Frazier v. State

• Decision Date: 28 January 1907
• Citation: 100 S.W. 94
• Parties: FRAZIER et al. v. STATE.
• Court: Tennessee Supreme Court

100 S.W. 94

FRAZIER et al. v. STATE.

Supreme Court of Tennessee.

January 28, 1907.

Error to Circuit Court, Roane County; George L. Burke, Judge.

W. R. Frazier and another were convicted of murder, and they bring error. Reversed and remanded.

Sam E. Young, W. L. Welcker, Frank McElwee, Breazeale & Staples, and A. P. Thompson, for plaintiffs in error. Attorney General Cates, J. L. Nicholas, and Wright, Wright & Haggard, for the State.

SHIELDS, J.

The plaintiffs in error, W. R. Frazier and John Williams, were indicted upon a charge of murder in the first degree for killing one Jordan Miller, at the November term, 1905, of the circuit court of Roane county. They were tried at the succeeding March term of that court upon their plea of not guilty, and were by the jury found guilty of murder in the first degree, with mitigating circumstances. Their motion for a new trial was overruled, and the trial judge, disregarding the finding of the jury of mitigating circumstances, imposed a death sentence. From this judgment they have prosecuted an appeal in the nature of a writ of error to this court, and have assigned several errors upon the action of the trial court in overruling their motion for a new trial and entering judgment against them.

The uncontroverted facts are these:

Jordan Miller, the deceased, lived in the mountains of Roane county, about seven miles from the town of Rockwood. John Williams lived within about one mile of him, probably in the direction of Rockwood. W. R. Frazier lived about midway between Miller's house and Rockwood, but not directly upon the road usually traveled by Miller in going to that town. W. R. Frazier and Jordan Miller, some two years before the homicide, had had a difficulty in the town of Rockwood, in which Miller had assaulted Frazier with a knife, and the latter had knocked the former down. Frazier had been indicted for his act, and tried and acquitted. From that day bad blood had existed between the two men, and Miller had repeatedly threatened to kill Frazier. These threats had been communicated to Frazier, and he was evidently afraid of Miller, and in constant apprehension that he would make good his many violent threats. Williams had also had a difficulty with Miller about working a road, but it does not appear to have been a serious one. Miller was a bold, violent, and dangerous man, frequently resorting to force and violence to avenge or right supposed grievances against his neighbors, and had the reputation in the community of a man who would do violence to those whom he believed had wronged him, and execute threats made. He had four sons residing with him, all grown, or so nearly so that they could carry and use arms, and the father and sons were in the habit of carrying their guns with them wherever they went. At the time of the homicide, among them, they owned one Marlin rifle and four shotguns.

The homicide took place on the mountain between Jordan Miller's and Rockwood, and about four miles from the house of Miller, early on the morning of August 16, 1905. Jordan Miller and his two sons, James and Charles, were going to Rockwood in a wagon. Jordan and James were riding in the wagon, and Charles was walking behind, carrying a mowing scythe. The plaintiffs in error were on the roadside, and a flight ensued, in which Jordan Miller and Charles Miller were both killed by shots which were fired by the plaintiffs in error. James Miller escaped, and is the chief witness for the prosecution. The plaintiffs in error testified in their own behalf.

Jordan Miller was found below the road some 25 or 30 yards, on the mountain side, with several bullet holes in him, two of which were in the head, and his face was powder-burned. His shirt was also on fire when he was found, something like one hour after the shooting. Charles Miller was found in the road lying upon the scythe. He had one bullet wound in the breast and one in the face. His chin was blown off, evidently with a shotgun, and his face was powder-burned. No arms were found near them.

The plaintiffs in error were tried in this case for the homicide of Jordan Miller.

The contention of the state is that the plaintiffs in error were lying in wait upon the public road for Jordan Miller, and that when he and his sons came along, unarmed, the former, without provocation, opened fire upon them and killed Jordan and Charles.

That of the plaintiffs in error is that they were on their way to the Bledsoe mines, which were situated between Frazier's house and Rockwood, where Frazier had some business, and to Rockwood, where they both had some business in a bank; that they had no information that Jordan Miller or his sons would be on the road that day, and had no expectation of meeting them; that they had stopped in the edge of the road for a few minutes in order to allow Williams to attend to a call of nature; that Jordan Miller, his two sons, James and Charles, and another man, whom they took to be one Walker, a relative of Miller, came along; that, when Jordan Miller saw Frazier, he arose in the wagon and said, "Now, God damn you; I have got you," and opened fire upon him with a double-barreled shotgun, and the man Walker, who was walking behind the wagon with Charles Miller, at the same time began to fire upon plaintiffs in error with a large pistol; that they, having with them a rifle and a shotgun, returned the fire; and that in this way Jordan and Charles Miller were killed. They further say that the man Walker ran off, carrying the shotgun used by Miller and the pistol used by himself. They were arrested at their homes that day, and denied that they had shot the Millers. They explain this by stating that they had agreed to do so for fear the Miller boys would do violence to their families.

James Miller testified that his father, brother, and himself were unarmed and made no assault whatever upon the plaintiffs in error, but that the plaintiffs in error came out from the bushes and began to fire upon them without provocation. The effect of his evidence is that Frazier shot his father and Williams his brother Charles. He also testified that Walker was not with them that morning. There is also some circumstantial evidence tending to sustain the theory of the state.

If the contention of the state is true, the plaintiffs in error were properly found guilty of murder in the first degree. If that of the plaintiffs in error is true, they should have been acquitted. The jury found for the state, and we cannot say from this record that the evidence preponderates against the verdict. Therefore, without any discussion of the evidence, we must hold that the plaintiffs in error are not entitled to a reversal upon the facts.

There are a number of errors of law assigned, of which we will now dispose.

1. The first of these is that the trial judge failed to charge upon all the degrees of homicide and offenses included in the indictment. The charge upon this subject is in these words: "A charge of murder in the first degree, by operation of law, embraces a charge of murder in the second degree, of voluntary and involuntary manslaughter, and assault and battery, and simple assault. Manslaughter of neither grade, an assault and battery, and simple assault, under the proof in this case, do not lie."

The trial judge then proceeds to properly define murder in the first and second degrees, and does not again refer to the lesser degrees of homicide or to the offense of assault and battery. We do not think the omission to charge the law upon the subject of manslaughter and assault and battery, and the statement, in effect, that they are not involved in this case, is error of which the plaintiffs in error can complain. It is now well settled in this state that an error which will entitled a plaintiff in error to a reversal of a judgment against him must be one that prejudices him and affects the merits of the case. The contentions of both the state and the plaintiffs in error in the trial below excluded all idea that the plaintiffs in error were or could be guilty of the offenses upon which the jury were not instructed. The contention of the state was that the defendants were lying in wait for the deceased upon the public highway, and shot them down without provocation, in consequence of an old grudge, and were therefore guilty of murder in the first degree; while that of plaintiffs in error is that the meeting was sudden and accidental, and that Jordan Miller and another man first opened fire upon them, and that they shot only in their necessary self-defense. If the contention of the state upon the facts is true, it is certain that the plaintiffs in error were guilty of murder, and any instructions upon the lesser grades of homicide would have been irrelevant. If the contention of the plaintiffs in error is true, they could not possibly be guilty of any offense; for it was necessary for them to kill Jordan Miller in justifiable self-defense. They had the right to carry their self-defense to the extreme limit, and it could not possibly be said that in doing so the violence resorted to by them was excessive, and they were therefore guilty of a lesser degree of homicide.

It is evident that the instructions to the jury upon the offenses embraced in the indictment below the offense of murder would have been abstractions. The cases in which this question has been passed upon in this state, and held adversely to the contention of the plaintiffs in error, are Good v. State, 1 Lea, 293; State v. Hargrove, 13 Lea, 178; Tarvers v. State, 90 Tenn. 485-499, 16 S. W. 1041.

The better practice to be pursued by trial judges undoubtedly is for them to charge upon all offenses embraced in the indictment, because, whenever there is any doubt that the defendant had been prejudiced by such omission, it will be error, for which it will be the duty of this court to reverse the judgment and remand the case for a new trial. It is only in cases where it is...