Holt v. State

• Decision Date: 04 April 1936
• Parties: HOLT et al. v. STATE.
• Court: Tennessee Supreme Court

Page 397

92 S.W.2d 397

HOLT et al. v. STATE.

Supreme Court of Tennessee.

April 4, 1936.

Error to Circuit Court, Cannon County; T. L. Coleman, Judge.

Elvin Holt and Hoyte Holt were convicted of voluntary manslaughter, and they bring error.

Reversed and remanded.

Cummings & Melton, of Woodbury, for plaintiffs in error.

C. C. Warden and Ewell & Ewell, all of Manchester, and W. F. Barry, Jr., Asst. Atty. Gen., for the State.

CHAMBLISS, Justice.

Plaintiffs in error appeal from a conviction of voluntary manslaughter, with a prison sentence of two years, in the killing of Jess Anderson by stabbing with a pocketknife. The Holts are cousins, young men of 23 and 24 years, respectively. Elvin Holt says that it was he who used the knife, and there is no doubt on the record that this is so; and we find no evidence that Hoyte Holt was armed at all, or engaged in the fight, although he was present. The only apparent theory upon which his conviction could be rested is that the knife used was his and that, shortly before, he handed it to Elvin, at his request, to be used for their protection from a threatened assault by the deceased. The killing took place in the public road near a country church which the young men were all leaving, after a night service there. The Holts lived in that neighborhood. The deceased and two companions, one a brother, Ode Anderson, 18 years old, and the other, Edgar Lewis, a boy of 16, lived in Coffee county, some five miles distant. They road over horseback and hitched their horses some mile or so away, and then went to the church grounds. It does not appear that they entered the building, or came in contact with the Holts until after the service. There is no evidence of any former differences between the young men and, indeed, their acquaintance had been slight.

Jess Anderson and his companions had been drinking when they reached the church grounds, and we think it clear that his intoxication was the cause of the trouble. This induced in him a fighting mood and led him to pick a quarrel with the Holts. He brought with him on the trip a razor and, missing it, appears to have conceived the idea that one of the Holt boys, whom he met as they were all leaving the church grounds, had his razor. When accused by him they offered to be and were searched. It developed that Ode had had the razor and that it had fallen from his pocket on the ground and had been picked up by Edgar Lewis. The deceased and his two companions proceeded along the road, in a direction opposite from the place where they had left their horses, following the Holts as they proceeded homeward. According to plaintiffs in error and Frank, a younger brother of Elvin, fourteen years old, Jess was proposing to fight them and threatening serious violence to them. We think this is the clear weight of the evidence. It was as the party thus worked their way down the road, the Holts declining to fight, that Elvin asked Hoyte for his knife, saying, as they testify, that he apprehended a deadly assault by the deceased, who was a man of about 35 years of age. The Holts say that the deceased finally ran around in front of Elvin Holt, as he was rapidly going down the road, and struck him with something in his hand, when he struck back with the knife; that just then Ode Anderson struck him in the back and cut him; that he then turned on and cut Ode slightly with the knife.

The account given by Edgar Lewis, introduced by the state, differs only in detail from that stated above, with this exception, that he says that as the crowd left the church the Holt boys invited the party into a "cedar lot" near the road and set up the drinks — liquor in a fruit jar. In this he is corroborated by Ode Anderson, brother of the deceased. The Holts all deny this. However, whoever supplied the liquor at this time, there is no dispute that the deceased had more than his proper share and behaved accordingly. This witness Lewis makes no denial of this and says that following the "search" for the razor (which he says he had taken), the deceased threw aside his hat and vest and proposed to engage the Holts in combat; that when the Holts declined he followed them up the road. His testimony reads: "Pretty soon Jess Anderson came back to the fence and said that the Holts boys wanted to fight Ode Anderson, and Hoyte Holt then said that they did not want to fight Ode, that Ode was drunk. I then told the boys not to have any trouble. Ode Anderson and I got over the fence and into the big road. Jess pulled off his coat and hat and said he would fight him fair. The boys then went up the road except me, and the Holt boys were in front and Jess followed next to them, and Ode behind. I heard a lick and a grunt and Jess fell. Elvin Holt stabbed Jess."

It will be observed that this witness does not undertake to say who passed the first blow. His description is exceedingly meager. But Jess Lewis, a second cousin of Edgar, testified that he had a conversation with Edgar shortly after the affray, and that Edgar then said to him that "Jess Anderson struck the first lick" and that he did not know whether Anderson had anything in his hand or not. Floyd Lewis, who is an uncle of Ed, testifies that Ed Lewis told him after the difficulty that Jess and Ode followed the Holt boys up the road and that he (Ed) could not say how it occurred, but that after Jess fell he threw a flashlight on the body and ground and saw a knife lying on the ground six inches from Jess' hand. Other witnesses testified to having seen this knife, but there was testimony offered by the state that Jess did not own such a knife, and the state's theory apparently was that the knife had been "planted."

As further illustrating the partial intoxication and the offensive and belligerent effect thereof on Jess Anderson, Ace Arnold testified that he saw Jess Anderson on the church grounds while the preaching was going on and that he walked up to him and said, "What will you give me to whip you?" To which he replied, "I would give $1.00." That Jess said, "I could shoot you", and pulled a razor and said "that could cut a man's head off." "He laughed and put it up. I thought he had a drink or two." Also, El Fleming testified that he saw Jess on this occasion and that he was drunk, and that he told Jess that he had better be careful, or the officers would get him, and Jess then snatched a knife out of Clarence Prater's hand (a bystander), when Prater stepped in between them. The witness said that he had known Jess only slightly. There was an attempt to impeach this witness on cross-examination by asking him if he had not stated in the presence of the Attorney General some time before that he knew nothing about this lawsuit, to which he replied that he recalled having some conversation, but that he did not want to get mixed up in the matter; that he had said that he "did not see the Holt boys that night." Of course, this was not inconsistent with the testimony which he gave. He did not undertake to testify at all as to the difficulty.

As before stated, there is no suggestion in the record of any previous ill will between the parties, and no reason whatever suggests itself as to why the Holts should have assaulted the deceased, except in self-defense, as testified by them, unless the testimony of one Carmack Knox furnished a clue to a motive. This witness testified that he had a conversation with Elvin Holt that night after church, in which Holt said to him, "A bunch of us boys want to run the Fudge Around boys off," to which he said he replied that he would not have anything to do with it. On cross-examination it developed that this witness was angry with the Holt boys because of a claim he was making that they had cut his horse's tail off shortly before. It developed that he had refused to communicate to counsel for the defense his proposed testimony, so that they were taken unawares. In this connection it appears that affidavits were presented from apparently unimpeached witnesses on the motion for a new trial, one by the father-in-law of this young man, showing that young Knox was asked about a rumor that he would testify as he did, and that Knox at that time stated that he would say nothing of the kind, and that he had never heard of such a thing; that is, that Elvin Holt had said anything to him about running the Fudge Around boys off.

We are not disposed to give credence to this testimony of Knox. Not only is his testimony weakened, if not destroyed, by his admitted ill feeling toward the defendants and the affidavits introduced on the motion for a new trial, but this theory is utterly at variance with all of the testimony as to what occurred. There is absolutely no suggestion on the part of any of the witnesses to the occurrence that the Holt boys in any way provoked the difficulty.

In our view the only debatable question on the practically undisputed record is as to whether or not Elvin Holt was justified in using a knife in repelling the assault made on him by this partially intoxicated man, it not being clearly established that in making the assault on the Holts the deceased was using a deadly weapon. It will be remembered that it was after dark, and the practically undisputed proof is that the Holts were seeking to avoid a difficulty with the deceased, and leaving the scene as rapidly as they well could, and were pursued with threatening language by the deceased up to the point where the licks were interchanged.

In this situation the degree and reasonableness of the apprehension which the defendant Elvin Holt entertained of death or great bodily harm becomes important. It will be remembered that the deceased had been in possession of a razor, and it is not clear that the defendant knew that he had not regained possession of it. Also the proof shows that the deceased was a large and muscular man and that he had made violent threats against the Holt boys as he followed them down the road. Also a number of...