Johnson v. State
| Decision Date | 02 April 1938 |
| Parties | JOHNSON v. STATE. |
| Court | Tennessee Supreme Court |
C. L. Cummings, of Murfreesboro, for plaintiff in error.
Nat Tipton, Asst. Atty. Gen., for the State.
Plaintiff in error, Joe Johnson, hereinafter referred to as defendant, was indicted for assault to commit murder in the first degree upon the person of Walter Beavers. Upon his trial he was convicted of simple assault, and his punishment fixed at a fine of $150.
Defendant has appealed to this court and assigned errors.
By the first assignment it is asserted that there is no evidence to support the verdict, and that the evidence preponderates in favor of the innocence of defendant.
The record discloses that on August 14, 1937, the defendant, together with L. J. Hazzard and one Piper, all State Game Wardens, discovered the prosecutor, Walter Beavers, along with some other persons, engaged in seining for fish in Stone river, in Rutherford county, in violation of the Game and Fish Laws of the State. Code 1932, § 5122 et seq., as amended. All of these parties submitted to arrest, except the prosecutor, who attempted to escape.
Defendant, in an effort to stop the prosecutor and prevent his escape, fired his revolver three times. The prosecutor testified that the first shot was fired straight up in the air; that the second shot hit in the water 10 or 12 feet in front of him, while he was on the bank of the river; that he then jumped in the river and lay down with only his head remaining out of the water; and that the defendant then shot a third time, the bullet striking within a foot of his head. The witness Seward testified that defendant fired three times, and that he shot at the prosecutor; the last shot striking right at the prosecutor, somewhat to his side.
Defendant admits the firing of the shots, but says he did not aim at the prosecutor and had no intention of killing him, but shot because the prosecutor ran and he was afraid that he was going to get away. Defendant testified: "I was afraid he was going to get away and I shot merely to scare him and so that he would stop." He says that he did not aim at the prosecutor, but shot across the river into a big sycamore tree.
The witness Hazzard testified:
On cross-examination Hazzard said: "I don't know why he (Beavers) got back in the river."
Officer Piper testified: "I was upon the...
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