Franks v. State
| Decision Date | 17 July 1948 |
| Citation | 213 S.W.2d 105,187 Tenn. 174 |
| Parties | FRANKS v. STATE. |
| Court | Tennessee Supreme Court |
Error to Circuit Court, Wayne County; Joe M. Ingram, Judge.
Jay Franks was convicted of first degree murder, and he brings error.
Judgment affirmed.
C. L. Boyd, of Waynesboro, for plaintiff in error.
Nat Tipton, Asst. Atty. Gen., for the State.
Defendant Jay Franks, was convicted of first-degree murder of Hughes Lynch and his punishment fixed at 99 years' confinement in the State prison. He has appealed and assigned errors.
Deceased Hughes Lynch, was beaten to death at his home about eleven o'clock on Saturday night, September 6, 1947. The killing took place on State Road 114, about five miles southeast of Clifton, in Wayne County. Deceased was a soldier in the United States Army and was home on terminal leave. Defendant was a married man and lived in the vicinity of the home of deceased. During the absence of deceased from his home, defendant became intimate with his wife, and the theory of the State is that this intimacy lay at the base of the homicide. Deceased returned home on terminal leave about a week before the date of the killing. Evidently deceased had been informed of the relations of defendant with his wife while he was in camp, as the father of deceased testified that he talked with defendant about these relations.
The home of deceased was diagonally across the road from that of his father. The first intimation that anyone had of any trouble was when Mrs. Lynch, wife of deceased, came to the home of the father and informed him that her husband had been hurt. Hastening to the scene, the father and sister of deceased found the body of the latter lying on the back porch of his home clad in shorts. There were five wounds on the skull of deceased, and the physician summoned testified that either one of the five would have proven fatal. Blood was found in various places in the bedroom which deceased occupied.
The principal witness for the State is the seven-year-old daughter of deceased. This little girl testified that she awoke during the night for the purpose of answering a call of nature and going out on the back porch she saw her father standing at the water tank, and that two men, one of whom she said was defendant, were standing under a tree near by. She further testified that after completing her mission, she went back into the house and a few minutes later she heard the sound of blows toward the back porch.
Defendant was arrested shortly thereafter and questioned by the district attorney general and the sheriff. He made a statement in substance to them that he had been intimate with deceased's wife and he had learned of threats made by the father of deceased against him on account of these illicit relations. In this statement he stated that on Friday before the killing on Saturday night he met the wife of deceased in a pasture and told her deceased had threatened to kill him. He asked her to write a note imitating the handwriting of deceased as nearly as possible and also dictated the contents of the note, so it would appear that deceased had left the country. He told her that after he killed deceased he would undertake to dispose of the body. Defendant also stated that he told the wife of deceased to send him to the pasture after the cows the next day, the day of the homicide, and he went to the pasture with a shotgun but deceased did not come.
In this statement defendant further stated that on the night of the killing he went to the home of the deceased and picked up a stick on the way; that he went near the back door and waited for about 10 or 15 minutes and hearing no sound inside, knocked on the back door three times, as prearranged with deceased's wife, and deceased came to the door, opened it and said, 'What in hell are you doing here?' Defendant also further stated that he then struck deceased on the head with the stick and he fell to his hands and knees; that he got up, turned and started in the house and hallooed for help; that he hit deceased the second time with this stick and he fell; that his wife started to wash his head and then went in the house; that he asked her if she had written the note and when she advised him in the affirmative, he struck deceased the third time on the head with this stick.
On Monday, following the killing on Saturday night, a note was found under the linoleum rug in a room of the home of deceased, with his first name signed thereto, stating that he was leaving and was not coming back. The testimony of deceased's sister, who was familiar with his handwriting, was to the effect that this note was not in the handwriting of deceased.
Defendant testified that on a number of occasions the father of deceased had threatened him, the substance of these threats being that if he and deceased ever got him out alone they would beat him up. He also testified that when he saw deceased's wife out in the pasture on Friday afternoon she told him that deceased had told her he was going to kill him--that they both could not live in the same neighborhood. Defendant admitted that he saw deceased's wife in this pasture on Friday afternoon, and also admitted that he told her to write a note but denied that he told her what to put in it. Defendant also denied going to the Lynch pasture on Saturday afternoon but testified that he went to Clifton.
Defendant further testified that on the night of the killing he left the home of his brother-in-law in his truck and left the truck in some bushes near the home of deceased; that he went to the back door of deceased's home and picked up the stick to protect himself; that his purpose in going there was that deceased's wife had told him her husband was going to Clifton, a nearby town, to a cakewalk that night and he wanted to tell her to meet him in town on the following Monday; that before knocking on the door he waited for 10 or 15 minutes and hearing no sound, knocked on the door three times; that deceased immediately opened the door and said, 'What in the God damn hell are you doing?'; that he then struck deceased one time on the head with this stick and he fell on his hands and knees, then jumped up and turned around in his face and he hit the second time; that when deceased started to get up after he had hit him the second time, he then hit him the third time and knocked him back down. Defendant admitted that he saw no weapon in the hands of deceased, and did not claim that deceased made, or attempted to make, an assault upon him. Defendant denied that he saw the little girl of deceased on that night.
We are of opinion that the jury was well warranted in concluding the killing came from deliberation and premeditation. Defendant went to the home of deceased at this late hour at night armed with a stick. The proof is that deceased's head showed five wounds. The medical testimony is that these were separate wounds and of such a nature as to be incapable of having been produced by the same blow. From the testimony of the little girl, and also from the medical testimony and the physical facts, the jury was warranted in concluding that deceased was called out of his home and that defendant took his life with this stick deliberately. From this evidence we think the jury was justified in finding that the purpose to kill deceased had been formed by defendant a day or two before the killing, and it is well settled that where the purpose to kill is formed coolly and deliberately, it is murder in the first degree, even though it be executed in passion.
In Leonard v. State, 155 Tenn. 325, 337, 338, 292 S.W. 849, the Court quoted approvingly from Vol. 29, Corpus Juris, pages 1116-1117; 40 C.J.S., Homicide, § 33, as follows:
We think the facts in the instant case present a stronger state of facts than did the Leonard case, in that in this case the killing could not be said to have been done under any passion that the law recognizes.
It is insisted that the officers guarding the jury were not properly sworn. The record shows that on the first morning of the trial six veniremen were accepted as prospective jurors and at the noon adjournment, two officers were properly sworn to guard them. Defendant contends that the officers should have been resworn after the remaining jurors were accepted. We are of opinion that the duty of the officers is a continuing one after their oath, and this duty also extends to jurors later selected. Johnson v. State, 67 Tenn. 450; State v. Driver, 88 W.Va. 479, 107 S.E. 189, 15 A.L.R. 917.
It is next insisted that the trial judge was in error in permitting the seven-year-old daughter of deceased to testify. This little child was examined by counsel and upon her examination, in answer to a question as to what becomes of children who do not tell the truth, made the statement that they did not go to Jesus. We think this evidence shows a recognition of a state of future punishments and rewards. We have no case in this State directly in point, but we quote from the case of Wheeler v. United States, 159 U.S 523, 525, 16 S.Ct. 93, 40 L.Ed. 244, 247, as follows: ...
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