Leonard v. State

• Decision Date: 13 April 1927
• Citation: 292 S.W. 849,155 Tenn. 325
• Parties: LEONARD v. STATE.
• Court: Tennessee Supreme Court

292 S.W. 849

155 Tenn. 325

LEONARD v. STATE.

Supreme Court of Tennessee.

April 13, 1927

Error to Criminal Court, Knox County; T. A. R. Nelson, Judge.

Elijah Leonard was convicted of murder in the first degree, and he brings error. Affirmed.

Roy H Beeler, Asst. Atty. Gen., for the State.

SWIGGART J.

The plaintiff in error, Elijah Leonard, has appealed from a judgment rendered by the criminal court of Knox county in January, 1926, upon a conviction for murder in the first degree.

The jury fixed the punishment of the plaintiff in error at death by electrocution, and the judgment of the criminal court was in accord therewith.

Four assignments of error have been made by the plaintiff in error in this court.

The fourth assignment is that the trial court erred in overruling an application for a continuance.

We do not find any ruling in the transcript to which this assignment of error can be applied. Affidavits of the plaintiff in error and his attorneys are copied in the transcript, separate and apart from the bill of exceptions but were neither made a part of the bill of exceptions nor a part of the technical record. They purport to set out reasons for a continuance, but there is nothing to show that they were ever called to the attention of the trial judge, or that the trial judge was asked to rule on any application for a continuance. We have, however, examined the affidavits, and fail to find them sufficient to entitle the plaintiff in error to a continuance, if, in fact, they were presented to the trial court. The fourth assignment is accordingly overruled.

The third assignment is that the trial court should have granted a new trial in order that plaintiff in error might have the benefit of the testimony of Maggie Stone. This witness was an inmate of the county jail, and, as such, became acquainted with the plaintiff in error. She claimed to have witnessed the homicide, and testified that at the time the plaintiff in error struck his wife, he was engaged in a scuffle with his wife and one or two of her sisters. Not only does it fail to appear on the record that the testimony of the witness was newly discovered, within the rule stated in Ross v State, 130 Tenn. 387, 170 S.W. 1026, but it appears that the testimony of the witness would have been in conflict with that of the plaintiff in error, who made no claim that he was engaged in such a struggle at the time he killed his wife. His defense was solely and altogether that he killed his wife because of sudden and uncontrollable impulse, aroused by statements of his wife, and that, on that account, he was not guilty of a deliberate and premeditated homicide.

We are therefore wholly unable to find any error in the action of the trial judge in refusing to grant a new trial because of Maggie Stone's testimony.

By the second assignment of error it is contended that a new trial should have been granted because a part of the trial was conducted in the absence of the plaintiff in error.

It appears from the evidence heard by the trial judge that, at the close of the argument of one of the attorneys for the plaintiff in error, the latter, at his own request, was taken by an officer into the jury room and into a closet opening into the jury room, but not out of hearing of the courtroom.

Mr. Harless, the court reporter engaged in reporting the trial, had his attention particularly directed to the incident, and testified that no door was closed between the plaintiff in error and the courtroom at any time.

One of the attorneys for plaintiff in error testified to the contrary as to one of the doors.

The officer testified that the attorney for the plaintiff in error had concluded his argument when the plaintiff in error left the courtroom, and that the attorney for the state had been up a short time when the plaintiff in error returned. The officer testified, "We was coming back when he commenced, was the way it happened." He further stated that the plaintiff in error could hear every word said at all times.

In reviewing the action of the trial judge on this issue of fact, we are required to affirm the trial court if there is any evidence to sustain him. Percer v. State, 118 Tenn. 765, 773, 103 S.W. 780; Sherman v. State, 125 Tenn. 19, 60, 140 S.W. 209; Thomas v. State, 109 Tenn. 684, 75 S.W. 1025.

We think the evidence sustains the finding of the trial judge that no substantial part of the trial took place in the absence of the plaintiff in error, and that the assignment of error is without merit.

The first and remaining assignment of error is that the evidence preponderates against the verdict and in favor of the innocence of the plaintiff in error of the degree of homicide of which he has been convicted.

Learned counsel, appointed by the court for the plaintiff in error to present his appeal, has made an earnest and sincere plea that the evidence heard by the jury fails to show the guilt of the plaintiff in error of a degree of homicide higher than murder in the second degree. It is argued that the elements of premeditation and deliberation are wholly lacking.

On the evening of August 27, 1925, about dusk, the plaintiff in error killed his wife by cutting her throat with a knife. It is the theory of the state that the plaintiff in error had long been jealous of his wife, and on account of a growing indifference towards him on her part he had both contemplated and threatened to kill her, and that the homicide was the result of such deliberate and preconceived purpose.

The plaintiff in error is a negro man about 27 years of age, and his wife, Anna Leonard, was about 22 years of age. They were married in January, 1925, after a short acquaintance. The record indicates that the plaintiff in error and his wife were happy and contented with each other for only a few months. The plaintiff in error testified that both his wife and her mother, Eva Simpson, were wholly dissatisfied with his earning capacity and constantly complained that he did not furnish enough money for the household expenses. The complaint of the plaintiff in error covers pages of the transcript, and is a long narrative of domestic abuse and grievance. He testified that on one occasion his wife assaulted him with a hatchet, in which she was assisted by her mother, and that he was driven from home. Just when this occurred does not appear, but the plaintiff in error testified that at the time of the homicide his personal effects were at the home of another negro woman.

Eva Simpson testified that the deceased did not assault the plaintiff in error with a hatchet, but that on one occasion the plaintiff in error engaged in a struggle with his wife, and that she intervened and pushed the plaintiff in error out of the house, or off the porch.

Luke Oliver, a witness for the plaintiff in error, testified that he passed the latter's home one evening and saw the plaintiff in error running out of the house and into the street, accompanied by some loud talking; and he reported the statement of the plaintiff in error as follows:

"Seemed like they was fussing or something and I said, 'Lige, what is the matter?' and he said, 'They won't let me stay here;' and I said, 'Why?' and he said, 'Because I don't pay rent and give them all the money and pay all the bills;' and I said, 'Why don't you take your wife out and get a house of your own?' and he said, 'Well; I have tried to get her to do so, but she won't do it.' "

Lon Williams testified that on the Sunday preceding the date of the homicide the plaintiff in error asked him if he knew of his wife going with another man, and said, "Well; I have heard that she did, and if I was to catch them I would kill them both."

Harve Donahue testified that about a week before the homicide he was at the home of the plaintiff in error, and that the latter was sharpening a long-bladed knife; that the plaintiff in error looked "mean"; and that he asked the plaintiff in error why he was sharpening the knife, to which the latter replied, "I am going to kill up somebody."

John Easterly testified that about a month before the homicide the plaintiff in error talked to him about his wife and a possible lover, and said, "If I ever find them together I am going to kill both of them; I love her, and I ain't going to stand for it."

On the day of the homicide the deceased left her home about 4 p. m. with her two sisters,

Jennie Cotton and Minnie Simpson, aged 20 and 16, respectively. She said she was going to her Uncle Frank's, and the plaintiff in error, who was sitting in the room, was not invited to go. After the party left the plaintiff in error talked about his wife to his mother-in-law, and stated that he was "stirred up" because he could not get his wife everything he wanted to, and the mother-in-law then proceeded to urge him to get a job and go to work. The plaintiff in error left with the statement that he was going over to "Uncle Frank's."

The two sisters of the deceased testified that they went to "Uncle Frank's" and remained there awhile, and then went to a park for negroes in that section in the city of Knoxville; that they passed the home of Lon Williams, and Jennie Cotton asked Williams to go to the park with her which he did; that Williams and Jennie Cotton sat in a swing in the park; and that the deceased and Minnie were sitting on a bench on the other side of the park. Minnie testified that while she and the deceased were sitting together, with no one else present, the plaintiff in error came up and called his wife to him; that they started off together, and Minnie asked the deceased where she was going; that she replied she was going home but would be back, and thereupon Minnie went across the park to inform Jennie Cotton what had occurred. ...