Freddo v. State
| Decision Date | 08 March 1913 |
| Citation | 155 S.W. 170 |
| Parties | FREDDO v. STATE. |
| Court | Tennessee Supreme Court |
Ed J. Smith, W. C. Cherry, and W. E. Steger, all of Nashville, for plaintiff in error. W. W. Faw, Asst. Atty. Gen, for the State.
The plaintiff in error, Raymond Freddo, was indicted in the criminal court of Davidson county for the crime of murder in the first degree, alleged to have been committed on the body of James Higginbotham on December 22, 1911, and was found by the jury guilty of murder in the second degree; his punishment being fixed at ten years imprisonment. After the verdict, a motion for a new trial was overruled, and appeal prayed to this court, where errors are assigned.
Two of the assigned errors go to lack of due support of the verdict by the evidence; and it is earnestly and ably urged in behalf of plaintiff in error that the facts adduced did not warrant a verdict of guilty of a crime of degree greater than voluntary manslaughter, if guilt of any crime be shown.
By the preponderance of the proof, we deem the record to establish the facts to be: That in the roundhouse department of the shops of the Nashville & Chattanooga Railway Company, at Nashville, from 50 to 60 men were employed, among them being plaintiff in error, Freddo, and the deceased, Higginbotham. Freddo was at the time about 19 years of age; he had been from the age of 4 years an orphan; he had been reared thereafter in an orphanage, and yet later in the family of a Nashville lady, with result that he had been morally well trained. The proof shows him to have been a quiet, peaceable, high-minded young man of a somewhat retiring disposition. Due, perhaps, to the loss of his mother in his infancy, and to his gratitude to his foster mother, he respected womanhood beyond the average young man, and had a decided antipathy to language of obscene trend or that reflected on womanhood.
Deceased, Higginbotham, was about 6 years older than Freddo, and was one of a coterie of the roundhouse employés, few in number in comparison with the whole, given to the use of obscene language, and to the frequent application to those of the coterie, and at times to others not of their set who would permit of it, of the expression "son of a bitch" — meant to be taken as an expression of good fellowship or of slight depreciation. Deceased, prior to the date of the difficulty, had applied this epithet to plaintiff in error, Freddo, without meaning offense, but was requested by the latter to discontinue it, as it was not appreciated, but resented. It was not discontinued, but repeated, and Freddo so chafed under it that he again warned deceased not to repeat it; and the fact of Freddo's sensitiveness being noted by the mechanic, J. J. Lynch, under whom Freddo served as helper, Lynch sought out deceased in Freddo's behalf and warned him to desist. On Lynch's telling deceased of the offense given to plaintiff in error, and that "he will hurt you some day," deceased replied, "The son of a bitch, he won't do nothing of the kind."
By a strong preponderance of the evidence, deceased is shown to have been habitually foul-mouthed, overbearing, and "nagging and tormenting" in language, and at times in conduct.
On the afternoon of the tragedy, Higginbotham and Freddo were engaged, as parts of a small force of men under Foreman Lynch, in the packing of a locomotive cylinder — putting a pin in the crosshead. Deceased, so engaged, was in a squatting posture, holding a pinch bar. It appears that some one, thought by deceased to have been Freddo, had spilled oil on deceased's tool box, and as he proceeded with his work the latter, in hearing of the crew, remarked: Freddo asked Higginbotham if he meant to call the former a son of a bitch, and was replied to in an angry and harsh tone: "Yes, you are a son of a bitch." The plaintiff in error, standing to the left of and about eight feet away from deceased, seeing deceased preparing to rise or rising from his squatting posture, seized a steel bar, one yard long and one inch thick, lying immediately at hand, and advancing struck deceased a blow on the side of his head, above the left ear, and extending slightly to the front and yet more to the rear of the head, but not shown to have been delivered from the rear. Deceased in rising had not gained an erect posture, but is described as stooping at the time the blow was delivered.
Plaintiff in error testified that deceased, in rising, was apparently coming at him; that deceased made a gesture, and had his hand behind him all the time; that he (Freddo) believed that Higginbotham was going to strike; and that he struck because of anger at the epithet and to defend himself, but would not have struck but for deceased's movement. It appears, however, that deceased had not gained a position where he could strike the accused, and it does not appear that he had anything in his hand with which to attack; and the evidence preponderates against the prisoner on the point of deceased's having his hand behind him.
The character of plaintiff in error for truth and veracity was not attacked, but was affirmatively established.
Higginbotham fell on the pinch bar, from which his body suspended, until he was removed to a hospital, where, shortly he died from the effects of the wound.
It is apparent to the court that the blow was struck by plaintiff in error in sudden anger and passion, aroused by the epithet repeated and emphasized in a tone that made it opprobrious, and the more so in view of the repeated warnings that had preceded. Theretofore plaintiff in error had entertained neither friendship nor hostility towards deceased; and the proof indicates that after the warnings and before the killing the two had been on amicable, but not familiar, terms.
Deceased was taller than plaintiff in error, and of weight 165 pounds, or about 30 pounds in excess of the latter's.
As has been indicated above, we deem the facts sufficient to show that plaintiff in error killed...
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