Henley v. State

• Court: Tennessee Court of Criminal Appeals
• Writing for the Court: OLIVER
• Citation: Henley v. State, 520 S.W.2d 361 (Tenn. Crim. App. 1974)
• Decision Date: 19 November 1974
• Parties: Billy W. HENLEY, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Page 361

520 S.W.2d 361

Billy W. HENLEY, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

Nov. 19, 1974 Certiorari Denied by Supreme Court March 3, 1975.

Lee Asbury, Jacksboro, for plaintiff in error.

David M. Pack, Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, Arzo Carson, Dist. Atty. Gen., Huntsville, for defendant in error.

OPINION

OLIVER, Judge.

Upon an indictment found by the Grand Jury on October 17, 1972 charging the defendant Billy W. Henley with the first degree murder of Carl H. Norton on September 11, 1972, he was brought to trial on April 23, 1973 represented by retained counsel and was convicted of second degree murder and sentenced to the minimum punishment of imprisonment in the penitentiary for 10 years (T.C.A. § 39-2408). Contesting the validity of that conviction, he has brought his case to this Court by an appeal in the nature of a writ of error.

The defendant assails his conviction upon the usual basis of insufficiency of the evidence, insisting that it preponderates against the verdict and in favor of his innocence. And as a part of this insistence he claims that the evidence demonstrated that he was acting in his own necessary self-defense.

We summarize the material evidence. In the early evening of September 11, 1972 a disagreement arose between the defendant and the deceased about a pool game they were playing, on which they had a wager, at a tavern just outside of LaFollette, Tennessee, and the two then separated. The defendant returned to the party he was with the Norton went to the bar to finish his beer. Both men had been drinking but neither was drunk. Then more words were exchanged between the two and the defendant told the deceased to step outside and they would settle the matter. They left the bar, with the defendant leading the way. A few minutes later, when the tavern owner went outside he saw the defendant and the deceased standing beside a small drainage ditch and engaged in conversation, but it did not appear to him that there was any trouble between the two. Shortly after the proprietor went back inside the tavern, he and various patrons heard shots fired in rapid succession. Going outside, they found the defendant and the deceased struggling beside the ditch. The proprietor separated the two men and laid the deceased, who had been shot, down in the ditch. The defendant was standing beside the ditch with his .22 caliber revolver in his hand. The deceased's .38 revolver was found near his hand in the ditch by the ambulance driver, but the evidence was conflicting as to whether he had pulled his gun or the defendant had taken it out of the deceased's pocket and placed it in his hand after shooting him. The next day the sheriff found the defendant's gun where he told him he had hidden it after the shooting. Six gunshot wounds were found on the deceased's body, and at least one of them was fatal. All bullets recovered from his body had been fired by the defendant's gun.

Claiming self-defense, the defendant testified that after he and the deceased went outside the tavern, the deceased pulled a gun on him and kept him at gun point for the entire time they were next to the ditch; that his knees weakened at sight of the gun and he squatted down, and when the deceased said, 'Get up, son of a bitch. I'm going to kill you,' he lunged at the deceased and the latter's gun fired and left a powder burn on the defendant's arm; that he then shot the deceased three times in the stomach, they struggled, the deceased shot him again, and he then shot the deceased twice more in the chest. The deceased was a guard at Petros Penitentiary but the defendant said he never knew him while imprisoned there.

The county sheriff testified that he saw no marks on the defendant's body later that night at the jail, and that the defendant told him he had not been injured or shot and that the deceased had pulled a gun on him and threatened him. When the sheriff recovered the defendant's gun the next day, it had five empty shell cases and one live round. And when he obtained the deceased's gun at the...