Grant v. State
| Decision Date | 08 January 1964 |
| Citation | 213 Tenn. 440,17 McCanless 440,374 S.W.2d 391 |
| Parties | Leo W. GRANT, Jr. v. STATE of Tennessee. 17 McCanless 440, 213 Tenn. 440, 374 S.W.2d 391 |
| Court | Tennessee Supreme Court |
Sidney Davis, Clinton, Hobart F. Atkins, Knoxville, for plaintiff in error.
George F. McCanless, Atty. Gen., Walker T. Tipton, Asst. Atty. Gen., Nashville, for the State.
Leo W. Grant, Jr., a duly licensed attorney of the Anderson County Bar, has been convicted under Section's 23-902(2, 4), T.C.A. for contempt of court for suborning perjury, i. e., for advising, counseling and encouraging others to testify falsely. This is a proper charge for a contempt proceeding. Ricketts v. State, 111 Tenn. 380, 77 S.W. 1076. In this opinion Leo W. Grant, Jr. will be referred to as, 'defendant.'
Woodford Redd, Ronald E. Angel, Herbert Langley and Troy Hess were indicted in Anderson County for illegally possessing, transporting and selling whiskey. Defendant was retained as counsel for these four and the cases were tried in a consolidated proceeding. The State offered proof these four at different times and separately sold whiskey to police officers at a local motel. These four under a plea of not guilty all took the stand and denied the charge of selling whiskey. The jury found all four guilty. A few months later these same four were indicted for perjury and upon the trial under the charge of perjury, each took the stand, and admitted they had perjured themselves in the whiskey trial on the advice of their attorney the defendant in the case at bar. These four were convicted of perjury. As a result four petitions for contempt of court were filed against defendant and the causes consolidated by agreement.
During the course of the trial defendant offered to introduce evidence in regard to a polygraph test he had taken. Upon objection by the State to this evidence the Trial Judge correctly excluded same, but did allow for the record certain questions and answers of defendant in regard to circumstances surrounding the taking of this polygraph test.
The results of a polygraph test are inadmissible in evidence and this would include the circumstances surrounding the taking or not taking of such a test by a defendant. Marable v. State, 203 Tenn. 440, 313 S.W.2d 451. Since this cause was heard by the Trial Judge, without a jury, we will proceed to decide the case, as if this evidence in regard to the polygraph test was not in the record. Bowdon v. Bowdon, 198 Tenn. 143, 278 S.W.2d 670. Assignments of error based upon this matter are overruled.
The Trial Judge at the time of rendering his judgment in the case, and again upon overruling the motion for a new trial, made certain statements, which are the basis of several assignments of error. These statements were not necessary either to the judgment or to the decision in overruling the motion for a new trial. In these statements the Trial Judge commented upon his impression of certain witnesses and how certain evidence affected him. It is our opinion, after a careful examination of these statements, that they reflect the deep seriousness with which the Trial Judge accepted this most difficult task where he is called upon to act as both judge and jury. The judgment entered is a valid judgment under the law and assignments of error based on these statements are overruled.
This brings us to the most serious question raised here on appeal. Defendant insists the evidence preponderates against the judgment. The strongest argument in support of this assignment is in regard to the credibility of the State's witnesses. It is insisted there was so much evidence reflecting adversely upon their credibility they simply could not be believed.
In this case the Trial Judge sat as both judge and jury and his judgment entered established the credibility of the witnesses the same as if a jury had returned a verdict. Further here on appeal the presumption of innocence has disappeared and the presumption of guilt affixed. The burden here then is on defendant to show the preponderance of the proof is against the verdict. In re Adoption of Myers, 196 Tenn. 219, 265 S.W.2d 12; State ex. rel. Anderson v. Daugherty, 137 Tenn. 125, 191 S.W. 974.
We have examined this record under the above rules by which we are bound here on appeal and do not find the evidence preponderates against the judgment. The substance of this matter is, that the four State witnesses testified the defendant advised and counseled...
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