. But it is not conclusive, except in cases of acquittal; and we are not of those who look upon it as a thing too sacred to be touched, and, therefore, always to be approached with fear and trembling. We have seen too much of the practical uncertainty of such things to have any such feeling in regard to it, and, therefore, readily disregard it, if, in our judgment, we think it should be disregarded. But still, it being against the prisoner, the presumption of guilt is thereby fixed upon him. Previously, the presumption was in favor of his innocence, and this presumption of guilt, which the verdict has attached, must be removed before a new trial can be granted. Before the verdict, the accused is entitled to the benefit of all reasonable doubts of his guilt in his favor. After verdict he has lost this privilege. He cannot obtain a new trial by insisting that there is a reasonable doubt of his guilt, but only by showing that there is a reasonable ground in favor of his innocence. Or, in other words, before verdict the testimony against him cannot be weighed with a view to its preponderancy. It must be of a character to establish his guilt to a moral certainty. But after this proof has been submitted to a jury, and analyzed by their minds, and a verdict of guilty returned, then, in order to obtain a new trial, he must show that the weight of evidence is in favor of his innocence. This much a verdict of guilty, in criminal cases, produces in every case, and it is much in its operation upon the court in relation to granting new trials. But for the verdict, the court, in reviewing the proof, would have to be governed by the common-law principle that the accused is to have the benefit of all rational doubts as to his guilt, and, therefore, could not weigh the evidence. But upon motion for a new trial the testimony is to be weighed, and, unless it preponderates in favor of his innocence, a new trial will be refused."

In the case of Robertson v. State, 4 Lea. 427, that eminent jurist, Judge McFarland, said:

"My conclusion upon the testimony is that it does not preponderate against the verdict and, while there may be doubt as to the defendant's guilt, it is settled that the court does not reverse upon a mere doubt, although a jury might have entertained a doubt; their verdict having negatived the doubt." In the case of Hill v. State, 3 Heisk. 320, Judge Freeman said:

"The verdict of a jury in a case of felony raises a presumption of guilt against the prisoner, and we must see that the verdict is erroneous, before we can reverse on the facts."

Another rule to be applied in connection with this, and really a part of it, is that a verdict is entitled to great weight in considering the credibility of the witnesses examined and conflicts in their testimony.

In the case of Hardwick v. State, 6 Lea, 107, Judge Cooper said:

"The usual argument made in this court, that the evidence fails to sustain the verdict, is not based so much upon the absence of sufficient testimony as upon supposed contradictions in the testimony of the witnesses, and especially the principal witness, which tends to discredit them. These discrepancies were pointed out by defendant's counsel, and discussed with great skill and ingenuity. But, after all, the variance of the same witness, as well as of the different witnesses between each other, are precisely such as always occur in such narratives, and tend rather to strengthen than to discredit the witness, for they show that there was no collusion to make up the same tale. They were, moreover, such as fell within the peculiar province of the jury to consider, and they have shown by their verdict that they did not think them of sufficient importance to affect the result. The verdict is, in our opinion, fully sustained by the evidence."

In Kirby v. State, 3 Humph. 304, Judge Green said:

"But it is not to be understood by what the court say in the case of Dains v. State, 2 Humph. 439, that the verdict of a jury in a criminal case weighs nothing with this court, and that a new trial will be granted if upon the evidence certified in the bill of exceptions we are not convinced beyond a reasonable doubt of the guilt of the party. On the contrary, the jury are the exclusive judges of the credit of the witnesses, and in all cases much must occur before the court and jury, properly calculated to act upon their minds, which cannot be transferred to paper. A verdict, therefore, in all cases, must have great weight with this court."

The plaintiffs in error, as also appears from these authorities have in this court no longer thrown about them the presumption of innocence; but, on the contrary, the verdict of the jury, approved by the trial judge, raises a presumption of...