Deberry v. State

• Decision Date: 13 April 1897
• Citation: 42 S.W. 31,99 Tenn. 207
• Parties: DEBERRY v. STATE.
• Court: Tennessee Supreme Court

42 S.W. 31

99 Tenn. 207

DEBERRY v. STATE.

Supreme Court of Tennessee.

April 13, 1897

Appeal from criminal court, Shelby county; L. P. Cooper, Judge.

Harvey Deberry was convicted of assault and battery with intent to ravish a female under 10 years of age. Motions for a new trial and in arrest of judgment being overruled, he appeals. Affirmed.

Cassells & Cassells, for appellant.

Atty Gen. Pickle, for the State.

McALISTER J.

The prisoner was convicted in the criminal court of Shelby county of an assault and battery with intent to ravish a female under 10 years of age, and his punishment fixed by the jury at death by hanging. Motions for new trial and in arrest of judgment having been overruled, the prisoner has appealed.

The first assignment of error is that the verdict was not warranted by the evidence. The victim of the alleged crime was a little white girl, about seven years of age, named Elenora Eigiman, who, with her parents, lived on a farm near Frayser Station, in Shelby county. The prisoner and his wife occupied a room on the premises; the wife being employed to cook, and the prisoner to do such work as might be required. The husband of Mrs. Eigiman had, a short time before this sustained a fracture of the skull. and at the time of the injury to the child was confined at St. Joseph's Hospital, in Memphis. On the day the child was assaulted Mrs. Eigiman had gone to Memphis to see her husband, and left her three children, aged seven, five, and two years, respectively, in charge of defendant and his wife. No other person lived on the place, and no one else was there when she left. Mrs. Eigiman testified that when she left, in the morning, the little girl, Elenora, was complaining of not feeling well, and was only dressed in her nightclothes; that when she returned, late in the afternoon, she found Elenora in bed, nervous and crying, as if in pain. When asked the cause, she made no response, and all that night the child moaned in her sleep. Next morning the mother went to the child's bed, and discovered that her night garments and the bedclothes were bloody. Further examination revealed the fact that the child's parts were swollen and lacerated. The language of the mother is that the child's condition was awful; that the child was crying and trembling, and after much persuasion she finally told her mother that while she was asleep on the bed the defendant came and got on top of her, and hurt her. It appears that when Mrs. Eigiman returned that evening neither the defendant nor his wife were on the premises, and the defendant did not return until about 11 o'clock on the following day. Mrs. Eigiman then confronted him with the child, and accused him of the crime. Defendant denied it, whereupon the child said, "Yes, you did, Harvey; you know you did." The mother thereupon caught hold of the defendant, but he shook her off and left the premises. The proof further shows that Mrs. Eigiman then carried the little girl to Memphis, where she was examined the day after the injury by a physician. The physician testified that he found the child highly excited, nervous, and trembling; that the person of the child was swollen, and very tender to the touch; that the parts showed acute inflammation and swelling; that he found a purulent discharge, and a slight rupture of the hymen; that penetration had been partial, but not complete; that the acute inflammation, purulent discharge, and swelling indicated that the injury was recent. During the course of the examination the physician asked the child who hurt her, and she replied that "Harvey hurt her." The mother was not present when the child made this statement. The child, Elenora, was also examined as a witness. At the date of her testimony she was eight years of age, being only seven at the date of the injury. Her testimony was that, after her mother went to town, Harvey Deberry came in her room; that she was sick and lying down at the time; that defendant got on her and hurt her; that she cried, and tried to push him off; that she told her mother about it; the reason she did not tell her mother at first was that Harvey told her he would kill her if she did, and she was afraid. The witness pointed out Harvey in the court room, and said, "He is the one that hurt me." The record shows that after the crime was committed the defendant fled to Arkansas, and assumed the name of "Frank Berry." He was arrested there, and brought back to Shelby county. Two witnesses were introduced by defendant, but their testimony is wholly immaterial, and throws no light on the issue. One Houston testified that, on the day preceding the day the crime is alleged to have been committed, he and the defendant were employed on the Reiley plantation, pulling and hauling corn; that they carried the corn and deposited it in the granaries on the premises occupied by the Eigimans; that witness was sick the next day, and did not go to work; that he never saw defendant afterwards until he saw him in court; that he saw him frequently before that time. The other witness, Hannah Hudson, testified that she worked for Mrs. Eigiman a month; that she washed the children's clothes, and saw no stains on any of their garments. On cross-examination, witness said she washed for Mrs. Eigiman in the month of September, and did not wash for her at all in October. Defendant's counsel did attempt to throw suspicion upon one Dave Allen, colored, as the perpetrator of the crime. The little girl stated on cross-examination that Dave Allen had pulled up her clothes, but did not hurt her. There was no evidence in the record incriminating Dave Allen as the author of the injury. The only evidence relating to him is found in the statement of the little girl that he had pulled up her clothes, but did not hurt her. This occurred on another occasion, and had no connection with the present injury. We have no doubt of the guilt of the defendant, upon this record.

The second assignment of error is...