Harper v. State

• Decision Date: 06 April 1960
• Parties: , 206 Tenn. 509 Jack HARPER v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 933

334 S.W.2d 933

10 McCanless 509, 206 Tenn. 509

Jack HARPER v. STATE of Tennessee.

Supreme Court of Tennessee.

April 6, 1960.

Robert L. Richardson, Henderson & Henderson, Franklin, for plaintiff in error.

William D. Grugett, Asst. Atty. Gen., for the State.

TOMLINSON, Justice.

Jack Harper's appeal is from a conviction of second-degree murder based on a first-degree murder indictment charging him with having so murdered Bill Simmons. A number of errors are assigned.

Mr. and Mrs. Simmons arrived at the home of defendant for a social visit in the afternoon of the Sunday that Mr. Simmons was shot in the home of Harper. In the forenoon of this Sunday Harper had consumed some whiskey and was asleep at the time the Simmons arrived. Some time after their arrival Simmons and Harper procured a pint of white whiskey. It was consumed in the course of time by Harper and, to some extent, by Simmons and Mrs. Harper, according to the testimony of Harper.

In the shank of the evening Harper caused Mrs. Harper, aided by Mrs. Simmons, to fry some ham which he had sliced and prepare other articles of food for a meal. But Harper declined to eat anything, though more than once urged to do so. He sat with his head face down on the dining room table. According to the testimony of Mrs. Simmons, but denied by Mr. and Mrs. Harper, three times during the course of the meal he arose, doubled his fist and threatened to strike Mrs. Harper. She urged him not to strike her, saying that she had done nothing to provoke him. Immediately after the third alleged menacing threat defendant went from the kitchen into an adjoining unfurnished room in front of the kitchen.

Then Mrs. Simmons suggested to her husband that it was time for them to go home. Mrs. Simmons, carrying their three year old daughter, started from the rear kitchen door to the car parked at the rear of, and close to, the kitchen, while Mr. Simmons started through the opposite door towards the front of the house for the purpose of getting their coats. As Mrs. Simmons was leaving the kitchen, or just after she emerged, she heard Harper in the room in front of the kitchen say 'I've got it, I've got it, do you hear', and cursed. Mrs. Harper's testimony as to this is that she heard the defendant say something in the room into which he had gone, and Mr. Simmons replied 'What you got?'

As Mrs. Simmons was getting in the car she says she heard a shot, and Mrs. Harper began to scream. Then Mr. Simmons came around the corner from the front of the house towards the car, and said 'Oh my God, Jack shot me', meaning Harper. She, with Mrs. Harper accompanying, immediately undertook to hasten Simmons to a hospital. He died before they reached it from the effects of a bullet fired through his forearm practically straight into his stomach from a rifle belonging to defendant. It was fired in the room in which Harper and Simmons had entered from the kitchen a very brief interval before.

Up to this time there had been no unpleasantness of any character, with the exception of (1) the alleged menacing threats made by Harper upon his wife during the course of the aforesaid meal, and (2) the alleged curse uttered by Harper in the room to which he had gone immediately after the alleged third threat.

The sheriff, the deputy and the corner arrived at the Harper home within some forty-five minutes, perhaps, after the shooting. They found Harper asleep on the floor of the room into which he had entered. A rifle was about two feet from, and behind, him. When he was aroused he recognized each of these officers without any apparent difficulty. He first told them that there had been no trouble there. Then he admitted that he had shot a man by the name of Paul Cothran because Cothran's mother had told him, so he said, that Cothran was coming to his home 'and whip me'. He said he didn't know whether he had killed Cothran but 'By God I meant to', because he didn't allow anybody to come to his house and whip him.

After the officers left Harper's home with Harper they learned that the person shot was Bill Simmons. When they so informed Harper, the latter replied that he 'may have shot Bill'; that Bill was going to jump on him and whip him and he didn't allow anybody to come to his house and whip him.

The excellent brief submitted in behalf of Harper mildly suggests that the evidence is not sufficient to support a finding that Harper, rather than Simmons, was in possession of the rifle at the time it was fired. This suggestion is not tenable. After Harper reached the room in front of the kitchen he said, according to Mrs. Simmons, 'I've got it, I've got it, do you hear'. The only reasonable conclusion as to what he had 'got' is that it was this rifle. Within a matter of seconds the rifle was heard to fire, and Mr. Simmons, bleeding profusely, came from around the corner of the house to the car with the statement 'Oh my God, Jack shot me'. That remark was unquestionably a part of the res gestae. On his direct-examination Harper admits in effect that the rifle was in his possession at the time it was fired, but claims it was an accident. He denied on cross-examination remembering anything about the shooting because he was too drunk, he says. This record leaves no doubt but that Harper was in possession of the rifle when it was fired.

Malice is an essential ingredient of murder in the second degree. Harper's brief recognizes that every homicide is presumed to be malicious in the absence of circumstances rebutting this implied presumption. That brief insists that this presumption is completely rebutted here by the fact that from the time Mr. and Mrs. Simmons arrived at the Harpers until the firing of the shot which killed Simmons nothing unpleasant had occurred; hence, that the evidence supports only the conclusion that the homicide was a result of an accident.

Aside from the fact that the State is not required to supply a motive, the statement that all was continuously pleasant is not accurate. Three times, according to subsatantial evidence, during the course of the meal which immediately preceded the shooting, Harper, for no apparent reason, made menacing threats of violence to Mrs. Harper. The third threat was immediately followed by his departure into the room in which the rifle was. His statement almost immediately thereafter that 'I've got it, I've got it * * *', followed by what happened, requires the conclusion that he was looking for that rifle for some purpose. His action almost immediately thereafter in firing the rifle after uttering a curse is substantial evidence that his drunkenness that day had progressed to such an extent that he was nourishing a malice at the time he fired the rifle, or was in a frame of mind generally bent on mischief.

When the officers arrived less than an hour thereafter he had sufficient mental faculties to recognize them. He remembered the details of the meal immediately preceding the shooting. He told the officers that he had shot a man named Cothran and that 'By God I meant to'. Here is further evidence of a malignity of heart at the time of the tragic event, notwithstanding the fact that his drunkenness had progressed to such an extent that he thought, if his statement is to be accepted, that the man to whom that malignity was entertained was Cothran. That is mentioned here because it is evidence that Harper fired the shot maliciously with deadly intent.

And in the same conversation Harper said it may have been Simmons whom he intended to shoot, because Simmons was going to jump on him and whip him, and he didn't allow anybody to come to his house and whip him. There is no evidence or intimation in the evidence that Simmons had ever made any threat or attempt to whip Harper at Harper's home or anywhere else. The fact is inescapable that Harper was quite drunk when he fired the shot. The evidence also justifies a finding that the shot was fired with malicious intent at the man he was facing--Simmons.

But 'the only consideration given to the fact of drunkenness or intoxication at the time of the commission of the crime of murder is to enable the court and jury to determine whether the prisoner may not be guilty of murder in the second degree, rather than of murder in the first degree.' Atkins v. State, 119 Tenn. 458, 480, 105 S.W. 353, 358, 13 L.R.A.,N.S., 1031.

It is emphasized in the Atkins case, supra, that no degree of drunkenness will excuse murder in the second degree when that drunkenness was voluntarily incurred, as here it was, unless continuous drunkenness over a long period of time had caused a hibitual and fixed madness. There is no such claim here. To the contrary, it seems to be conceded, as it should be, that his mental condition was temporary, and caused by the whiskey he had consumed that day.

The thought of Harper that Simmons had threatened to whip, or was attempting to whip, him was solely a creature of Harper's imagination produced by drunkenness. It, therefore, follows that it must be concluded that Harper shot Simmons without the slightest provocation, since drunkenness is not to be considered in determining whether Harper is guilty of murder in the second degree.

If it be assumed that Harper spoke the truth in thinking, while in a highly intoxicated condition, that it was Paul Cothran at whom he was shooting the result is the same. Cothran was admittedly not in Harper's home that day. Harper's act, therefore, had it been Cothran, would likewise have been without provocation since drunkenness is no excuse...