Essary v. State
| Decision Date | 04 May 1962 |
| Parties | , 210 Tenn. 220 Bobby ESSARY et al. v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
George Morrison, Jackson, for plaintiffs in error.
George F. McCanless, Atty. Gen., Walker T. Tipton, Asst. Atty. Gen., Nashville, for the State.
The defendant, Bobby Essary, and others as plaintiffs-in-error, defendants below, have been tried, convicted and a fine of $50.00 each has been assessed against them by the jury and approved by the Trial Court for violating Section 39-2805, T.C.A., which section is as follows:
'Any person or persons who shall willfully prowl or travel or ride or walk through the country or towns, to the disturbance of the peace or to the alarming of the citizens of any portion of the state, or for the purpose of damaging or destroying property, or for the purpose of intimidating or terrorizing any citizen or citizens of this state, or for the purpose of causing, through threats or intimidation or other improper means, any citizen or citizens of this state to do or not to do any lawful thing or to do any unlawful thing, shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than fifty dollars ($50.00) nor more than one hundred dollars ($100), and imprisoned in the county jail for not less than six (6) months nor more than twelve (12) months, said imprisonment to be within the discretion of the judge trying the case.'
They have appealed and assigned errors.
The record reveals that Paul Griffith and the several defendants were all employees of the same Company located in or near the City of Dresden, Tennessee. Paul Griffith was employed in a particular part of the plant and he considered that his particular job was essential to the production of certain types or kinds of shoes being manufactured by the Company. At any rate, he refused to leave his job as requested by the defendants herein. They wanted him to do so in order that they might present a more solid front to the employer to secure certain benefits to which they felt they were justly entitled.
At about 4:00 o'clock on the afternoon of the 30th day of March, 1961, these defendants decided to go to the home of Paul Griffith in an effort to persuade him to join with them in their demands against said employer. These defendants got in three separate automobiles and two of these cars proceeded down the highway from Dresden of the road to Paul Griffith's home. At a point these two cars stopped on opposite sides of the road facing the highway in such a manner that some one approaching from the direction of the factory would not see them. The other car remained in town near the factory.
A Mrs. Myrtle Rogers, an aunt of Paul Griffith, came down this same highway from the opposite direction and saw the two cars parked back off of the road as aforesaid. She recognized two of the defendants as being occupants of one of the cars. Her interest became aroused when she saw these two automobiles so parked and when she recognized two of the occupants. She then turned her automobile around and drove back to the point where the cars were parked. After observing more thoroughly, she then drove toward Latham, Tennessee, a community in which she and Paul Griffith lived. As she drove away the two cars pulled out from their parked positions and followed her. It also appears from the proof that the third carload of defendants caught up with all of them at about this time. It might be observed that Paul Griffith left his work at about 4:30 o'clock on this same afternoon.
The three automobiles occupied by these defendants then proceeded to the home of Paul Griffith, but since they did not see his truck they went on through the small town of Latham and drove by the home of Charles Griffith, the brother of Paul Griffith. Charles Griffith was standing in a lot next to his house. According to the proof, one of the defendants made some threatening remarks to Charles Griffith about his brother, Paul, to the effect that automobiles and about eight or ten of the defendants were standing in the road in front of him. After some words were exchanged with these defendants, or some of them, he, Charles Griffith, reversed his automobile and drove to the home of a friend and phoned the Sheriff and told him that he thought there was going to be some trouble at the Paul Griffith home.
In the meantime, these defendants had proceeded to the home of Paul Griffith who testified that he had been to his home and was about to leave again and had the truck door open trying to get in and leave when the three cars loaded with the defendants appeared at his driveway and stopped. Most of them got out while others remained in the cars. The conversation then went on between the prosecutor and the defendants during which time they were making an effort to induce him to join them. When he refused Griffith testified that 'they said they was going to bring me out of there if they had to bring me feet first'. He identified Bill Rainey, one of the defendants, as having said that. Griffith then asked if they were going to kill him and Rainey said he didn't say that they were going to do that but we 'are going to take you out even though we have to take you out feet first'. The reply of Griffith was 'That's the only way you are going to get me out is to take me out feet first.' At that time the prosecutor was talking primarily with Mr. Rainey but he says that some of the other defendants said 'Ye Paul we are going to get you out of there'.
The prosecutor testified that ten or fifteen of the defendants were talking at the same time. Every one telling him what he (one of the defendants) was going to do to me. The prosecutor was asked to describe to the jury the type of language used there in front of his home on the afternoon of March 30 when the defendants came to see him.
We find it unnecessary to quote this language in this opinion, but the record reveals that such language was opprobrious, degrading and highly inflammatory, and which ordinarily precedes physical difficulty and combat between men. These curse words were used in the presence of Myrtle Rogers, her sixteen year old son, Kenneth, his brother, Charles Griffith, and possibly others. On cross-examination he testified that the defendant, Summers, said:--'Well we're going to get you, that's right.' Two of the female defendants used profane language directed to Myrtle Rogers, according to her testimony, which language it is not necessary to express in this opinion, and invited her to come out into the roadway, which she refused to do. These two, or one of them, said 'we wasn't after you, we were after your nephew'. (Paul Griffith). 'We will get you tomorrow'.
Herbert Tuck, a police officer, said that when he arrived at the scene he heard all of them cursing.
Mrs. Paul Griffith says that she heard some of the defendants say that they would get Paul Griffith, and heard the women curse Myrtle Rogers.
Paul Griffith, his wife, his brother, Charles Griffith, and his aunt, Myrtle Rogers, all testify that the defendants were screaming, cursing, shaking their fists, their hair was disheveled and they were acting like an unruly mob on television.
The difficulty between this prosecutor and these defendants had been building over a period of several days, if not weeks, and the reason for the delay of Griffith's arrival at home at the usual time was the fact that he went by his father's home to get a shotgun because he, Griffith, was 'getting mad'.
Thereafter, the defendants were indicted, tried and convicted as aforesaid.
One of the assignments of error is that the preponderance of the evidence is against the verdict of the jury and in favor of the innocence of the defendants. In considering this assignment we must apply the rule that has been established over a period of many years that the credibility of the witnesses and the conflicts in their testimony have been settled by the verdict of the jury which has been approved by the Trial Court.
This Court has on many occasions adopted the language of the Court in the case of Cooper v. State, 123 Tenn. 37, 138 S.W. 826, and we now adopt it again, the same appearing in the headnote on page 37 as follows:
'A verdict of guilty in a criminal case, approved by the trial judge, removes the presumption of innocence, and raises a presumption of guilt, which the accused must overcome upon the record, in order to obtain a reversal on the facts; and such verdict will not be disturbed upon the facts by the supreme court unless, upon an examination of the whole record, there is found to be a clear preponderance of the evidence in favor of the innocence of such convicted...
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