Jenkins v. State
| Decision Date | 03 January 1974 |
| Citation | 509 S.W.2d 240 |
| Parties | Robert Lee JENKINS and Harvey E. Jenkins, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. |
| Court | Tennessee Court of Criminal Appeals |
Hal H. Carr, Blountville, Thomas McKinney, Jr., Kingsport, for plaintiff in error.
David M. Pack, Atty. Gen. Phillip W. Brooks, Asst. Atty. Gen., Nashville, Carl K. Kirpatrick, Dist. Atty. Gen., Kingsport, for defendant in error.
Following the killing of Newman Christian on November 28, 1971, Robert Lee Jenkins was indicted for first degree murder, and in a separate indictment Harvey E. Jenkins was charged with aiding and abetting Robert Lee Jenkins in the murder of Christian. Jointly tried in the Criminal Court of Sullivan County, Robert Lee Jenkins was convicted of second degree murder and sentenced to imprisonment in the penitentiary for not less than 10 nor more than 20 years, and Hervey E. Jenkins was convicted of aiding and abetting murder in the second degree and sentenced to 10 years in the penitentiary. Each has duly perfected an appeal in the nature of a writ of error to this Court.
By appropriate Assignments of Error, both defendants raise the usual challenge to the sufficiency of the evidence to warrant and support the verdicts of the jury. We summarize the material evidence.
On the night of November 27, 1971, Roy Morelock and two other men went to a bootlegging establishment where the defendant Robert Lee Jenkins, who was in charge, and Hugh Laughlin (or Lawson) were involved in an argument over Jenkins' refusal to sell Laughlin beer. When Morelock offered to buy the beer for Laughlin (with the latter's money), Jenkins took exception and pulled a gun on Morelock and told him to leave, grabbed him by the collar and jerked him across a half door and struck him on the head.
About noon the following day, which was Sunday, after driving Newman Christian's father to Bristol, Morelock and Christian decided to go to Gallatin, Tennessee. After stopping to buy 12 bottles of beer and a box of .38 caliber cartridges for Christian's revolver, they decided to go to the same bootlegging establishment to buy some liquor because they did not want to try to buy any in a strange town on Sunday, and Morelock did not think Robert Lee Jenkins would be there since he had worked the night before. Enroute to that establishment, Morelock and Christian each drank a beer.
Robert Lee Jenkins was in the establishment when Morelock and Christian arrived. Morelock said to him, 'I don't appreciate you busting my head like that.' At that time or shortly before, Christian returned to the car. Harvey E. Jenkins came from another room with a shotgun and ordered Morelock to leave, and Robert Lee Jenkins pulled a .38 caliber revolver and told Morelock it was 'about time to go.' Morelock said, 'No trouble' and went outside and started to his car. When he was two or three steps beyond the porch, about half way to his car, he heard one of the defendants say, 'Why don't we just kill that son of a bitch going there?' He then heard a gun fire and a rattling sound 'like you throw a handful of gravels at something.' Later investigation showed that a large number of shotgun pellets struck the left side of Morelock's car near the bottom. Turning around, Morelock saw both of the defendants, Harvey E. Jenkins with a shotgun and Robert Lee Jenkins pointing a revolver at him. Christain was standing on the other side of Morelock's car. Morelock described it: 'Well one arm was laying sort of like on top of this car, right here, and the other one, you know, was sort of hung over, like this way, just raised up out of the car.' As Morelock started to run, another shot was fired. Blood appeared instantly on Christian's face, he stood for a second and then collapsed. It was stipulated that he died from a .38 caliber gunshot wound in the head. Morelock testified that Christian did not have a gun in his hand when he was shot. The police found the deceased's gun 18 inches from his hand, fully loaded.
In Morelock's car the officers found one empty beer can and one empty beer bottle, and a box of .38 caliber cartridges with 13 missing. Morelock testified that some of the cartridges fell down into the rotting carpet of his car, and that enroute to the bootlegging establishment he and the deceased fired a couple of shots each into the floorboard of his car. A police officer testified that Morelock and Harvey E. Jenkins appeared to have been drinking.
The defendant Robert Lee Jenkins testified that on the night of November 27, 1971 he declined to sell any beer to Morelock and another man who came to the house and told them to leave; that Morelock began arguing and 'he reached in there to unbolt my door, and when he did, I hit him in the head with a pistol'; that Morelock got into his car and 'hollered that he'd be back'; that the next afternoon, Sunday, Morelock and Christian came in and asked for two cans of beer, which he refused to sell them; that Morelock said, ; that he replied to Morelock, ; that Christian then left, taking a gun from his pocket, and Morelock said 'My name's Roy Morelock' and that he replied, ; that Morelock then went outside, and turned around after going down the steps and said, 'Wait a minute, let's get this straight now'; that he stepped out on the porch and 'I told him, I said 'Go on,' and I looked up and I was looking right in the barrel of Tiny Christian's pistol, aimed at me over the top of the car'; that 'I just up and fired and fell on the porch,' and Morelock ran and Christian disappeared behind the car; that he fired only once because 'That man was going to kill me' that after he fired his brother (Harvey E. Jenkins) came outside; and that he did not have anything to drink that night. On cross-examination, both by Harvey E. Jenkins' counsel and the District Attorney General, he testified that he had already shot the deceased before Harvey came out on the porch with a shotgun and fired into the side of Morelock's car, and at that time Morelock was somewhere down at the side of the house, and he didn't know what Harvey was shooting at.
The defendant Harvey E. Jenkins testified he had been staying at his brother's (Robert Jenkins) house a few days; that around 1:00 a.m. the night of November 27, 1971 a man who gave his name as Lawson (as Harvey understood it) began kicking on the door; that his brother Robert Jenkins opened the top half of this Dutch door and told Lawson he could have used the door buzzer; that Lawson said he wanted some beer and wanted to come inside; that, because it was after hours for beer sales, Robert told Lawson he could not come in; that a short time later Lawson and Morelock returned and kicked on the door and Morelock asked Robert Jenkins why he was giving his friend a rough time; that Morelock, Lawson and Robert Jenkins began arguing, and as Morelock reached over the closed bottom half of the door, Robert Jenkins hit him in the head with a pistol; that as they left, Morelock said he would be back; that the next afternoon Morelock and the deceased came to the house; that from where he was sitting in a back room, he could see a pistol in the deceased's pocket; that Morelock, the deceased and Robert Jenkins argued; that he got the shotgun from under the mattress in a bedroom, and when he returned the deceased and Morelock and Robert had gone outside; that he then heard a shot and saw Robert go down, and when he got outside he saw Robert getting up, and saw no one else except Morelock walking pretty fast down along the side of the building; 'Well, when I see that, well, there's nothing to shoot at,' and that he did not intend to shoot at Morelock or anyone else 'unless they'd been shooting towards me, or been aiming at me or my brother,' and the shotgun was accidentally discharged as he undertook to uncock it.
Tested by the time-honored and oft-repeated rules governing appellate review of evidence in criminal cases when, as here, its legal sufficiency is challenged on appeal, to which we must adhere, Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768; Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799; Chadwick v. State, 1 Tenn.Cr.App. 72, 429 S.W.2d 135, in our judgment the material evidence in this case unquestionably justified the jury in finding the defendant Robert Lee Jenkins guilty of second degree murder and amply supports that verdict, and also supports the verdict finding Harvey E. Jenkins guilty of aiding and abetting that homicide.
TCA § 39--109 defines aiders and abettors:
'All persons present, aiding and abetting, or ready and consenting to aid and abet, in any criminal offense, shall be deemed principal offenders, and punished as such.'
According to Harvey E. Jenkins' own testimony he was present and went out on the porch with a cocked shotgun ready and intending to shoot at anyone 'aiming at me or my brother.' Thus, he was 'present, aiding and abetting, or ready and consenting to aid and abet' in the homicide. The jury very evidently believed Morelock's testimony that the shotgun blast preceded the pistol shot, and did not believe the defendants' story that Robert had already fired the fatal shot before Harvey came out on the porch and that the shotgun was only then discharged accidentally.
In 22 C.J.S. Criminal Law § 85, pp. 250--251, it is said:
'A principal in the second degree, or an aider and abettor as he is frequently called, is one who is present actually or constructively, aiding and abetting in the commission of the felony; one who so far participates in the commission of a crime as to be present...
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