Hughes v. State

• Citation: 148 S.W. 543,126 Tenn. 40
• Parties: HUGHES v. STATE.
• Decision Date: 15 June 1912
• Court: Supreme Court of Tennessee

148 S.W. 543

126 Tenn. 40

HUGHES v. STATE.

Supreme Court of Tennessee.

June 15, 1912

Error to Criminal Court, Shelby County; Jesse Edgington, Judge.

J. J Hughes was convicted of murder in the first degree, and he brings error. Affirmed.

M. R Patterson, Ralph Davis, R. H. Prescott, Bluford Richards, and Brooks Norfleet, for plaintiff in error.

Attorney General Cates and Z. N. Estes, for the State.

NEIL J.

The plaintiff in error was indicted in the criminal court of Shelby county on a charge of having committed murder in the first degree upon the body of one Tommy Dolan, was found guilty of the crime charged, with mitigating circumstances and sentenced to a term of life imprisonment in the state penitentiary. He has appealed to this court, and assigned numerous errors.

The first assignment is that the verdict is not supported by the evidence.

On Friday night, July 7, 1911, plaintiff in error and Tommy Dolan met in the saloon of Albert Mancini, on Madison street, in the city of Memphis. They had had no previous acquaintance. Plaintiff in error was a banker, merchant, and farmer, whose home was in Haynes, Ark.; but his family had been living for a year or two at the Graham Flats in Memphis, and he was over on a visit to them. Tommy Dolan had been, at one time, a jockey, subsequently a barkeeper, and then a stage carpenter. At the time in question, however, he was not engaged in any business; the Orpheum theater, at which he had been employed, having been closed for the summer. These two men drank together, and, being well pleased with each other, decided to go upon a round of visits to the houses of prostitution in the city. Plaintiff in error secured a carriage driven by one Buster Davis, a colored man. Under the direction of Dolan he drove to various houses of the kind referred to, but we need not detail the orgies through which they passed. Suffice it to say that they were out all night, and did not separate until the next morning about 5 o'clock. At that time the hackmen told them that it was not safe to drive around any longer. Thereupon Dolan, who in the meantime had gone to sleep in the carriage, waked up, and, on learning the situation, decided to go home and go to his room and sleep. Plaintiff in error went to Gaston's Hotel to get a shave, and waited until the barber shop was open. While he was being shaved by one of the barbers, the latter, who knew him well, observed that the diamond pin which plaintiff in error was accustomed to wear in his tie was missing, and called his attention to it. This was a pin worth about $400. About 10 o'clock plaintiff in error went to the store of John & Vance Company for the purpose of seeking the assistance of Mr. Vance in the recovery of the diamond. Mr. Vance called in Capt. O'Haver, for some time the chief of police of the city of Memphis, but then the head of a detective agency. Capt. O'Haver says that when he came the plaintiff in error was so much under the influence of drink he could not get any clear statement of facts out of him. Mr. Vance says, also, that he was a good deal intoxicated at that time, but that he understood from him that he had lost his diamond pin, and that he said several times, "Jimmie--diamond--Jimmie--shoot him." Capt. O'Haver, hearing his, surmised that he referred to Jimmie Foppiana, who was a barkeeper at the Mancini saloon. He thereupon went around to the saloon and interviewed Jimmie, and learned from him that plaintiff in error had been out the night before with Tommy Dolan. "Jimmie" told Capt. O'Haver that, if he had been out with Tommy Dolan, the diamond would turn up all right. Before Capt. O'Haver left the neighborhood of the saloon, Tommy Dolan walked up wearing a diamond pin in his tie. Mr. Hottum, who was present, asked him where he got it. He replied that the diamond was not his, but belonged to Mr. Hughes. Capt. O'Haver said that Hughes thought his diamond had been stolen. Tommy replied that it had been stolen, but that he did not steal it. He was then advised by Capt. O'Haver to leave the pin with Hottum, or with Mancini, so that Hughes could get it, as he was a bad man with a gun, and he might hurt him if he found him with the diamond. Dolan replied that if he could get close to him he was not afraid of Hughes hurting him with a pistol.

Dolan was a small man, weighing only about 145 pounds; but he was very strong and very active, and a noted fighter with his fists. He was considered the best man in Memphis physically, for his size and weight. He was 35 years old. Plaintiff in error was 53 years old, and a little shorter than Dolan, and perhaps a little heavier. His left arm was partially paralyzed.

Plaintiff in error testifies that he went out again that night with Dolan, making the round of houses of ill repute, but says that he does not remember very much that happened, because he was under the influence of drink, and thinks that he had been doped. No one else testifies as to his being with Dolan Saturday night. There is a witness who testified to having seen him alone, in a saloon known as the "Hole in the Wall," about 10 o'clock Saturday night, and that he was so annoying to every one present the proprietor had to shut up the saloon to get rid of him, or that he pretended to shut it up, putting out the lights and ordering everybody out. However, after plaintiff in error was safely down the street, the saloon was reopened. Plaintiff in error says that he saw the diamond on Dolan that night, but, not desiring to embarrass him, waited for him to return it. He says that he reached the Cordova Hotel about 7 o'clock Sunday morning on foot. He does not know where he came from, or how he got there, except that he walked. He was given room No. 27. He soon availed himself of the services of some of the employés of the hotel to give him a rub-down with ice water. This was repeated three or four times during the morning, and he finally slept several hours.

About half past 4 Tommy Dolan called on him, wearing the pin in his tie, as before stated. This was Sunday, July 9, 1911. A bell boy of the hotel, William Works, testifies that he carried them ice water several times during the afternoon, and saw no evidence of unfriendliness between them. He states one or two facts that illustrate the situation at that time. He says that plaintiff in error wrote a note to his wife, asking her to meet him at the train that evening. This note was handed by plaintiff in error to Dolan, who read it aloud. We infer that it was handed to Dolan, because plaintiff in error was uncertain of his handwriting after the experiences through which he had been, and wanted to see if the writing could be read. Another fact he states is that plaintiff in error spoke of getting a small check cashed which he wished to use in paying the servants of the hotel that had waited on him. Dolan said there was no need of that--that they (meaning plaintiff in error and himself) would attend to that when they went downstairs. This was assented to by plaintiff in error; at least, he said nothing more in reference to the check. A man who was in an adjoining room testifies that during the afternoon, perhaps half an hour or an hour before the homicide, he heard laughter in the room, and something was said about taking a drink. Plaintiff in error says that he had a bottle of cocktail in his grip, and that Dolan took two or three drinks out of this. Works says that they both had their coats off. This witness also testifies that plaintiff in error ordered dinner for the two, which he brought in on a tray and placed on a table; that when they had finished their meal they ordered up drinks--a lemonade and crème de menthe. The bell boy then left them for the purpose of going to a neighboring restaurant to have an order filled for a meal for a lady in the hotel; the hotel not furnishing meals. He was gone, he says, only about 25 minutes. During that interval the homicide occurred.

Plaintiff in error's account of the matter is that after the meal was over he and Dolan turned to the bow window looking out on Third street; that Dolan was flirting with some girls going by, and finally succeeded in getting two to answer his signal; that he told plaintiff in error he could get these girls to come up to the room; that he (plaintiff in error) replied he did not want them to come, that they looked like they were "church people," and, besides, that it would not be treating the hotel right; and, moreover, they had had an outing, and a good one, and he desired no more for the present. He further testified that he then said, in substance, to Dolan, "give me my diamond, and I will go home, and we can have another outing some other time;" that he had not previously mentioned the diamond to Dolan because he was waiting for the latter to hand the stone to him of his own accord, but Dolan still kept it in his tie, without saying anything about it. Plaintiff in error says that, when he called on Dolan for the diamond in the manner just stated, Dolan replied that he would not give it to him unless he gave him $50 for finding it; that he (plaintiff in error) replied that he would not give him this, because he had incurred that much expense in having Capt. O'Haver trace the diamond to him (Dolan); that Dolan thereupon flew into a rage, said that plaintiff in error could not leave the room alive without paying him $50, and seized plaintiff in error by the collar, and a scuffle ensued between them; that, knowing Dolan was a very much more powerful man than he physically, and that he would have small chance with him in such an encounter, he tried to get his pistol out of his hand satchel, which he says was then on the table, on which rested the dining room service which accompanied the meal; that he (plaint...