Hargrove v. State

• Court: Tennessee Supreme Court
• Writing for the Court: TOMLINSON
• Citation: Hargrove v. State, 199 Tenn. 25, 281 S.W.2d 692, 3 McCanless 25 (Tenn. 1955)
• Decision Date: 02 August 1955
• Parties: Robert HARGROVE v. STATE of Tennessee. 3 McCanless 25, 199 Tenn. 25, 281 S.W.2d 692

Page 692

281 S.W.2d 692

Robert HARGROVE v. STATE of Tennessee.

3 McCanless 25, 199 Tenn. 25, 281 S.W.2d 692

Supreme Court of Tennessee.

Aug. 2, 1955.

John M. Lynch, Nashville, for plaintiff in error.

Knox Bigham, Asst. Atty. Gen., for the State.

TOMLINSON, Justice.

Hargrove's appeal is from a conviction of murder in the second degree. The testimony in this closely contested case consists of several hundred pages. In considering the assignments of error based upon that testimony, this appellate court must apply the rule that credibility of witnesses and conflicts in testimony have all been settled by the verdict of the jury. This makes unnecessary and, indeed, inappropriate, a detailed discussion of that evidence, pro and con, Cooper v. State, 123 Tenn. 37, 60-61, 138 S.W. 826, in stating what we conclude the material facts to be as established by that testimony.

Sixteen years prior to this homicide the defendant, then nineteen years of age, secretly married the only daughter of deceased. She was thirteen. The resentment of deceased, who was a harsh man, was deep and long abiding. The first year of their marriage this bride and groom lived apart, she living in the home of her mother and father. It is evident that defendant thinks this was at the insistence of his wife's father, and it was. Her first baby was then born. Thereafter, at the suggestion of the father, and because he thought the care of his daughter's family was too much for her, she and her husband, the defendant, were invited to the home of deceased where they lived for several years. During this time the deceased went to live with his sister, because he wanted no contact with defendant.

This couple and their children then went to their own home procured by the unusual and commendable industry of defendant, and lived continuously thereafter in this, and, then, a second home, until this homicide. During this interval, deceased evidenced paternal solicitation for his daughter and her children. On numerous occasions he carried food in substantial quantities to their home, and on other occasions gave her household articles of value. And in the course of time, his attitude towards defendant became friendly to some extent, at least.

The record makes it quite clear, however, that he, the deceased, was resented by defendant. The defendant says that the deceased 'set up a habit of minding my business, as well as others. In other words, he meddled in all people's affairs' and advised the defendant that he, the deceased, was 'the law'. The defendant said he told his father-in-law that 'before you go to running my home, please go and run your own. * * * I asked him not to come back to my house or intervene--I told him 'don't come out there when I am not there because you are trying to tear up my home'. He says he was told by deceased that 'I'll kil you and get by with it'. Deceased was a lawyer.

On the morning of January 1, 1954, the wife of defendant attended church services, then had lunch down town with her father, with whom on this occasion she visited for probably two hours. This father later saw the defendant that afternoon and told him of this lunch and visit.

When defendant returned home at the end of that day's work there followed a bitter quarrel with his wife. The record does not make at all clear a plausible reason for such quarrel. She started to leave, taking the children with her. Pursuant to his threat to burn the home if she left, he did set fire to a window curtain, and put it out. He followed her into a neighbor's yard where she and some of the children had taken refuge in a neighbor's car. In trying to get to her he broke the glass from the window or the door of the car which she had locked from the inside. After spending an hour or more at this neighbor's home she, with her children, returned home.

On the nest morning after the defendant had gone to work she took their five children, their clothes, and perhaps other articles, to the home of deceased. When defendant returned home that evening and found his family gone, he drove to his father-in-law's home. His wife met him at the front door.

In the ensuing conversation between the two on the front porch, defendant insisted that she and the children go home with him. She as persistently refused, saying that she was afraid of him. During such conversation her father, the deceased, appeared at the door. There was a pistol in his hip pocket. At his direction, his daughter stepped back into the house, and the remainder of the conversation between the three occurred with the screen door closed.

In that conversation deceased told defendant to leave the premises of the deceased and, according to the daughter's testimony, to return the next morning for a discussion with his wife of the differences between them. It was then after 7 P.M. When defendant declined to leave he stated that he would have to call the police, and started to the phone.

The defendant, for a logical reason, had, some weeks before, placed his rifle in the tool compartment of his automobile, where it had remained. When deceased started to the phone the defendant started for his car parked on the street in front of the house. His wife says that as he turned to go to the car he said that he would kill her father if he called the police; and that she, realizing that the rifle was probably in the car, advised her father that her husband had gone to his car for a gun. The father thereupon pulled his pistol from his hip pocket, and had it pointed towards the front door while engaged in the act of putting through the call to the police.

Defendant, having procured his rifle, 22 calibre, from the car, returned with it towards the house. In seconds thereafter, and while the deceased was still at the phone, this rifle, in the hands of defendant, was fired through a window at the side of the house into the body of deceased, killing him instantly.

Immediately thereafter defendant went to the rear of the house where he says that he was ordered by his wife from an upstairs window to go home. She says that he aimed the gun at her. However that may be, the sirens of the approaching police cars became audible, and he went home, and from there to the police station for surrender.

He made no inquiry before leaving as to the effect of the shot which he knew had come from his rifle. When cross-examined as to why he went from the side window to the back he said it was only because he 'just wanted to see where my children were'. And when cross-examined as to whether deceased was 'doing a single, solitary thing to you when you took his life' he replied that 'he took my children away, and--he had a gun with which to kill me'. The deceased held his pistol in his hand when the police found his dead body there by the phone.

The defendant's insistence is that the shooting was an accident. His version of the affair is when he saw a gun in the hand of the deceased, who had threatened to kill him, he ran to his automobile for his own safety, but dared not drive off because the street lights fully lighted that space for some distance. Hence, having procured his rifle for his own protection, he returned towards the house and ran to its side to the end that he might be hid by darkness. Then it was, he says, that he stumbled over a bush, rock or rough place in the yard, and the barrel of his rifle struck, and broke through, the glass of the window and, in some way, there was fired the shot which killed deceased.

An autopsy was performed by Dr. Core at the instance of the District Attorney General's office. The testimony of Dr. Core is that deceased received two wounds, one entering the rear of his shoulder; the other the base of his skull. The bullet inflicting the shoulder would was not found, but traces of its lead were disclosed by the x-ray. In as much as it was not a serious wound the doctor did not pursue his search for the bullet. The bullet entering the base of the skull was disclosed by the x-ray.

Defendant says that only one shot was fired. The excited wife of the deceased heard only one. Defendant's wife says she heard two, one almost immediately after the other, and that it was after the firing of the second shot that her father's body slumped against her. She then ran up-stairs to see about her children, and saw the defendant in the back yard.

Defendant's rifle was a single-action bolt rifle. It required reloading by hand after each shot by first pulling the bolt back, thereby ejecting the fired shell, then slipping a cartridge in the barrel. Such action, in its very nature, would cause the barrel of the gun to be lifted or lowered during reloading.

There is a hole much larger than a bullet of a 22 rifle in the window glass which was likewise cracked by the blow received. At the top and bottom of that hole, respectively, there is a small hole which the State says was caused by separate bullets. The defendant says that the little hole at the top must have been caused by the sight of the rifle as its barrel fell against and through the window-pane while the defendant was stumbling in the dark sideyard.

The material facts being as thus stated, perhaps the first alleged error which should be considered is this:--According to the...