Lester v. State
| Decision Date | 15 July 1963 |
| Citation | 370 S.W.2d 405,212 Tenn. 338,16 McCanless 338 |
| Parties | , 212 Tenn. 338 Charlie LESTER v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
O. W. McKenzie, Dayton, for plaintiff in error.
George F. McCanless, Atty. Gen., Lyle Reid, Asst. Atty. Gen. Nashville, for the State.
This is a homicide case, wherein a father was convicted of shooting his son. The sentence by the jury was that the father serve ten (10) years in the State penitentiary, from which conviction an appeal has been seasonably perfected and ably argued before the bar of this Court. After carefully reading the record, studying the authorities, etc., we now have the matter for disposition.
The following well worded paragraph from the State's brief is amply supported by the factual situation herein, which was apparently believed by the jury. The Assistant Attorney General says:
'Four members of the same family were principals in a violent episode, primed by paternal dereliction, filial resentment, brotherly affection, and precipitated by drunkenness and disobedience, which 'occurred on the mountain' in Bledsoe County, early in the night of July 9, 1961, in which Charlie Lester murdered his grown son, Quentin.'
When we had read the brief on behalf of the plaintiff in error, our mind was very much in doubt as to whether or not this conviction should be sustained. The forceful argument and marshaling of the facts on behalf of the plaintiff in error almost convinced us that the case should be reversed. After reading this brief and the State's brief, we have very carefully read the record, and after reading the record our thought has been completely reversed from the feeling that we had after reading the brief of the plaintiff in error. The reason for this is that the brief of the plaintiff in error, and the marshaling of the facts therein are summed up by the plaintiff in error almost solely and alone on the evidence as presented by the plaintiff in error himself when he took the stand in defense of the charges made against him. When we read through the evidence of the son and the daughter-in-law, both on direct and cross-examination, we are convinced that clearly the factual situation that developed made a question entirely for the jury. All defenses of the plaintiff in error are completely and sufficiently covered by this factual situation so as to clearly show that no error has been committed by the trial court against the plaintiff in error.
On Sunday, July 9, 1961, the older son, Quentin, who was the boy who was killed, and his wife Ada left the home of the plaintiff in error where they had been residing for a short time and went to church. The younger son, Glenn, a boy about sixteen years of age joined them at church. The young boy, Glenn, had been away from home since Thursday on a camping and fishing trip, and joined his brother and sister-in-law at this church. These parties stayed at the church through church services that night and arrived at the home of the plaintiff in error shortly after 9:00 p. m on the night of July 9, 1961. The jury could and did believe apparently--we are so convinced after reading this record--that when these parties arrived at the home of the plaintiff in error on this Sunday night they found him sitting at the kitchen table and apparently in a partially intoxicated condition. At least in such condition that he was rather fussy and adamant. He made certain apparently sarcastic remarks to them about staying away all day and that he had had to stay at home and work (he had been plowing a field all this Sunday) and that they had not come home in time to get him anything to eat. As a result of this Quentin, the murdered boy, made some remark to his father and his father immediately got up and jumped on Quentin physically throwing him to a couch and was in a position of apparently choking this boy when the younger boy, Glenn, picked up a shotgun, which was standing in the corner of the room, and hit his father over the head with the butt of this shotgun. The plaintiff in error takes the position that Quentin attacked him while they were both standing up, and that he was merely holding his son's hands on his breast at the time he was hit over the head by this young boy.
As soon as the boy hit the father over the head the father rolled off Quentin, and Quentin jumped up then and called his wife to get their clothes and they immediately left. The younger son ran out of the house and hid in the weeds somewhere, or in a field nearby. The deceased son and his wife then got in their truck, and after some backing started off down the road, when a shot was fired from above them and went through the glass of the truck and up through the head of Quentin, lodging in the top of the truck. Quentin then fell over on his wife, the truck still going, but it ran into the mud or a slight bank which was there, and they finally got it straightened out. She then started to drive and take her husband into Pikeville to the hospital. When they got there he was dead, having been shot in this way.
The younger boy testifies that from the place where he was hidden out in the field near the house that he saw the father go in the house and turn the light on apparently looking for a gun and then he came back out and stood at the corner of the house and fired these shots towards the truck, thus we have direct evidence that shots were fired from the corner of the house, and clearly the jury from this had direct evidence from which they could conclude that the father fired these shots. After this was done then the father went to his truck which was an older model and was sitting there near the house, too, and tried for some time to get it started (apparently the motor was out of it and in a tractor nearby). He admits on his examination he had to get the motor out of the tractor and put it in the truck, and then he got it started and, as he says, drove away. First he was going to a neighbor's who lived a mile or so from his house, and then while he was driving down the road on the way to have his wounds dressed he met the Sheriff coming up the road. The Sheriff was coming to arrest him. The cars were stopped and the plaintiff in error got out and got in the Sheriff's car. They took him to the hospital and treated his wounds and there informed him that his son had been shot and he was charged with this and they placed him in jail. This about covers the factual situation as to what happened there on this July night in 1961.
There are a number of assignments of error, which will not be taken up by us seriatim, but all will be covered in the course of this opinion. A number of the assignments relate to the facts and argue, as said in the outset hereof, very forcefully that the evidence preponderates in favor of the innocence of the plaintiff in error and against his guilt. The main insistence is to the effect that there is only circumstantial evidence before the jury and that this is not sufficient to justify a conviction. In making this contention though the plaintiff in error overlooks the direct testimony of the young son, Glenn. This witness, as said above, testified that as the deceased and his wife were driving away he heard his father call from the corner of the house, 'wait, wait', and saw the flash of this pistol or gun (the boy says it was a pistol) and its report at the same location, saw the truck run off the road, and heard deceased's wife scream. Of course, this is positive evidence of the homicide.
The next proposition of the plaintiff in error is that the State's witnesses were telling a falsehood about this and that actually the young son, Glenn, shot the deceased. The plaintiff in error on his examination does not say so but the whole gravamen of the cross-examination of the various witnesses and the innuendo atttempted to be made from the whole thing is that this boy, Glenn, thinking that it was his father who was driving off in the truck shot at his father with a .22 rifle and killed his brother. The argument likewise is made that the person who fired the shot was above the truck and was shooting at an angle down and that the bullet going through this glass ranged up to hit the head of deceased and was lodged in the top of the truck and thus would have had to come from where the boy was located down in a field rather than coming from where the father was standing above the truck. Of course, the very obvious explanation of this fact is that when the bullet struck the deceased's skull it deflected slightly so that it came to rest in the top of the truck. All these facts, about where the boy was located, where the father was located, how the truck was located, were before the jury with certain pictures of the trucks and the house and grounds, and a very careful examination and cross-examination of these witnesses as to these...
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...to require that the accused be tried in the county in which the crime has been committed." Id. at 542 (citing Lester v. State, 212 Tenn. 338, 370 S.W.2d 405 (1963); Chadwick, 201 Tenn. 57, 296 S.W.2d 857 (1956). Hence, Tennessee case law has interpreted the local vicinage requirement in our......
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