Harris v. State

• Citation: 332 S.W.2d 675,206 Tenn. 276,10 McCanless 276
• Court: Supreme Court of Tennessee
• Decision Date: 05 February 1960
• Parties: Levi HARRIS v. STATE of Tennessee. 10 McCanless 276, 206 Tenn. 276, 332 S.W.2d 675

Page 675

332 S.W.2d 675

Levi HARRIS v. STATE of Tennessee.

10 McCanless 276, 206 Tenn. 276, 332 S.W.2d 675

Supreme Court of Tennessee.

Feb. 5, 1960.

Mary Guidi, Memphis, for plaintiff in error.

Thomas E. Fox, Asst. Atty. Gen., for the State.

S. A. MARABLE, Justice pro tem.

The plaintiff in error, hereinafter referred to as the defendant, was indicted, tried and convicted in the Criminal Court for the offense of assault and battery upon a female over the age of twelve years, with the intent, forcibly and against her will, to have unlawful carnal knowledge of her, and his punishment was fixed at not more than twelve years in the State penitentiary.

From this verdict of the jury and judgment of the court the defendant has appealed and assigned a number of errors, which, for convenience, may be summarized briefly as follows: (1) That there is no evidence to sustain the verdict of the jury, which is contrary to the law and facts in this cause, and the evidence preponderates in favor of the innocence of the defendant and against his guilt; (2) that the trial court erred in overruling the defendant's plea of former jeopardy and former conviction; (3) that the trial court erred in overruling the defendant's motions to quash the warrant issued for defendant's arrest, and the indictment subsequently returned against him, on the ground that said warrant was void, as alleged in Assignments Nos. 3, 4 and 5; and, (4) that the verdict of the jury is void because the sentence imposed by the jury is not authorized by law in that it did not state all of the elements of the offense, and that no legal judgment of the court can be predicated thereon, as alleged in Assignments Nos. 6 and 7.

The following facts appear from the evidence submitted in this case:

One Roxie Logan, a negro woman, eighty-four years of age, lived alone in a small two-room house situated in the back yard of Bernice Redditt's home and about thirty feet therefrom. On November 20, 1957, she had been engaged in some employment away from her home and returned that evening about dusk. After lighting a lamp in her room, eating her evening meal and latching the front door from the inside, she turned the light in the lamp down, but left it still dimly burning, and went to bed with her clothes on, it being a very cold night. There was a small window in this room from which some of the panes of glass were out, and the opening left thereby covered by pieces of paper and tin. An empty oil drum or barrel had been kept in the yard back of her house and about thirty-five or forty feet therefrom, and was apparently in its usual place that evening when Roxie Logan returned to her home.

Later during the night the old negro woman was awakened by a noise, and looking up she saw a man, later identified as the defendant, a negro then eighteen years of age, standing about the middle of the room. According to her testimony, 'he came and fell down on the bed, just like anybody would, just laid down on the bed. He came to the bed and laid across the bed on me, on top of the cover.' She further testified that he made an indecent remark, and put his hand over her mouth when she began screaming, and told her to 'hush hollering' or he would kill her. Her testimony shows that she struggled and fought with him all the while, and did what she could to resist him. During the struggle on the bed the defendant choked her, and put his hand on her bare leg, the bed covering evidently having become disarranged while they were struggling. Both finally slipped from the bed to the floor where the struggle and her outcries continued. She stated that the defendant was on her while on the floor, that he was 'stretched out on me', and that he was on her when the officers arrived pursuant to a call made by Bernice Redditt whose attention had been attracted by the screaming and outcries of the old woman.

During her struggles with the defendant, Roxie Logan was struck and choked by him, had four teeth knocked out, and sustained a cut over one eye which bled profusely staining her own clothing and the clothing of the defendant, all of which evidenced the terrific struggle between the parties.

The officers received Bernice Redditt's telephone call to come to the home of Roxie Logan about 1:22 a. m. November 21, 1957, and they reached her home about fifteen minutes thereafter. The defendant had evidently entered the home sometime about 1:00 a. m., on above date, or shortly before that time. When the officers arrived they found the window in Roxie's room torn out and open, and the oil drum above mentioned standing under the window.

According to Deputy Sheriff J. M. Thomason, one of the two officers responding to Bernice Redditt's call, he flashed a light through the open window, and saw the defendant jump up, start towards the window through which he had entered the room, and then run back to the door in his efforts to escape. He was arrested by the other officer, Deputy Sheriff Carlisle, as he emerged from the doorway of the house. Deputy Thomason testified that shortly after the defendant was arrested he had a conversation with him as follows: 'We asked him what he want in there for, and he said he went in for money; and he said after he got in there, with her in bed, and saw her in bed, he decided to rape her.'

Whether the defendant intended, when he entered Roxie Logan's home that night, to obtain money or commit the offense of burglary, the only reasonable conclusion that can be reached, from the undisputed facts as to what took place in the room thereafter, is that he also had an intent to rape her, formed either before he broke into the house, or after he had gained entrance and saw her on the bed, and that he did attempt to do so. If he had any other intention upon entering the house, that intention was evidently changed when he saw her on the bed, and he then sought to commit the offense for which he was charged and convicted in this case.

The defendant offered no explanation of his presence in Roxie Logan's house that night. In his testimony at the trial, he stated that he became so drunk on the night of November 20, 1957, while at a tavern known as the Bungalow Inn, that he did not know what happened thereafter, that the last thing that he remembered was sitting at a table at the Inn, with some others, where they had been drinking intoxicating liquors, and that he knew nothing after that until he was in the Juvenile Court some time following his arrest. He testified that he did not know whether he went to Roxie's house, except what he had been told, and that he had no knowledge of the event at all because of his intoxication.

To support his contention of intoxication, the defendant offered two witnesses. The first witness, Tommy Williams, a young negro friend, stated that he stopped at the Bungalow Inn that night, 'about midnight', to pick up another friend named Earl, and that he saw the defendant there with his head on a table, and also saw some beer, whiskey and wine on the table; that the defendant didn't act like he was able to hold his head up or know what he was doing. On cross-examination, this witness stated that he didn't know really what kind of condition the defendant was in that night.

The second witness for the defendant, Earl Ellington, a young negro man, testified that he was at the Bungalow Inn on the night in question, about 'twelve o'clock', and saw the defendant there; that the defendant was as drunk as anybody could get, that he couldn't stand up and was 'laying over', but said that he had not been drinking with defendant.

If the defendant had been as drunk as he claimed to be at 12:00 o'clock, on the night of November 20, it is difficult to understand how he could have reached the home of Roxie Logan within the period of one hour or less thereafter, have gotten the oil drum and carried it some thirty-five or forty feet to the window of the house, climbed thereon, and broken open the window in the house to obtain entrance thereto.

Four witnesses for the State, Roxie Logan, Bernice Redditt, Deputy Sheriff Thomason and Deputy Sheriff Carlisle, all of whom were present and saw the defendant at the home of Roxie Logan that night, testified that he was not drunk and that they detected no odor of intoxicants about him. The only testimony to the contrary is that of the defendant, supported only in part by the two witnesses introduced by him, as above stated, who saw him about an hour prior to the happening of the incident at Roxie Logan's home.

The proof in the case, as a whole, is clearly convincing that the defendant was not drunk, or under the influence of intoxicants, when he was at Roxie Logan's home on the early morning of November 21, 1957.

In addition to the foregoing, the State introduced in evidence at the trial a written statement, signed by the defendant, which could hardly be construed otherwise than as an admission of his guilt. In this statement the defendant said:

'I went to Roxie Logan's home about 1:00 A.M., and pulled the paper out of the window, put a iron drum under the window. * * * After I got in she went to screaming, so I hit her and asked her if she had any money, but she just kept on kicking and screaming and I asked her if she would like to have some happiness, * * *'

He then went on to say in the statement that he had been to the Bungalow Inn, that he went to Roxie Logan's house looking for money, that he wasn't going to rape her, that he was drunk, and that he didn't know why he placed his fingers on her person. He further said in the statement, that he put his hand over her mouth, hit her, got blood on his clothes, that it was the first time he had been in that house, that he had been in the house about twenty minutes before the police arrived, and that he had gotten up on the bed on...