Keith v. State

• Citation: 403 S.W.2d 758,218 Tenn. 395,22 McCanless 395
• Parties: , 218 Tenn. 395 Paul KEITH, Plaintiff in Error, v. STATE of the Tennessee, Defendant in Error.
• Decision Date: 22 April 1966
• Court: Supreme Court of Tennessee

Page 758

403 S.W.2d 758

22 McCanless 395, 218 Tenn. 395

Paul KEITH, Plaintiff in Error, v. STATE of the Tennessee, Defendant in Error.

Supreme Court of Tennessee.

April 22, 1966.

Lance B. Bracy and W. P. Bryant, Jr., Springfield, for plaintiff in error.

George F. McCanless, Atty. Gen., and Robert F. Hedgepath, Asst. Atty. Gen., Nashville, and James M. Porter, Dist. Atty. Gen., Springfield, prosecuted the case in the trial court, for defendant in error.

OPINION

WHITE, Justice.

Paul Keith was indicted March 26, 1964, for the first degree murder, on January 11, 1964, of James Osborne. On the first trial of the case, on June 23, 1964, the jury was unable to agree and the court declared a mistrial. The case was tried again on April 6, 1965, and the jury found the defendant guilty of murder in the second degree, and fixed his punishment at ten years imprisonment. Upon his motion for a new trial being overruled, the defendant was granted an appeal to this Court, which has been seasonably perfected.

The facts are generally undisputed, with the exception of what occurred immediately before and after the fatal blow was struck. The defendant and the deceased were brothers-in-law, the deceased having married the defendant's sister. On the night of the killing, the defendant Keith, a man named Howell Pope, a Mr. and Mrs. LaMaye, neighbors, and their children, were visiting in the Osborne home in Robertson County. According to the evidence there was some heavy drinking of both whiskey and beer. Everyone seemed to be in good spirits. The defendant and the deceased and the LaMayes were playing a card game called 'Rummy' when the defendant and the deceased got into an argument over the rules and started fighting and then scuffling on the floor. They were separated and the defendant was ordered to leave the house.

Mr. Pope testified that when the defendant was ordered from the home he, Mr. Pope, left with him, suggesting that he would take him home. Pope further testified that he and the defendant went outside and got into his truck, whereupon the defendant said, 'Wait a minute.' The defendant then went back to the home and shortly thereafter Mr. Pope heard screams coming from the house. Edmond LaMaye testified that after the defendant went out the door, he and his wife discussed the possibility of their leaving with the deceased. He said that the deceased and his wife convinced them that they should not leave but should stay a little while longer.

A short time after the defendant left the house, the deceased went into the back part of the house, picked up an ax and hurriedly went to his front door. After opening the front door and taking one step out onto the front porch, the defendant hit deceased in the head with a piece of stove wood, from a pile of wood stacked beside the front door, and knocked him back into the living room. Deceased died one week later from the blow.

Defendant's theory of the case is essentially that of self-defense. His testimony is that upon being ordered to leave the house he stepped out onto the front porch, wiped his nose which was bleeding, apparently because of the fight inside, and reached into his pocket for a cigarette. He stated that before lighting the cigarette he heard a noise, looked around and saw the deceased coming at him with the ax drawn in a threatening position, whereupon he reached for a piece of the stove wood and with one motion struck the deceased. The defendant denied the witness Pope's testimony that defendant had gotten into Pope's pickup truck to leave, but then had gotten out and gone back to the house.

The only other person who saw the defendant after he left the house that night was the eleven-year old son of the deceased. This boy, Ray Osborne, testified that he was outside and saw the defendant swinging a piece of stove wood on the porch of the home, before deceased stepped out onto the porch. The boy did not, however, see the fatal blow.

The first five assignments of error all involve the question of whether the evidence preponderated against the verdict of the jury, particularly with regard to the question of self-defense. First of all, we think there is conclusive evidence, even from the defendant's own testimony, to show that the crime of murder in the second degree was committed. The jury could have found conclusively that the defendant struck and killed the deceased with malice aforethought.

It is * * * well-settled in this State that the verdict of the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflict in favor of the theory of the State. Such verdict also removes the presumption of innocence of the accused and raises a presumption of his guilt and puts upon him, here, the burden of showing that the evidence preponderates against the verdict and in favor of his innocence. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963), and numerous cases cited therein.

The only evidence in defendant's favor was that he committed the crime of self-defense and, therefore, should be excused. It must be remembered, however, that for the defense of self-defense to be well pleaded and made out, the defendant must convince the jury that the deceased's actions engendered in the defendant a genuine and well-founded fear of great bodily harm. Nance v. State, 210 Tenn. 328, 358 S.W.2d 327 (1962); Cathey v. State, 191 Tenn. 617, 235 S.W.2d 601 (1951).

While there is no conflict in the evidence that deceased presented a formidable threat in coming out onto the porch with an ax, there is conflicting testimony as to whether defendant was put in fear of his life by this threat. On the contrary, there is considerable evidence that defendant was not attempting to avoid deceased, but either was waiting for him out on the porch or voluntarily went back to the house to encounter deceased after starting to leave.

The fact that he may have been waiting for deceased is supported by the evidence that he already had the stove wood in his hand and was swinging it, and that deceased was struck immediately after he crossed the threshold. It is difficult to believe, and apparently the jury did not believe, that as deceased was wielding the ax in a threatending position, defendant reached for the stove wood, picked up a piece, and his deceased across the head, all in the time that it took deceased to take one step outside the door. The jury resolved this conflict in favor of the State, and we think they were supported by strong evidence in rejecting defendant's theory.

It is also asserted by plaintiff in error that the verdict of the jury was harsh and evidenced passion and prejudice. As we have stated before, the evidence clearly warranted a conviction of second degree murder. The minimum sentence for second degree murder is ten years. The sentence seemed to show leniency as opposed to harshness, so we reject this assignment of error.

The remaining assignments of error deal with a discussion between the trial judge and the jury after the formal written charge was submitted and the jury had retired. After deliberating for some time the jury returned to the courtroom with a question:

FOREMAN: Your Honor, we need a little information. If we find the defendant guilty to one of the charges, I won't say which charge, are we allowed to set the sentence flat. Where he won't be eligible for parole until that certain length of time.

THE COURT: No, sir. The legislature in Tennessee gave us an indeterminate sentence law and you and I have no control over that.

FOREMAN: Well, that's what we were in a dispute about. We weren't sure about that.

It is insisted that reversible error was here committed in that (1) the judge and jury improperly discussed the question of parole for the defendant, and (2) this discussion was in the nature of supplemental instructions which are required to be in writing.

On the question of the impropriety of the judge and the jury discussing the matter of parole or pardon, the leading case in this State is Williams v. State, 191 Tenn. 456, 234 S.W.2d 993 (1950). There the jury returned a verdict of death by electrocution on a first degree murder charge. After the court had fully charged the jury and it had deliberated approximately an hour and a half, the jurors returned to the courtroom and asked:

If we give this man a sentence for a term of years, will this mean that he will have to stay in prison the whole time?

The trial judge answered:

Not necessarily. It would depend upon the good behavior of the defendant and the attitude of the parole board under the indeterminate sentence law, but that is something with which you have nothing to do.

This Court reversed and remanded for a new trial, noting:

The jury in the instant case would have sentenced the defendant to some term in the penitentiary had they believed that he would have to serve the full term of the sentence.

It is apparent that the harshness of the sentence assessed by the jury, which might have been life imprisonment instead of death had they not been apprised of the possibility of parole, was a determinative factor calling for a reversal in this particular case.

Two other cases in which capital punishment was meted out approved what should have been the proper response of the trial judge upon a question from the jury about parole. In Porter v. State, 177 Tenn. 515, 523, 151 S.W.2d 171 (1941), and Hale v. State, 198 Tenn. 461, 478, 281 S.W.2d 51 (1955), the trial judge responded simply with the admonition that the only instructions to govern your actions as jurors are embodied in the written charge which is in your possession.

In Graham v. State, 202 Tenn. 423, 304 S.W.2d 622 (1957), it was held improper for the State's Attorney to argue from the Code about the powers of the Board of Pardons and Parole, the reason being, of course, that it is improper for the jury to consider parole when fixing a defendant's punishment. Although...