Johnson v. State
| Citation | 217 Tenn. 234,397 S.W.2d 170,21 McCanless 234 |
| Parties | , 217 Tenn. 234 Algie Junior JOHNSON, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. |
| Decision Date | 09 December 1965 |
| Court | Supreme Court of Tennessee |
Hugh Stanton, Sr., Public Defender, and Walker Gwinn, Asst. Public Defender, Memphis, for plaintiff in error.
George F. McCanless, Atty. Gen., and Thomas E. Fox, Asst. Atty. Gen., Nashville, for defendant in error.
The plaintiff in error, Algie Junior Johnson, was convicted of having unlawful carnal knowledge of a female under the age of twelve years. He was sentenced to serve twenty years in the State Penitentiary. This is the second appeal in this case, the first resulting in a reversal on the ground that the confession of Johnson admitted to proof in the case was not free and voluntary.
The case has now been tried again, absent the confession, and the punishment has been fixed by the jury as aforesaid.
The plaintiff in error now assigns as error that:
(1) The evidence preponderates against the verdict and in favor of the innocence of the accused; (2) the trial judge permitted the defendant to be tried on an additional count in the indictment charging assault and battery with intent to have unlawful carnal knowledge of the same female (under twelve years of age) and instructing the jury regarding this offense, although he had been acquitted of this count on a previous trial.
The evidence is before us in narrative form and we think that it may be fairly summarized as follows:
Charlotte Taylor, a girl eight years of age at the time of the incident in question, on March 3, 1964, was carried to the John Gaston Hospital in Memphis, Tennessee, during the evening of that date because of considerable bleeding and upon examination by Dr. Arthur P. Fort, he found a laceration at the head of the vaginal canal near the cervix, at a position comparable to 8:00 o'clock, about one quarter of an inch long, and it appeared to him to have been caused by sexual intercourse with an adult male.
Upon being asked by the doctor what had caused the injury, the girl informed him that her father had forced her to have sexual intercourse with him. After washing the blood from the injured part of the body, the doctor could not ascertain that she had engaged in recent sexual intercourse, but he did say that she had had a number of such experiences over a period of time. The doctor testified that 'the condition of her vagina indicated repeated acts of masturbation or inserting foreign objects into her vagina, that her condition was enlarged and showed sexual indulgence.' He said 'repeated acts of masturbation might damage the hymen, but would not be apt to tear the muscles in the vagina.'
Charlotte said that the doctor was the first person that she had told about her activities with the defendant and that no one had ever done anything like this to her before the date in question except the defendant. She said also that after the event the defendant The handkerchief of the defendant and the little girl's panties were found by her mother hanging out to dry near each other.
Deputy Sheriff Sansone arrested the plaintiff in error on the evening of March 3, 1964, and stated that in his opinion Johnson was intoxicated at the time of the arrest, but when asked if he had sexual relations with Charlotte Taylor he answered in the negative. The defendant denies the charge and also denies that he was drunk when arrested.
The defendant Johnson testified that he worked for Joe Pass, Jr., on his farm. Wilma Taylor came to live with him in May, 1962 and brought her children, two girls and a boy. The parties were never married apparently. Wilma Taylor would leave home each morning at about 7:30 o'clock and the children would leave at about the same time to go to school. Wilma usually returned home at about 5:00 o'clock each afternoon, and this event was said to have occurred about 4:45 o'clock, P.M.
When asked by his lawyer to explain, if he could, why Charlotte accused him of this act when he did not have anything to do with her, he said that
He said he kept beer in the house but that he was not intoxicated at the time of the alleged incident.
Wilma Taylor, the mother of the little girl, testified for the defense and said that she arrived home at about 5:00 o'clock on the afternoon in question and found that Charlotte was bleeding as indicated above, but that she did not notice any blood on the bed or on the clothes of Johnson. She said that she expressed a desire to the defendant to take Charlotte to the hospital, but he replied: 'No, let's wait until tomorrow and we will take her to a private doctor.' She said that she had never suspected that the defendant had done anything to Charlotte and that on Sunday after Charlotte returned from the hospital she, Charlotte, told her that she had caused herself to bleed by masturbation. The above comprises all of the material evidence in this case and we are asked to reverse and remand the case on the basis that the evidence preponderates against the verdict and in favor of the innocence of the accused.
We are also asked to reverse and remand the case for a new trial on the basis that there is no evidence to corroborate the testimony of the little girl. We cannot agree with this insistence because there is ample corroboration by the doctor and other circumstances which we have detailed hereinabove. We are satisfied that the preponderance of the evidence is not against the verdict of the jury and in favor of the innocence of the accused.
In considering this case on appeal, we do so with the presumption that the defendant is guilty as found by the jury. and approved by the court. It must be remembered that the presumption of innocence disappears after a conviction and the defendant is presumed to be guilty here. The jury and the trial judge see and hear the witnesses, face to face, and are in a far better position to determine who is correctly detailing the truth of the matter than we are, who see only the record. Holt v. State, 210 Tenn. 188, 197, 357 S.W.2d 57 (1962).
The first assignment of error is, therefore, overruled.
We now consider the second assignment. The indictment is in two counts, the first charging the plaintiff in error with having unlawful carnal knowledge of a female under the age of twelve years, under T.C.A. § 39-3705, and the second charges assault and battery upon a female under the age of twelve years with intent to carnally know her, under T.C.A. § 39-606.
On the first trial Johnson was convicted of the crime of actually having unlawful carnal knowledge, and the jury made no mention of the offense of assault and battery with intent to have carnal knowledge. The second assignment of error is, in essence, a claim of former jeopardy. The plaintiff in error says that by the silence of the jury upon the second count of the indictment on the first trial that this worked as an acquittal of that count and that he should not thereafter have been put to trial on that count of the indictment. It is true that one may be acquitted of a count in an indictment by the silence of the jury as to a particular count. See State v. Abernathy, 153 Tenn. 441, 284 S.W. 361 (1926); Harvey v. State, 213 Tenn. 608, 376 S.W.2d 497 (1964). However, the facts...
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