Johnson v. State
| Decision Date | 20 January 1912 |
| Citation | 143 S.W. 1134 |
| Parties | JOHNSON v. STATE. |
| Court | Tennessee Supreme Court |
Henderson & Henderson, for plaintiff in error. Attorney General Cates, for the State.
The plaintiff in error was convicted of voluntary manslaughter at the April term, 1911, of the circuit court of Williamson county, and sentenced to a term of five years' confinement in the state penitentiary. He has appealed and assigned errors.
The judgment must be reversed because of the following error committed on the trial: During the argument before the jury one of the attorneys representing the state made the point that the witnesses for the state were more likely to remember the transaction correctly, because they had testified before the grand jury, and had thereby gotten the facts impressed upon their minds more deeply than had the witnesses for the plaintiff in error. This statement was immediately objected to by the attorney for the plaintiff in error, on the ground that there was no testimony showing the fact of such examination of the state's witnesses before the grand jury. Thereupon the attorney then addressing the jury on behalf of the state read to the jury a memorandum on the back of the indictment purporting to show that the witnesses referred to had been examined before the grand jury. Plaintiff in error's attorney again objected, on the ground that this memorandum had not been put in evidence. Thereupon the trial judge ruled that it was competent for the attorney for the state to refer to the memorandum simply to show the fact that the witnesses had been so examined. Plaintiff in error's attorney again objected, but the objection was overruled.
The point was very material, because, owing to the absence of the plaintiff in error from the state, the first trial of the case at the April term, 1906, had not occurred until a period of more than eight years had elapsed from the date of the homicide. Hence the argument on the part of the plaintiff in error's attorney that the memory of the witnesses on both sides was likely to be dim and unreliable, when the second trial occurred at the April term, 1911, and the reply of the attorney for the state before referred to, showing why the memory of the state's witnesses was more likely to be accurate than that of the plaintiff in error's witnesses.
The memorandum on the back of the indictment was not evidence, and should not have been referred to at all. We have no doubt the plaintiff in error's defense was seriously injured, and the results of the trial affected, by this action of the attorney for the state and the ruling of the trial judge. The injury would have been a decided one happening at any stage of the trial; but, happening as it did, in the closing address, when the plaintiff in error's attorney had no reply, it must have been even greater, and especially in view of the fact that there was a very great conflict in the evidence. We have read with care the whole record, and we have rarely seen one in which there was greater conflict. According to eyewitnesses who testified for the state, Mike Copeland, the subject of the homicide, was ruthlessly shot down by plaintiff in error while approaching with outstretched hands, begging him not to kill his brother, Marse Copeland, at a time when the latter was not offering to do plaintiff in error any harm, although it is conceded that a few moments before this Marse Copeland had used threatening language to plaintiff in error, and had exhibited a pistol, and had demanded of plaintiff in error that he settle at once a small debt which he claimed the latter owed him. The construction which the state's witnesses gave the matter was that when Marse Copeland advanced, using this threatening language and manner, plaintiff in error receded a few steps, drew his pistol, and said, "Let's fight it out;" that thereupon Marse Copeland stopped, and Mike Copeland interceded for his brother in the manner above stated, and plaintiff in error shot him in the bowels, and said to him, "Now, d___ you, lie down and die;" and, having thus disposed of Mike, he turned his attention to Marse, and began shooting at him, and Marse did not shoot until he was then attacked. According to an equal number of eyewitnesses introduced in behalf of plaintiff in error, when Marse came up and made the demand for the debt, and used the threatening language, and exhibited the threatening manner above referred to, Mike Copeland drew a knife from his pocket and at once intervened in behalf of his brother, approaching plaintiff in error with the open knife, and threatening to kill him, and striking at him with his knife, and actually cutting his clothes, and while Mike was so acting the plaintiff in error shot him and killed him.
In view of this great conflict in the evidence, and the fact that the witnesses were examined on the last trial some 14 years after the homicide, the point made by the use of the memorandum on the back of the indictment was very important.
Objection was made to the charge of the court as a whole because too meager. We think the requests which the trial judge gave in charge added enough to save the charge from this objection, although it would have been much better if his honor had indicated more clearly the legal rules applicable to the different phases of the case.
It is said the charge was inaccurate upon the subject of involuntary manslaughter. If there was any inaccuracy, it was such as the plaintiff in error could not complain of. Moreover, there was no evidence indicating involuntary manslaughter. All of the witnesses, plaintiff in error included, testified that plaintiff in error shot at Mike Copeland. Plaintiff in error says he shot him because he was advancing on him with an open knife in his hand. The charge upon the subject of involuntary manslaughter was unnecessary, when there was no evidence at all in any way indicating that there had been such involuntary manslaughter. However, the plaintiff in error was not injured by what was said in the charge upon this subject.
It is insisted the court below erred in giving in the charge to the jury the following instruction offered by the state:
"I further charge you that if you find from the proof beyond a reasonable doubt that, at the time the defendant shot Mike Copeland, the latter was not advancing upon him with a knife, but was only interceding as a peacemaker, and had thrown himself between the defendant and Marse Copeland to prevent a difficulty, having nothing in his hands, and that the defendant could see that he had no knife in his hands, and had no reasonable ground on which to base an honest belief that he was in danger of death or great bodily harm at the hands of Mike Copeland, then he would not have the right to shoot Mike Copeland, and the plea of self-defense would not avail him; and this is so, even if he believed that Marse Copeland was putting him in danger of death or great bodily harm, provided he shot Mike purposely."
We think this instruction was properly given.
It is insisted the trial judge committed error in refusing to give the following special instruction offered by the plaintiff in error:
"I charge you that if you find from the evidence that the defendant was sitting peaceably and quietly, and did nothing to bring on the difficulty in this case, and if you find that Marse Copeland approached the place where the defendant was thus sitting, and menaced him in such language and tones and by such acts as caused the defendant to be apprehensive for his life, or apprehensive of great bodily harm, and if you find that the deceased undertook to intervene and disarm the defendant when the defendant was faultless, and thus commit an assault upon the defendant which the defendant had apprehended put his life in jeopardy, either from Marse Copeland or from the deceased, then the defendant, if he, as I instructed you, was apprehensive for his life or great bodily harm, would have the right to act upon such apparent danger, and, if he acted in good faith, he could slay his adversaries in order to save himself from death or...
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