Harris v. State
| Decision Date | 05 January 1966 |
| Citation | 399 S.W.2d 749,217 Tenn. 582,21 McCanless 582 |
| Parties | , 217 Tenn. 582 Emanuel HARRIS v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
Lionel W. Mahoney and Morris Gannon, Jr., Memphis, for plaintiff in error.
George F. McCanless, Atty. Gen., and Thomas E. Fox, Asst. Atty. Gen., Nashville, for the State.
Harris was convicted of involuntary manslaughter and sentenced to serve eleven months and twenty-nine days on the county roads. From this conviction he has seasonably appealed, and, after a full consideration of the briefs and record, we now have the matter for disposition.
The record shows that Harris and deceased had, on March, 29, 1963, been having difficulty with each other. On that date about 7:30 p. m., they engaged in a fight in a cafe in Memphis. The immediate cause of the fight was the deceased's picking up the glass of whiskey of plaintiff in error and drinking it. When the fight was over, the deceased was found lying in a booth with plaintiff in error standing over him. A broken bottle was found at the place of the fight. None of the witnesses saw any blows struck, but plaintiff in error testified that he struck the deceased on the nose with his fist and caused the deceased to fall backward without the deceased striking his head on anything or without rendering the deceased unable to rise.
After the fight was over, the deceased was noticed staggering out of the restaurant, but there was no indication of injury. A policeman picked him up a short time thereafter near the cafe and thought him to be drunk. He was then put in the paddy wagon and taken to jail. When he arrived at jail, it was noticed that the deceased was unconscious and that he had not moved from the place where he was placed in the patrol wagon.
The policeman testified that nothing had happened on the way to the police station to cause injury to the deceased, nor did they notice any injury to him. Because of his condition the jailer would not permit him to be entered at the jail, and deceased was carried to the hospital where he died. After his death an autopsy was made, and the autopsy report was to the effect that the deceased was struck about the temple with a Coca Cola bottle or a hammer causing a skull fracture and injuring deceased's brain, which caused his death.
The record is clear that deceased's death was caused by an injury to him by the plaintiff in error. None of the witnesses, it is true, saw the deceased being hit by the plaintiff in error, but the circumstances certainly exclude any other theory. Plaintiff in error took the stand and admits that he did engage in a fight with deceased but claims that this was merely a skirmish and that he did not hit deceased hard. The evidence shows that deceased was lying in a booth after this fight occurred. It is evident to us, as apparently it was to the jury, that the deceased was struck by some instrument, a Coca Cola bottle or something, or a hammer blow, which caused the injury from which he died. The case is made up entirely of circumstantial evidence except for the fact that they did have a fight, and no one saw the type of instrument which causel the death of deceased. The medical testimony being as it is, there is certainly a very strong circumstance to show that deceased was struck with something more than merely a shove or push in the course of this fight.
The rule has been will established in this State that where circumstantial evidence is relied upon for a conviction the essential facts must be consistent with the hypothesis of guilt, and all other reasonable theories or hypothesis except guilt must be excluded by the facts. Marable v. State, 203 Tenn. 440, 313 S.W.2d 451.
This record does not indicate that Harris was informed when he was picked up and made a statement to the officers that he had a right to counsel before making such statement. He was informed though that any statement he made might be used against him during a trial. There is nothing in the record to indicate that Harris knew, or did not know, of his constitutional right not to give evidence against himself and to have counsel. Article I, Section 9, Constitution of Tennessee. This question is now before us in a number of cases. In all these cases counsel has taken the position that since the Supreme Court of the United States decided Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, that it is required before one makes a statement even upon being arrested, or makes a confession, that he must be advisted that he is entitled to have counsel before making such statement. In other words, the argument is that no statement can be accepted tending to incriminate the person giving it without his being advised before making such statement that he is entitled to counsel. We do not think Escobedo holds this.
The test has long been in this State, as well as it is in most others, whether or not the statement was made freely and voluntarily. Cordell v. State, 207 Tenn. 231, 338 S.W.2d 615. We think that Escobedo has not in any way changed the rule for admission of a confession or statement taken under such circumstances before an indictment and the fellow is brought into court.
It is the rule that the trial judge, when the matter comes on to be heard before him, determines, hearing evidence outside the presence of the jury, whether or not the accused freely and voluntarily waived his right to counsel and to remain silent, and if not having been told this the statements were made freely and voluntarily he has not been fundamentally prejudiced by making such statements, and by his acts alone in giving them he has waived the right to counsel whether he has been informed of these rights by the officers at the time of his...
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