Lemons v. State

• Decision Date: 07 November 1896
• Citation: 37 S.W. 552,97 Tenn. 560
• Parties: LEMONS v. STATE.
• Court: Tennessee Supreme Court

37 S.W. 552

97 Tenn. 560

LEMONS v. STATE.

Supreme Court of Tennessee.

November 7, 1896

Appeal from circuit court, Hamilton county; John A. Moon, Judge.

John Lemons was convicted of murder in the first degree, and appeals. Affirmed.

Clift & Cummins, D. R. Nelson, and James Maynard, for appellant.

W. E Donaldson and G. W. Pickle, Atty. Gen., for the State.

McALISTER J.

The plaintiff in error was convicted in the circuit court of Hamilton county of the murder of one Eugene Lynch, and condemned to be executed. The prisoner has appealed.

The deceased was a constable of Hamilton county, and had arrested the prisoner, together with one Massy Skyles, the woman in the case, and had taken them to his residence for custody during the night, preparatory to removing them to the county jail the next morning. Early in the night, the prisoner was permitted, in charge of an attendant, to step outside the house, where, eluding the vigilance of the guard, he escaped in the darkness. Next morning, about 6 o'clock, the constable started to Chattanooga, in charge of the woman Massy Skyles, for the purpose of lodging her in jail. The officer and his prisoner were walking, and, at the moment they reached the south end of the Cincinnati Southern Railroad Bridge, the deceased was mortally wounded by a shot delivered from an ambuscade on the side of the road. The wounded man was conveyed to the residence of a neighbor where he died after lingering three days. The dying declarations of the deceased were to the effect that John Lemons, the prisoner at the bar, had shot him from the bushes down by the Cincinnati Southern Bridge. "Just before he died," says the witness Goodson, "he turned over, and handed me his hand, and said that he was going to take a long sleep, and said for me to tell that John Lemons shot him from ambush."

The defendant was examined as a witness in his own behalf, and denied that he committed the deed, or that he was in the immediate vicinity at the time, but does not undertake to support his defense of an alibi by any very positive or satisfactory testimony. On the other hand, the incriminating facts and circumstances pointing to the defendant as the perpetrator of this crime are cogent and convincing. In the first place, it is shown by several witnesses that, for some reason not fully disclosed in the record, the deceased had incurred the animosity of the prisoner, and that the latter had threatened, if the deceased attempted to arrest him, he would kill him. These threats, it appears, were made at intervals, ranging from two months until within a very short time of the killing, but were not regarded seriously by the witnesses, who describe the defendant as a joking, blowing sort of a fellow. It appears, however, that on the night of his arrest, after escaping from the custody of the guards the defendant went to several of his neighbors, for the purpose of borrowing a shotgun, and finally procured one from Henry Barnes, upon the pretext that he had seen a drove of wild turkeys, and desired to hunt them. The defendant was next seen about 5 o'clock that morning, at a neighborhood store, where he purchased a small quantity of buckshot, calling for the largest in the stock. He is next seen on the premises of one John Howser, where his cousin Malinda Lemons resided, and in her presence he discharged the gun, and loaded it again; saying he was going to the iron bridge, that Lynch (the deceased) should not take Massy Skyles to jail, and that, if he did not turn Massy loose, he was going to kill him. About 6 o'clock he leaves the Howser premises, gun in hand, going in the direction of the iron bridge, and on the way is recognized by an acquaintance, to whom the defendant remarked, "Good bye, old boy; don't give me away," or "don't give it away." Another witness testified that he saw defendant standing in the edge of the bushes below the Cincinnati Southern Bridge, with a gun, about 20 minutes before Lynch was shot. A witness for the state testified that he was 80 steps from the point where Lynch was shot; that he heard the report of the gun, saw the smoke, and heard a voice in the woods say: "'I told you yesterday, damn you, I would get you;' and said to the woman: 'Come away from there. He can't hurt you. I have done him."' This statement is corroborated by another witness, who heard the report of the gun, and also a voice, which he thought was that of John Lemons, telling the girl to run, and, with an oath, assuring her, "He can't do nothing." The shooting occurred at 6 o'clock and 25 minutes, as indicated by the watch of deceased, which was stopped at that hour and minute by one of the buckshot fired from the gun. At this point an attempt is made to show that defendant could not have committed the deed, for the reason that a credible witness, Esq. Card, testifies that he saw and talked with the defendant three quarters of a mile from the scene of the killing at 4 minutes past 6 o'clock, and that witness heard of the killing at 6 o'clock and 25 or 30 minutes from a person who walked from the scene a distance of three-quarters of a mile. The witness Esq. Card further stated that, when he saw defendant, he had a gun on his shoulder; that he left witness, and went to the narrow-gauge railroad, and turned, and went down it towards his home. The witness says, further, however, that, when he last saw John going on down the narrow-gauge, he had not got to the road leading to the baseball grounds. The baseball grounds, it seems, are between the narrow-gauge railroad and the Cincinnati Southern Bridge, where the killing occurred. Another witness testifies that he saw defendant about 6 o'clock that morning. "He left me, and went towards Cincinnati Southern Bridge. He had a gun with him, and turned to baseball ground.' So it is evident that defendant was then on his way to the scene of the tragedy, and the variation in time is wholly immaterial, since it may be due to misrecollection or want of exact knowledge of the time on the part of the witness; or it is possible that the watch of the deceased may have been incorrect in recording the time of the shooting, or it may have stopped before the shooting. It is more probable that the witness is mistaken in his recollection or knowledge of the exact time he saw defendant than that the whole body of the state's proof, including the declarations of the prisoner himself, should be untrue. Furthermore, it is a well-settled rule that proof of an alibi should cover the whole of the time of the transaction in question; for, if it be possible that the prisoner could have been at both places, the proof of the alibi is valueless. 3 Rice, Ev. § 418. This court, in speaking of this defense, says it is liable to abuse, not only when a design exists to practice a fraud on the state, but, even when that design does not exist, by ignorant mistakes as to the particular hour and lapse of time; that it requires great strictness and attention on the part of the court and jury to avoid being frequently misled by it. Thompson v. State, 5 Humph. 138.

It is very clear to our minds upon this proof that the defendant was in both places. It is shown in this record that, after the deed was committed, defendant applied to one Thomas Reno a kinsman by marriage, to set him across Saddy creek, telling him he had killed Eugene Lynch on the end of the bridge. He asked the witness to go and get...