Crittendon v. State

• Decision Date: 16 July 1928
• Citation: Crittendon v. State, 8 S.W.2d 371, 157 Tenn. 403 (Tenn. 1928)
• Parties: CRITTENDON v. STATE.
• Court: Tennessee Supreme Court

8 S.W.2d 371

157 Tenn. 403

CRITTENDON v. STATE.

Supreme Court of Tennessee.

July 16, 1928

Appeal from Circuit Court, Weakley County; R. A. Elkins, Judge.

W. A Crittendon was convicted of murder in the second degree, and he appeals.Affirmed.

Rice A Pierce, of Union City, and L. E. Holladay, of Dresden, for appellant.

Roy H Beeler, Asst. Atty. Gen., and R. E. Maiden, of Dresden, for the State.

SWIGGART J.

The plaintiff in error, W. A. Crittendon, has appealed from a judgment of the circuit court of Weakley county, rendered upon a conviction for murder in the second degree, carrying with it a sentence to the penitentiary for an indeterminate term of not less than 10 years nor more than twelve years.

In support of an assignment of error that the evidence preponderates against the verdict, the plaintiff in error relies upon the law of self-defense.

The plaintiff in error and the deceased, W. F. Alexander, men of mature years, were first cousins.It appears from the record that Alexander was prosperous in a measure, while Crittendon had suffered financial distress.Crittendon's land, upon which his father had lived before him, was under the weight of two mortgages, upon which interest was in default.Upon the solicitation of a banker, holder of the second mortgage, the equitable title was transferred from Crittendon to Alexander, upon the assumption by the latter of the indebtedness against the land.Some difficulty then arose about possession.There were two tracts, and Alexander wanted to place his two sons on the two tracts, and insisted upon immediate possession as a condition to the transfer.Crittendon gave possession to one tract, but a tenant, whom he had recently placed on the other tract, demanded compensation for moving.The tenant and the Alexanders visited Crittendon about this at night, calling him out of bed.Crittendon told Alexander that he had acted as if he(Crittendon) had nothing to do with the land, and that they all had "treated him dirty."Plaintiff in error admitted this conversation, and testified that he told Alexander he had "acted a dirty damn rascal."It is very clear that the plaintiff in error considered that he had been treated very harshly by the Alexanders.

After this interview there appears to have been no communication between the plaintiff in error and Alexander, until the day of the homicide, a year later.The ill will appears to have been mutual, and evidence was offered by the plaintiff in error that the deceased had made threats against him, to the effect that he would get rid of him, one way or another.It appears that the deceased had objected to a farmer in the community renting his land to the plaintiff in error.

On the day of the homicide the parties met at a family cemetery, for the purpose of an annual weed cutting.The plaintiff in error came with an uncle, Blake Crittendon, while the deceased came with another uncle, Milton Crittendon.The plaintiff in error and deceased were both nephews of Blake and Milton Crittendon.

The parties to the homicide did not speak to each other, until Blake Crittendon and the plaintiff in error had gone to a nearby house for water, and had returned.According to the undisputed proof, the plaintiff in error then approached the deceased, who was working with his hoe, and asked why he had accused him of operating a still.

The version given by Milton Crittendon is that the deceased made no reply to the plaintiff in error, whereupon the plaintiff in error asked if he was not going to talk to him.Thereupon the deceased told him to go on and let him alone.The plaintiff in error then said, "You said it, and don't deny it," and the deceased again told plaintiff in error to go on and let him alone.Thereupon, according to Milton, the plaintiff in error struck deceased with the hoe with which he had been working, and struck a second blow.At the first blow the deceased was leaning on his own hoe, and after the second blow the deceased struck at the plaintiff in error, who was then making his third blow so that the hoes clashed.Milton Crittendon testified that the plaintiff in error struck the deceased a fourth blow, after which the deceased fell, and Milton then took hold of the plaintiff in error.

This version of the homicide is in substantial accord with a statement of the deceased, offered in evidence as a dying declaration.

There is little or no conflict between Milton Crittendon and the plaintiff in error, except with reference to the actual striking of the blows.The plaintiff in error admitted that he asked the deceased, "What made you do what you did over at Union City?" and that the deceased made no reply.He testified that he then asked the deceased why he could not talk to him, and that the deceased, in a harsh way, told him to go away and let him alone.He testified that he again asked deceased what made him do what he did, and that deceased, being left-handed, then turned to his left, and struck him the first blow, making a gash over his eye and cheek.The plaintiff in error testified that the deceased struck him twice, and that he himself struck the deceased only two blows.

Blake Crittendon, the other uncle of the two men, testified that the deceased first struck the plaintiff in error, just after telling plaintiff in error to go on and let him alone; but his testimony is rendered comparatively valueless by the following question and answer:

"Q. 25.At the time he struck Abe, was or not Abe Crittendon making an effort to hurt him?

A.I don't know whether he was or not, but he hit him pretty quick after he made the first lick."

If the plaintiff in error had drawn his own hoe, in the act of striking the deceased, when the latter struck the first blow, the plaintiff in error would be in no position to rely upon the law of self-defense, to excuse the homicide, and the testimony of Blake Crittendon does not negative the jury's finding that the plaintiff in error was the aggressor.

Blake Crittendon further testified that plaintiff in error struck deceased only two blows, and that the deceased struck the plaintiff in error only one blow.

Blake Crittendon thus corroborates Milton, and contradicts the plaintiff in error, as to the number of blows struck by the deceased.

Both the plaintiff in error and Blake Crittendon are contradicted by the testimony of Dr. Chitwood, the physician who first attended the deceased, as to the number of blows struck by the plaintiff in error.Dr. Chitwood testified that, in addition to the principal wound, the deceased had been struck another lick on the back part of his head, and also a lick across his arm.This testimony corroborates Milton Crittendon in his statement that the plaintiff in error struck three or four blows, and contradicts the testimony of the plaintiff in error and Blake Crittendon that only two blows were struck.

No feeling against the plaintiff in error is shown on the part of Milton Crittendon, and his good reputation was affirmatively proven, without contradiction, by the testimony of six witnesses.An effort at impeachment was made by the testimony of three witnesses that in conversation Milton Crittendon had said that he looked up and saw the two men fighting, and could not tell which struck the first lick.

Impeachment by such method is recognized as the weakest form of impeachment, for obvious reasons, and we think it was a question for the jury to determine whether Milton Crittendon made this statement, and, if so, whether it was sufficient to authorize a rejection of his testimony.

The state showed cause for ill will on the part of Blake Crittendon toward the deceased, in that the deceased had notified Blake to stay off of his property.

Joe Crittendon, a cousin of the parties, testified that Blake Crittendon told him he did not know who struck the first lick, and the first five questions of the cross-examination of Blake Crittendon, together with the question and answer hereinabove quoted from his examination in chief, clearly indicate an unwillingness on the part of the witness to state very positively that the deceased struck first.

Four witnesses testified that the reputation of the deceased for peace and good order was good.

We are altogether unable to find a preponderance of evidence against the verdict.The nature of the inquiry begun by the plaintiff in error evinced hostility toward the deceased; while the answer of the deceased manifested an inclination to avoid trouble and a desire to be let alone.Nothing is more irritating, or more calculated to arouse anger in a person with a grievance, than a refusal of his adversary to talk to him.If the testimony of Milton Crittendon stood alone, it bears inherent evidence of reasonableness and truth, and we could not say that the testimony of the plaintiff in error and of Blake Crittendon constituted a preponderance against it.The issue was largely one of credibility, which the verdict and judgment of the trial court have conclusively determined.

The dying declaration of the deceased was developed in the testimony of four witnesses, Dr. Chitwood, Mrs. Browder, a sister-in-law of the deceased, Mrs. Alexander, the widow, and Knox Alexander, a son of the deceased.The first statement was made to Dr. Chitwood, who repeated it to the jury as a disinterested witness.There is no such difference in the statements repeated by the interested witnesses as to indicate that their testimony was influenced by their natural bias.

Before any of the evidence as to the dying declaration was permitted to go to the jury, the court heard the testimony of the four witnesses, and of others, as to the absence of any hope of recovery on the part of the deceased when the declarations were made.

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