Foster v. State

• Decision Date: 03 July 1943
• Citation: Foster v. State, 172 S.W.2d 1003, 180 Tenn. 164 (Tenn. 1943)
• Parties: FOSTER v. STATE.
• Court: Tennessee Supreme Court

172 S.W.2d 1003

180 Tenn. 164

FOSTER v. STATE.

Supreme Court of Tennessee.

July 3, 1943

Error to Circuit Court, Wayne County; Joe M. Ingram, Judge.

J. T Foster, alias John Thomas Foster, was convicted of murder in the first degree, and he brings error.

Reversed and remanded.

Ross & Ross, of Savannah, for plaintiff in error.

Ernest F. Smith, Asst. Atty. Gen., for the State.

GAILOR Justice.

At the December 1942 term of the Circuit Court of Wayne County, the plaintiff in error, who will be referred to in this opinion as defendant, was convicted of murder in the first degree and his punishment fixed at 30 years in the penitentiary.A motion for a new trial was seasonably made and overruled.Judgment was entered on the verdict and from the judgment an appeal to this court was prayed, granted and perfected.

It appears from the record that at the term of the Circuit Court of Wayne County in March 1941, the defendant was indicted for the murder of three people, J. Frank Wilson, his wife, Mrs Wilson, and her sister-in-law, Mrs. Sarah Berry.At the same term defendant was also indicted for arson.At the term of said court held in April 1942, defendant was put upon his trial for the murder of J. Frank Wilson, only, found guilty and his punishment fixed at 20 years in the penitentiary.A motion for new trial was granted by the Honorable W. B Turner, the judge before whom the first trial was held, and by whom, on account of defendant's poverty, attorneys had been appointed for his representation.

The second trial was held before the Honorable Joe M. Ingram, Judge, who appointed new attorneys to represent the defendant and protect his interest.These attorneys represented him at his second trial in the circuit court before Judge Ingram, have perfected this appeal, and now represent him before this court.

The record is quite long, and we think it is sufficient to restate only the following facts to dispose of the appeal.

The defendant, Foster, is a small man, weighing only 86 pounds.He is 64 years old, and incapacitated for any strenuous manual labor, on account of a shoulder injury which he sustained in his youth.The deceased, J. Frank Wilson, was 74 years old and very active and independent.Wilson did such heavy labor as was to be done on his farm, while defendant cooked and did the housework.The salient evidence to establish the manner of the commission of the crime alleged and the identity of the victims, as well as the criminal, is that on the night of November 24, 1940, the only two male occupants of Wilson's house were Wilson and the defendant.During that night, or early the following morning, the house caught fire and burned to the ground.The cause of the fire is unknown, and no evidence is introduced or suggestion made of the manner of its starting.

After the fire, in the ashes in the bedroom, which Wilson had occupied, were found the incinerated bodies of three human beings.It is testified that Wilson, his wife, and her sister-in-law, Mrs. Berry, had all intended to sleep in that room on that night.Beside and upon the body with the largest thigh bones were found a pocket knife and metal overall buckles and buttons.No medical or expert testimony was introduced by the State, although a Dr. Wood, who is now in the military service, had examined the remains of the bodies on the morning of the fire and an undertaker from Waynesboro had collected and prepared them for burial.From the size of the bones lying before the fireplace and the fact that the knife, metal overall buckles and buttons were found near these bones, it is inferred that these bones were those of the man Wilson, although no witness absolutely identified them as such.There was some testimony that Wilson had owned a knife similar to that found, and was clad in overalls the day before the fire.

The legs of this male body were completely destroyed by fire.The torso was half consumed, leaving only the charred viscera and large bones of the pelvic region and upper leg for identification as the remains of a man's body.

The skull of this body was not intact.Burned fragments of some substance, which a lay witness imagined were fragments of skull, were found in an area of 18 or 20 inches about the upper part of the torso.These fragments were so burned that it was necessary to use great care in gathering them for burial.However, no exception was taken to their identification by a lay witness as the remains of the bones of the head and skull.

No attempt was made by any witness to identify the remains of the male body as characteristic of the physical aspect of Wilson in life.Whereas, the remains of the body of Mrs. Wilson were identified as being hers on account of the length of the body above the waist.

Much emphasis is laid upon a snuff box found by the bones of one of the women, and the knife and metal buckles and buttons to show that the occupants of the room had not removed their clothes or gone to sleep when the fire started.

The fire blackened head of a sledge hammer was introduced in evidence.One witness testified that he had found the sledge hammer in the ashes of the fire-place about a month after the fire, although two witnesses testified that between the time of the fire and the time the hammer was said to have been found, they had examined the ashes in the fireplace and there was no such article there at the times of their separate examinations.The witness who found the hammer also testified that it was Wilson's hammer and that he usually kept it on the back porch.The defendant denied that he had ever seen the hammer.There was no testimony to show any connection of the defendant with the sledge hammer, or that he was physically strong enough to use it or that he knew the hammer was on the place.

The room in which the three bodies were found was at the front of the house.The defendant occupied a room adjoining it at the rear.There was a locked door which opened into the Wilson's room between their room and that of the defendant.It is also suggested there was a way to reach the Wilsons' room from the defendant's room by going up the stairs through the attic, and descending stairs which led into the Wilsons' room.

The motive for the murders as being robbery is supplied by circumstantial evidence that prior to the fire the defendant had no money and had worked for Wilson for more than a year for bed, board and clothing, whereas, shortly after the fire he bought, for cash, articles of clothing, a second-hand wagon and a small amount of roofing.There was also the testimony of one witness, that at some uncertain time before the fire, the defendant offered the witness $5 if he would lend defendant his shotgun and one shell, "so that he could get old man Wilson's money."This witness was so thoroughly impeached by cross-examination and other discrepancies in his testimony that we consider this story worthy of no consideration or belief whatever.The witness admitted that he had been offered money to tell this story on the stand.

It was developed that up to about two years before the fire, the Wilsons had been country merchants in a small way of business; that Mrs. Wilson tended the store and handled the money; that about two years before the fire she had become a bedridden invalid.At the time of the fire the store had been closed and what remained of the stock removed to a closet in the bedroom where the bodies were found.Such cash as was on hand was also kept in the same closet which was locked.

It appears from the testimony of the defendant, as well as from that of a disinterested witness, that within a year before this fire, after the defendant was living at the home of the Wilsons, and in the same room where the bodies were found, another fire had started in the night by a log rolling out from the fire-place and burning such a large hole in the floor that the flooring had to be replaced by Wilson in an area about four feet square.

A reputable physician testified that Mrs. Wilson had given him a check for $12.50 for medical treatment on the Friday night before the fire, and another witness testified that he had been...