Garrison v. State

• Decision Date: 01 July 1931
• Citation: 40 S.W.2d 1009,163 Tenn. 108
• Parties: GARRISON v. STATE.
• Court: Tennessee Supreme Court

40 S.W.2d 1009

163 Tenn. 108

GARRISON v. STATE.

Supreme Court of Tennessee.

July 1, 1931

Additional Opinion July 18, 1931.

Error to Circuit Court, Obion County; R. A. Elkins, Judge.

Roy Garrison was convicted of murder in the second degree, and he brings error.

Reversed and remanded.

Pierce & Fry and W. M. Miles, all of Union City, and C. C. Grassham of Paducah, Ky., for plaintiff in error.

The Assistant Attorney General, for the State.

CHAMBLISS J.

This appeal is from a conviction of murder in the second degree. The deceased, Sam Boyett, a deputy sheriff, fifty-two years of age, was shot and killed late on an afternoon in July 1930, at Mason Hall, a small village in Obion county, where he lived. The killing grew out of and followed an altercation between the deceased and John Garrison, a man sixty-two years of age, the father of plaintiff in error. Plaintiff in error came on the scene during the altercation between the two older men, the deceased being the younger, heavier, and stronger of the two, heard some words exchanged, and saw one or more blows with the hand passed. Earlier on the same day another son of John Garrison had been arrested at Union City by other officers and taken to the jail at Dyersburg. John Garrison had learned, or suspected, that the deceased had given information which led to the arrest, and it appears that the deceased was approached by the father in a spirit of angry protest or complaint. The evidence indicates that John Garrison slapped the deceased, whose attention was thereupon diverted to plaintiff in error, standing a few steps away with a pistol drawn and presented. He started toward plaintiff in error, and as they came together the pistol was fired, the ball entering the head near the left temple with instantly fatal effect. The facts thus far stated are undisputed. It is also established beyond doubt that plaintiff in error is a man of exceptionally high character a lawyer of excellent standing, of Paducah, Ky., where he has resided for some years, with a wife and young son nine years of age. His father, John Garrison, appears to be a farmer, residing a mile or more from Mason Hall. There is no suggestion that either the father or this son had ever before been involved in any difficulties, or that their reputations for peace and order were other than good.

On the trial, the theory of the defense seems to have been threefold: (1) Self-defense, in that the deceased had drawn and was approaching with an open knife; (2) defense of his father, in that the deceased was threatening to cut him with the knife; and (3) accident, in that the pistol was discharged unintentionally when plaintiff in error was scuffling with and seeking only to strike the deceased with the pistol. Two of these matters of defense are predicated on the claim of the defense, strongly disputed by the state, that the deceased had an open knife. The accident theory rests on another sharply disputed claim, that a tussle took place between the men over the pistol. It is evident that the jury rejected these claims of the defense, and accepted the state's contention that the deceased had no knife except in his pocket, and was shot upon reaching the defendant while approaching him unarmed for the probable purpose of disarming him.

Other issues bearing directly on the question of malice, and largely determinative thereof, were sharply controverted. However, in the view we have felt constrained to take of the action of the trial court in passing on the admissibility of certain evidence, we find it unnecessary to determine here these disputed issues of fact.

The verdict of murder, rather than voluntary manslaughter, may be sustained only on a finding of malice. The theory of the state in support of malice, aside from the rebuttable legal presumption arising from the killing with a deadly weapon, was that plaintiff in error, along with his father, had become aggrieved and enraged at the deceased because of the part which he had taken as an officer in apprehending and bringing about the arrest earlier in the day of the brother, who was at the time escorting the young son of plaintiff in error from the home of John Garrison, near Mason Hall, to his home in Paducah, and that plaintiff in error had followed his father to meet and rebuke, or avenge themselves on, the deceased. We find no direct evidence in the record that plaintiff in error had acquired any information of the deceased's part in this matter. He had been informed of his brother's arrest, and accompanied by his wife had driven over from his home in Paducah to the home of his father for the purpose, being a lawyer, of rendering his brother assistance in making bond, or otherwise. He expected to find his young son at his father's home, and learned when he arrived there that the boy had been started on the bus for Paducah that morning, in company with the brother, who had been intercepted and placed in jail. The record shows that plaintiff in error at once, and naturally, became much interested in the whereabouts of his young son, and attempted by various telephone calls to locate him. He appears to have met his father at the Garrison home and knew of his leaving for Mason Hall. And he and his wife did soon follow his father to that place, where he shortly appeared on the scene of the altercation between his father and the deceased, with the fatal result already described. He had lived as a boy in this neighborhood and was acquainted with the deceased, but there is no evidence whatever in the record of any previous ill will or unfriendly relation or feeling between him and the deceased. We therefore find the preponderance of the evidence clearly against the theory relied on by the state to show malice. This leaves the record without evidence of malice, except such as is shown by the possession, use, and manner of use of the weapon. His explanation of his possession of the pistol, not altogether satisfactory, is that he was carrying it in his car pursuant to a custom on long trips, with night driving, and that he had taken it from the car and placed it on his person when he got out of the car at his father's home, apprehensive that his small boy, who he thought was there, might otherwise find it in the car and toy with it, and that in his excitement over the missing boy, whom he had been unable to locate, he had forgotten to place it again in the car pocket.

Now conceding, but not deciding, that self-defense is not established by a preponderance of the evidence, that is, that the deceased did not carry an open knife when, a larger man, he advanced on plaintiff in error, any substantial evidence in rebuttal of malice became exceedingly material as bearing on the degree of the offense, whether murder or manslaughter.

In this situation the defense sought to prove exclamations taking the form of declarations of intent and motive, made by plaintiff in error on the scene immediately following the act.

J. S. Marsh was an eyewitness of the shooting who testified for the defendant. He was some eighty feet distant. Immediately on the happening he walked towards the spot and met plaintiff in error who was approaching him. Each man had moved some forty feet, or a dozen steps. Before the court, without the jury, he testified, in substance, that, as they met, "Roy asked me if I saw it, and I told him I did. He said, 'I wouldn't have killed Sam Boyett for anything. I struck at him to knock him off. He tried to cut me and got entangled in some way with the pistol and it went off', and I said 'Yes, Roy, I thought you started to hit him', and he says 'did you see the knife?' and I said, 'No, Roy, I didn't see the knife."'

The refusal of the trial judge to permit this to go to the jury is assigned and strongly urged as reversible error. No reason was stated by the court for the exclusion, but counsel assume that it was either because regarded as not a part of the res gestae, or as cumulative. Witness Skinner, for the state, who had walked some fifty feet to the spot after the killing, had testified, in substance, that, "Roy says 'I had to do it. He was trying to cut my father.' I said 'where is the knife?' and we all three looked on the ground for it and in his hands for the knife and we couldn't find any knife. After we couldn't find the knife Roy said 'I didn't intend to kill him, I struck at him and the gun went off."'

The record fails to show definitely which of these witnesses, Marsh or Skinner, first reached and heard the statements of plaintiff in error.

The objection because cumulative is not well taken. It will be borne in mind that the offered testimony tended (1) to support the claim of an accidental killing, and (2) to disprove malice. The statement of Skinner may be equally strong as to the accidental theory, but it does not equally disprove malice. To Marsh only plaintiff in error used the significant words, "I wouldn't have killed Sam Boyett for anything." This was an exclamation of regret inconsistent with malice. When coupled with the unusual showing affirmatively made by numerous witnesses of the highest standing of a character on the part of plaintiff in error wholly inconsistent with malice, it had strong probative value. Moreover, it will be observed that, not only did the Skinner testimony contain no expression of regret showing the mental state of the plaintiff in error as to malice, but it tended to prejudice plaintiff in error, in that Skinner testifies that it was only after they had searched thoroughly for the knife and failed to find it that plaintiff in error said, "I did not intend to kill him, I struck at him and the gun went off." ...