Green v. State

• Decision Date: 13 July 1926
• Citation: 285 S.W. 554,154 Tenn. 26
• Parties: GREEN v. STATE.
• Court: Tennessee Supreme Court

285 S.W. 554

154 Tenn. 26

GREEN v. STATE.

Supreme Court of Tennessee.

July 13, 1926

Error to Circuit Court, Lauderdale County; R. B. Baptist, Judge.

Jesse Green was convicted of murder, and he brings error. Reversed and remanded.

Craig & Durham, of Ripley, for plaintiff in error.

Ferriss C. Bailey, Asst. Atty. Gen., for the State.

KINNEY Special Judge.

The plaintiff in error, Jesse Green, was convicted in the circuit court of Lauderdale county of the murder of one Andrew Buttram. Green and Dick Dowdy were jointly indicted for murder in the first degree of said Buttram, but on the trial of the cause Dowdy was acquitted, and Green found guilty of murder in the second degree, and his punishment fixed at 20 years in the state penitentiary.

A motion for a new trial was duly made and overruled, and the defendant Green prayed and perfected this appeal.

Buttram was shot and killed near midnight at the home of Lee Butler near the confluence of the Obion and Mississippi rivers where he and defendant Green, Dowdy, and others had attended a dance. The dance had passed off without trouble of any kind, and the deceased had entered his automobile with his wife and others preparatory to returning home, when, for some reason, he got out and went back of the house next to the Obion river, where defendant Green, Dowdy, and Cheek, and Lee Butler were. Green, Dowdy, and Cheek were waiting there for the return of one of their party from a store nearby, to get in a motor boat to return up the Obion river to their homes. It was at this point the trouble and shooting began. There is a serious conflict in the evidence as to how and why it began. The state contends that it grew out of a wrestle between Buttram and Dowdy, that Green and Buttram wrestled first, at the request of Buttram, and that Buttram threw Green, and then that Dowdy and Buttram wrestled twice Buttram throwing Dowdy each time, and that they got up after the last fall and shook hands, and that Dowdy stepped back and began shooting.

The defendant contends that Buttram had hostile feelings towards him, and that Buttram, when he came where he and the others were sitting, as above stated, jumped on him without notice or warning, and that, when he finally got loose from Buttram Buttram stepped back a few steps, ran his hand inside the breast of his overalls and said, "I am going to kill every damn son of a bitch one of you," and that defendant claims that knowing that Buttram carried a pistol in his bosom, he drew his pistol and began shooting, that Dowdy did not shoot at all, and that no wrestling at all was done.

The state also contends that Buttram turned and ran under or around the house towards his automobile after the first few shots were fired by Dowdy, and that then Green pursued and shot at Buttram as he ran and until he fell and then shot him several times after he fell.

The contention of the defense is that Green did the first shooting, and shot four or five times, exhausting all the cartridges in his pistol, and that he neither pursued nor shot any more, and that it was Lee Butler, at whose house and by whom the dance was given, who shot at deceased as he ran towards his automobile; that Lee Butler had hostile feelings towards deceased, because deceased attended his dances and sold liquor in competition with him. There was evidence tending to show that Lee Butler was at or near the end of the house around or under which deceased ran, and one witness testified positively that he saw Lee Butler shoot at deceased three or four times as he ran. There is also evidence tending to show that Lee Butler had a lantern in his hand, and that after the deceased fell he broke this lantern in pieces against a tree, which was about 12 or 14 feet from where deceased fell and about 20 feet from where pistol cartridges were found on that side of the house where deceased fell. It was also shown that Lee Butler was very much frightened on the night the defendants were arrested and put in jail, and that he requested that he be locked up in jail for the night, which was done. He disappeared a few days after the killing, and his habitation is unknown.

These are the contentions of the state and of the defense, and each is supported by some evidence.

The home of Lee Butler was an old boat, placed upon posts or pillars high enough from the ground for a man to walk under it. At this point the Obion river runs in a westerly direction and the Mississippi river in a southerly drection. The house faced the Mississippi river with the side of the house or the long way next to the Obion river and about 12 or 14 feet from that river. Between the house and the river, the bank was sloping and was a landing place for boats. The house, including the back porch, was about 54 feet long. The shooting began on the north side of the house and between it and the Obion river. Deceased ran and fell on the south side of the house. Lee Butler had occupied this house for about 2 years. He had been giving dances on Saturday nights, and the evidence tends to show that he had no visible means of support.

The defendant Green was an assistant or employee of Robert Whitwell, a prohibition enforcement officer. They had made several whisky raids. When property had been taken it was left in the custody and care of Green. The pistol which Green had and shot at deceased had been given to him by Whitwell to use in guarding and protecting property taken in whisky raids. There was evidence tending to show that one raid had been made in the neighborhood of where deceased resided; that deceased had threatened that if they raided him he would kill both of them, that if defendant came for his outfit he would leave him in the woods. There was evidence tending to show also that all the shots entered from the front of deceased.

It is not necessary that we should review all the testimony in this case, in view of the conclusions we have reached, and we express no opinion on the facts further than we deem necessary on ruling on the assignments of errors hereinbelow disposed of.

It is also unnecessary that we pass upon all the assignments of errors. Those we consider most important are as follows:

XIV.

The fourteenth assignment of error is as follows:

"The court erred in excluding the testimony of defendant Green, defendant Dowdy, and witness Cheek, to the effect that Lee Butler entertained hostile feelings against the deceased Buttram because of their disagreement over their illicit sale of liquor there on the premises of said Lee Butler, and in overruling defendant's thirteenth ground of his motion for a new trial to that effect."

The bill of exceptions as to this testimony is as follows:

"Q. Do you know what the feelings between Lee Butler and Andrew Buttram was; where that was good or bad?

A. Not for sure, I don't.

Q. Well, do you know anything Andrew Buttram or Lee Butler either told you?

A. He (Lee Butler) told me he didn't like him on account of--

Mr. Steele (interrupting): We object to it.

Mr. Craig: Don't state that.

Mr. Steele: What Lee Butler told him (Green) wouldn't be competent at all.

The Court: No; certainly not. That is excluded to which defendant excepted.

The witness answered out of the hearing of the jury that Lee Butler expressed hostile feelings against Buttram because Buttram had brought his liquor up to Butler's dance hall to sell in competition with Butler. This same testimony was offered by the witness Dowdy and witness Cheek and excluded by the court, to which defendants excepted."

The defendant also prepared a special charge and requested the court to charge same as to this matter, which the court refused to do, and this is also assigned as an error. That part of the special request covering this phase of the case is as follows:

"The defendant has introduced proof tending to show that there was bad feeling between the deceased, Buttram, and one Lee Butler, and that Lee Butler was the one who followed him around the house shooting at him. The defendant insists that Lee Butler was influenced by causes producing a motive for him to shoot Buttram, and that he did have such motive, and that he did do the shooting after the deceased ran. If you find these to be the facts, or have a reasonable doubt as to whether it occurred that way, you should not convict the defendant Green."

In the case of Sawyers v. State, 15 Lea, 695, the court held, viz:

"It is a rule of law that the guilt of the accused must be made out to the exclusion of every other reasonable hypothesis. If there is proof in the possession of the accused tending to show that another had the motive, or was in condition to be acted upon by causes which might produce the motive to commit the offense, such facts may be shown as items of proof tending to establish a motive in the breast of such other person, and to that extent prove the existence of an hypothesis inconsistent with the guilt of the prisoner, the value of such evidence to be determined by the jury, who should give to it any such weight as its surroundings may justify."

Green Dowdy, and Lonnie Cheek claimed to be in a position where they could see and hear what was done and was said when the shooting was done. They testified that Green did not shoot after Buttram turned and ran; that there were other shots fired after Buttram ran and towards the rear end of the house towards which he ran; that Lee Butler was at or near the end of the house. There was also evidence tending to show that two and different pistols were fired. Dowdy testified that he saw Lee Butler shoot at deceased three or four times. Lee Butler had a lantern, and for some reason he broke it to pieces on the side of a tree and on the south side of the house after Buttram fell, showing that he was on...