Kirkendoll v. State

Decision Date06 May 1955
Citation198 Tenn. 497,281 S.W.2d 243,2 McCanless 497
Parties, 198 Tenn. 497 Harry KIRKENDOLL and Charlie Sullins v. STATE of Tennessee.
CourtTennessee Supreme Court

D. M. Harrison, Jr., Lebanon, for plaintiff in error Sullins.

Z. Alexander Looby and Avon N. Williams, Jr., Nashville, for plaintiff in error Kirkendoll.

Knox Bigham, Asst. Atty. Gen., for the State.

BURNETT, Justice.

This is an appeal from a conviction of murder in the first degree wherein the punishment was fixed at death by electrocution.

First, lest we might overlook it in the end, we feel that we are called upon to say that able counsel for both plaintiffs in error have done a masterly piece of work in representing these parties. Their briefs herein are excellent and the arguments made before this court were good. We feel called upon to make this rather unusual statement due to the fact that, as we read this record, counsel really had nothing to go upon in defending these parties except to try in every human way--far beyond the call of duty--to try to minimize the sentence that the plaintiffs in error would receive.

The operator of a filling station on one of the main streets of Lebanon who was working in the nighttime was shot and killed on March 3, 1953. When he was found there was a gun shot wound through his shirt and heart. It was not known then and there was apparently no lead that could be taken up immediately who committed this ghastly murder. Some days after the murder was committed one of the merchants of the County reported to the police that the plaintiff in error Sullins had paid a small account in his store with a $100 bill. This aroused the suspicion of the merchant because people in Sullins' walk of life did not have $100 bills.

The plaintiff in error Sullins is a white man and a rather ignorant tenant farmer and a constable in his district. Kirkendoll is a colored man living on a farm near Lebanon belonging to the mother of two members of the State Bar, to wit: Alfred and Lon McFarland. The merchant who had received this $100 bill being suspicious communicated the fact to the officers. The officers immediately made some check on Sullins and in the early part of May, some two months after the murder, they went to the farm where Sullins lived and attempted to bring him into the town of Lebanon for questioning. It seems from the testimony of these officers that Sullins was nervous, he cursed the officers and demanded the production of a warrant. These officers went back to town and then Sullins returned with them to the Lebanon City Hall where he was questioned at length by the Mayor, and other officials. To begin with and for some time he denied knowing anything about the crime and denied that he had ever had a $100 bill in his life when he was finally advised by the officers that he had presented such a bill to the merchant. Sullins denied this and the merchant was sent for. While they were waiting for the merchant, Sullins asked the Mayor if it would be any easier on him (Sullins) if he told about it, and was advised by the Mayor that no promises would be made. Sullins thereupon stated that he had to tell it anyway because he had not been able to sleep at night and that his hair was turning gray. He gave a written statement telling about how the crime was committed.

According to this confession, he and Kirkendoll had planned in the morning of the day the crime was committed to rob the filling station attendant. Somewhere around 7:30 or 8:00 that night Sullins drove his truck to the McFarland farm and picked up Kirkendoll and the two of them went into the town of Lebanon and got some beer. After observing the filling station for quite a time, Sullins parked his car around the corner in the next block to the filling station and Kirkendoll got out with the rifle, stating that Collier (the filling station attendant) might have a gun and he, Kirkendoll, might need one. Sullins says that when Kirkendoll returned to the car he told him that he had shot Collier and had taken a gun, money pouch and pocketbook. The two then drove back out to the farm within a short distance of where Kirkendoll lived and Sullins divided the money, each of them getting somewhere around $200 and in this money they each had a $100 bill. Sullins' $100 bill had been given to the merchant. Sullins stated that the robbery was planned and that it was decided at that time that they would hit the filling station attendant in the head and not shoot him and he also stated that he thought Kirkendoll was going to hit him in the head and not shoot him. He says that the rifle that Kirkendoll used belonged to his, Sullins' nephew.

Of course the obvious thing for the officers to do after procuring this confession from Sullins was to go to the McFarland farm and take Kirkendoll into custody. At the time they took him into custody Mr. Lon McFarland was at home and told him to go on with the officers in town that they would not hurt him and he would see that they treated him nice, etc. Kirkendoll after he was taken into town was questioned rather extensively on the way to town and when he got there about his part in the crime and he continuously denied knowing anything about it. Sullins' statement was read to him and he still denied it. Sullins was present in town when Kirkendoll was talked to and Sullins cursed him, accused him of lying, tried to get him to tell about the matter but he consistently refused to do so. In Kirkendoll's presence, Sullins made an additional statement or confession to the effect that a day or two before the killing an unsuccessful attempt had been made by Kirkendoll to rob the filling station attendant. He also stated that when he took Kirkendoll home, that is, after the crime was committed, that he, Sullins, broke the stock of the rifle. Kirkendoll did make a statement that evening in which he admitted having been with Sullins one night in Lebanon but said nothing about the robbery and killing. Both men were subjected to lie detector tests, by their consent. They were placed in jail in Lebanon until the following morning between 4:30 and 5:00 o'clock, when for their protection, they were moved from the jail in Wilson County to Murfreesboro.

They were taken to the Murfreesboro jail on May 14, by two Wilson County officers. One of these officers drove the automobile and Sullins was on the front seat with him while Kirkendoll was on the rear seat with the other officer. Both plaintiffs in error while they were thus riding from Lebanon to Murfreesboro were told by these officers that they thought, that is the officers thought, that it was best to take them away from Lebanon on account of the feeling of the people there about the crime. Apparently the officers and the plaintiffs in error talked about the case from the time that they left Lebanon until they arrived in Murfreesboro. It seems that Sullins all the time was trying to get Kirkendoll to tell the truth about the matter. When they had gone about 10 or 12 miles from Lebanon Kirkendoll asked the officers if they knew he was lying the night before. These officers told him that they did and Kirkendoll then stated that he wanted to tell the truth about the whole thing and that what Sullins had said the night before was right. The officers told him to wait until they got to Murfreesboro where his confession could be written down. When they arrived at the jail they were met by the sheriff of Rutherford County and this officer then took Kirkendoll's confession which was given in Sullins presence.

Kirkendoll's confession is indeed a very lucid statement of one of the most cold-blooded crimes that has ever been our duty to read about. After describing the crime, commission thereof at some detail, Kirkendoll says:

'He (he, filling station attendant) went into his station door. He turned around in his front door, facing me, just like he was looking right at me. I took aim with my rifle on one knee. I aimed at his heart. Just as I pulled the trigger, he jumped straight up and tried to hollar. He couldn't hollar, just made a sound. I knew that I had hit him then. He fell right backward, stretched out in the floor. He never kicked. I knew for sure that I had him then. I came from behind the sign and station to see if things were clear, stood and watched for about 10 seconds. Seeing everything clear, I ran up and grabbed his billfold out of his left hip pocket. I then run back behind the sign, peeps out again to see if things were clear. Everything was clear. I run back to Mr. Collier, grabs his money pouch on his belt. I then take off to the car where Mr. Sullins was waiting for me.'

Prior to this portion of the quoted statement Kirkendoll stated that he got out of the car about 300 feet from the filling station and crawled and crept in the shadows up to within about 150 feet of the station and then he committed the act above quoted. After telling these things the statement further is that Kirkendoll threw the part of the rifle which was left after Sullins had broken it, and the purses which he had taken off of the filling station attendant, into a well at the back of his house, that is, Kirkendoll's house and that he had hidden the money in a tin cup in a little red barn behind the McFarland house. As before said Sullins was present and heard Kirkendoll's statement and said that it was true.

Following this statement the officers went to the McFarland place and found the can containing the $100 bill and fished out of the well the filling station attendant's billfold and money pouch and a part of the rifle where Kirkendoll said he had put them. Two days later, while they were still at the Murfreesboro jail the plaintiffs in error both repeated their confessions of this crime, in considerably more detail than their written statements, and this narration was recorded on a tape recorder. This recording was played back to the jury.

There is no evidence or testimony offered in denial of the...

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34 cases
  • State v. Stephenson
    • United States
    • Tennessee Supreme Court
    • May 9, 1994
    ...Absent some showing by the defendant, however, that he was prejudiced, such comments do not require reversal. See Kirkendoll v. State, 198 Tenn. 497, 281 S.W.2d 243, 254 (1955) (prosecutor's references to religious F. Daily Transcripts Stephenson next makes a novel claim that the trial cour......
  • State v. Cribbs
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    • Tennessee Supreme Court
    • April 13, 1998
    ...See State v. Stephenson, 878 S.W.2d 530, 541 (Tenn.1994)(judge's reference to Bible passage during voir dire); Kirkendoll v. State, 198 Tenn. 497, 281 S.W.2d 243, 254 (1955) (prosecutor's reference to religious law during closing argument). In the face of this clear and longstanding precede......
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    • September 28, 1998
    ...law during a criminal trial are inappropriate. See State v. Stephenson, 878 S.W.2d 530, 541 (Tenn.1994); Kirkendoll v. State, 198 Tenn. 497, 281 S.W.2d 243, 254 (1955). Such references, however, do not constitute reversible error unless the appellant can clearly establish that they had some......
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    ...MS. CLARK:--Cauthern shall be death. THE COURT: Be seated please. The Supreme Court dealt with this very issue in Kirkendoll v. State, 198 Tenn. 497, 281 S.W.2d 243 (1955), a case wherein the death penalty was affirmed. The Court held it was not error for the trial judge to accept a juror w......
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