Farmer v. State

• Decision Date: 07 December 1956
• Citation: 5 McCanless 107,201 Tenn. 107,296 S.W.2d 879
• Parties: , 201 Tenn. 107 Clyde FARMER v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 879

296 S.W.2d 879

5 McCanless 107, 201 Tenn. 107

Clyde FARMER v. STATE of Tennessee.

Supreme Court of Tennessee.

Dec. 7, 1956.

W. H. Inman and James K. Miller, Morristown, for plaintiff in error.

Nat Tipton, Advocate General, Nashville, for the State.

NEILL, Justice.

The plaintiff in error, who will be later referred to as the defendant, has appealed from a conviction of murder in the first degree, his punishment being fixed by the jury at 25 years in the State penitentiary.

The indictment under which he was tried and convicted contained two counts. The first count charged that the defendant did 'unlawfully and feloniously, willfully, deliberately, maliciously, premeditatedly, with malice aforethought kill and murder Ray Carter, a reasonable creature in being, and under the peace of the State.'

The second count reads as follows:

'The Grand Jurors for the State and County aforesaid, upon their oath present and say that Clyde Farmer on or about the 3 day of February 1956, in the State and County aforesaid did unlawfully and feloniously kill and murder Ray Carter, a reasonable creature in being, and under the peace of the State, in the perpetration of the crime of arson, that of feloniously, willfully and maliciously burning the dwelling house of Steve Holdway. Against the peace and dignity of the State of Tennessee.'

There was a second indictment returned by the Grand Jury, on the same day as the first, charging the defendant with the crime of arson, in that he willfully and maliciously set fire to or burned the dwelling house of Steve Holdway.

When the case came on for trial the trial judge appointed counsel to represent the defendant, and upon the statement of the District Attorney General that he would ask for the death penalty, he appointed a Court Reporter, one Margo Brown, to take down and prepare the record of all proceedings on behalf of the said defendant. We thus have a correct transcript of the record before us. The counsel appointed by the trial judge, James K. Miller and W. H. Inman, of the Morristown Bar, have ably represented the defendant, and deserve the unqualified commendation of the trial judge and also this Court.

Upon motion of the defendant's counsel the second indictment, charging the crime of arson, was quashed.

The counsel have filed twelve assignments of error. The defendants' counsel concede that most of them need not be considered seriatim. But contention is made that certain errors were committed in the trial of the case. These will be considered following a statement of the evidence upon which the defendant was indicted and convicted.

On the night of February 3, 1956, the residence of Madge Carter was destroyed by fire which resulted in the death of her youngest child, one Ray Carter who was two and a half years of age at the time. The house was constructed of material that was very inflammable and consisted of three small rooms; it is referred to by some of the witnesses as a 'shack'. Madge Carter lived in this house in Morristown with her five small children, all of whom were illegitimate. The defendant had been dating her for several months prior to this tragedy. He was 35 years of age and unmarried. The theory of the State is that he was 'shacking up' with the Carter woman and that he set fire to her house and as a result the deceased, who was asleep in the building, was burned to death.

The Carter woman testified that upon the afternoon of February 3rd she and the defendant had an argument and that he assaulted her and as a result of this assault she took her children to the home of a neighbor. They returned home about 7:00 p. m. that night and apparently retired for the night. About midnight one of her children, a six year old boy, was taken by her to an outdoors toilet. Shortly after they returned to the house the defendant pushed the door open, announced his identity, and came in and created a disturbance. There was a struggle between Madge and the defendant and she eluded him by taking flight to the home of a neighbor, taking her two older children along with her. The deceased at that time was asleep as heretofore stated. Upon reaching the neighbor's house she called the police. Within a few minutes thereafter she saw the defendant enter her house and a few minutes later noticed that the house was on fire.

A greater part of the State's proof purports to show that the fire was of an incediary origin, and that the defendant was the guilty agent. Sheriff Morrison and another officer, Mr. Travis, testified that the defendant told them that when he went back to this house he pulled some paper off the wall, wadded it up, lit it with a match and threw it down on the floor. In his testimony he admitted his relationship with the Carter woman and that he assaulted her on the afternoon preceding the burning of the house. He denied making the above statement to the Sheriff; and also denied being at the house and that he set fire to it.

We think the evidence does not preponderate in favor of the defendant's innocence of this crime.

Contention is made by counsel that since the arson indictment was quashed the defendant could not be convicted under the pending indictment. But this assignment of error must be overruled on the authority of Sullivan v. State, 173 Tenn. 475, 121 S.W.2d 535. The fact that the second indictment for arson was quashed in no way barred the State's right to prosecute the defendant for the crime of murder under the pending indictment for that offense, and show that it was committed in the perpetration of the crime of arson.

It is next urged by counsel that it was error for the court to permit corroborating testimony of the six year old child of Madge Carter. This testimony by the Chief of Police was to the effect that on the day after the alleged homicide this child had narrated to him substantially the same story that he had given from the witness stand.

Generally speaking it is not permissible to corroborate any witness by proof of consistent statements. But there are exceptions to this general rule. One is that where it is insisted that the testimony of a witness is the result of a recent influence it is permissible to show that prior to the exercise of such influence the witness made statements consistent with his current testimony. This finds support in Queener v. Morrow, 41 Tenn. 123; Legere v. State, 111 Tenn. 368, 77 S.W. 1059; and Sutton v. State, 155 Tenn. 200, 291 S.W. 1069. In the instant case it was sought to show on cross-examination that the testimony of the child was the result of what his mother and counsel had hold him to say.

It is next insisted that a new trial should have been granted because a brother-in-law of the Sheriff served on the jury, this relationship being unknown to the defendant or his counsel when he was accepted. This fact is not ground for challenged for cause. Moreover the objection, coming after the verdict, was propter defectum. This question was fully considered by the Court in Walker v. State, 118 Tenn. 375, 99 S.W. 366, and later decisions. The assignment is overruled.

The error next assigned is that the trial judge suggested to the jury their verdict. Upon this question the record shows that when the jury returned into court to report their verdict the foreman stated they found the defendant guilty. The trial judge inquired if they found him guilty of murder in the first degree, to which the ...