Henley v. State

• Decision Date: 11 September 1972
• Citation: Henley v. State, 489 S.W.2d 53 (Tenn. Crim. App. 1972)
• Parties: Bobby HENLEY, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 53

489 S.W.2d 53

Bobby HENLEY, Plaintiff in Error, v.STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

Sept. 11, 1972 Certiorari Denied by Supreme Court Dec. 4, 1972.

Donald Arkovitz, Nashville, for plaintiff in error.

David M. Pack, Atty. Gen., W. Henry Haile, Asst. Atty. Gen., Robert H. Schwartz, Asst. Dist. Atty. Gen., Nashville, for defendant in error.

OPINION

OLIVER, Judge.

Convicted in the Criminal Court of Davidson County of incest with his 15-year-old daughter and sentenced to imprisonment in the State Penitentiary for five years, the minimum provided by the statute proscribing that offense (TCA § 39--705), the defendantBobby Henley is now before this Court upon appeal in the nature of a writ of error duly perfected.

Essentially, the defendant's Assignments of Error challenge the sufficiency of the evidence to warrant and sustain the verdict of the jury, his position being that his daughter Barbara, whom the indictment charges him with violating, was an accomplice as a matter of law and that there is no competent evidence in the record to corroborate her testimony.

The essence of the offense of incest is marriage or sexual intercourse with a relative within the prohibited degree of consanguinity.Murray v. State, 214 Tenn. 51, 377 S.W.2d 918.

Admitting that there is 'little or no' evidence in this record to corroborate Barbara's testimony, the State submits the case without recommendation.We summarize the material evidence.Barbara testified her father had forced her to have sexual relations with him approximately once a week for the last three years prior to December 5, 1970; that she told her sisters(Theresa and Dorothy Enola) and step-mother about this, but her step-mother only said that she'couldn't do nothing with him'; that the defendant beat and whipped her into submission and she did not report the matter otherwise because she was afraid of him; that on December 5, 1970, while her grandfather and step-mother and brothers and sisters were in the front room of their home, the defendant told her to go to her bedroom and followed her there and told her to remove her clothes and beat her with his fists and removed her clothing when she resisted and then proceeded to have intercourse with her, and notwithstanding her screams ('Not too loud') no one came to her aid; that after this last incident she discussed the matter with her sisters and Theresa advised her to report it to someone at the school she attended; and that on December 7th she related the incident to the assistant high school principal and later talked to a male and a female officer of the Metropolitan Pollice Department who interviewed her at the school; that she had seen her father having sexual relations with her sister Dorothy; she admitted to having been to juvenile court because of truancy and running away from home and related an incident when her father found her wrapped in a blanket in the apartment of her boy friend Tommy, but denied she was undressed at the time and denied having intercourse with Tommy; she admitted that at the time of this latter occurrence her father was looking for her because she had stayed out of school, and that when he found her, he slapped her and took her home and forced her to eat in the kitchen while the other members of the family ate in the dining room, and that he called her names; and that it was shortly after he found her wrapped in a blanket in the apartment that she and Theresa and their other sister talked about their father's misconduct and she then went to the high school and made her disclosures to the assistant principal; she admitted to intercourse with only one boy, and said that this was after the December 5th incident with her father.After the defendant was arrested and placed in jail Barbara wrote him a letter (admitted in evidence) in which she said, among other things:

'Dad I know you hate in that place but they will not think I was tell the truth if I tole them that it was a lie.Because if I tell them what Enola and Teresa say they will make me to a lie test and I will be telling and lie and they will send me far away and I do not want to be sent far away the kids and you and mom.

'Dad Mother think that I do not like her.Because I do not write her but that is not so.Because I do not know where to send the letter to her.She writes Enol and Jo once a week sometime but she doesn't write me.Why is that?I think that she doesn't love me and so what am I going to do about it.Dad I know you love me and you think that I do not love you.'

Confronted with this letter she testified she wrote to her father because he had written to her, and that she loved him, but maintained she was telling the truth.She refused to testify who told her that she would be taken away.

The assistant principal and the two officers testified what Barbara related to them.

Theresa testified that she did not hear Barbara scream on the date of the alleged offense; that Barbara had not told her about their father forcing her to have sexual relations, but admitted that she had been having sexual relations with him herself since she was 12 years old; that the incest incident alleged was a scheme devised by her and Barbara and their other sister in order to get rid of their stepmother whom they disliked, but admitted she did not know how the scheme would have that effect because 'it was all mixed up, and it was planned so quickly'; she denied engaging in sex parties but admitted having five or six boys in the home in the absence of her father and having sexual relations with them while her sisters maintained a lookout for their father, and he spanked her when he discovered what was going on.

The defendant denied whipping his daughters, testifying that he had not done so since they were small children, that Barbara gave him difficulty and ran away from home frequently and refused to go to school; that he found her on one occasion undressed in her boy friend's apartment; that upon returning home from work he had found his daughters having sex parties with 15 to 20 boys.He denied that he had ever had intercourse with any of his daughters, and testified that they had threatened to make these charges against him so that he would be sent back to...