Letner v. State

• Decision Date: 21 November 1927
• Citation: 299 S.W. 1049,156 Tenn. 68
• Parties: LETNER v. STATE.
• Court: Tennessee Supreme Court

299 S.W. 1049

156 Tenn. 68

LETNER v. STATE.

Supreme Court of Tennessee.

November 21, 1927

Appeal from Circuit Court, Morgan County; W. H. Buttram, Judge.

Will Letner was convicted of involuntary manslaughter, and he appeals. Judgment modified and affirmed.

W. Y Boswell, of Oakdale, for plaintiff in error.

The Attorney General, for the State.

McKINNEY J.

Plaintiff in error, referred to herein as the defendant, was indicted for the murder of Alfred Johnson. The jury found him guilty of involuntary manslaughter, and fixed his punishment at two years in the penitentiary.

Alfred Johnson, 19 years of age, his older brother, Walter Johnson and Jesse Letner, 17 years of age, half-brother of the defendant, were crossing Emory river in a boat from the west to the east side, at a point known as "Devil's Race Track," this being a dangerous place, of unknown depth where the water circles and eddies continuously. When in the middle of the river some man on the high bluff above the west bank shot into the water about six feet east of the boat which caused the water to splash up. A second shot was fired, which hit the water nearer the boat; thereupon Walter Johnson, who was steering the boat, jumped out of same into the river, resulting in its being capsized, and Alfred and Walter were drowned.

The only question of fact is, Were either of these shots fired by defendant? He did not testify, and offered no evidence in his behalf.

Before the accident, defendant met Langley on the east side of the river, and asked if he had seen his brother, Jesse. Langley replied that Alfred Johnson came down to the river and whistled three times, and that two boys came down to the river, got in a boat, and carried him across. Defendant stated that, if he found them, he would fix them; that they had been stealing his chickens, and had broken into his house and stolen his gun. Langley further testified that defendant crossed the river, and some time thereafter returned with a shotgun, and stated that he had "sunk the boat," or "the boat was sunk." Langley further said that he thought the defendant had a pistol when he came back.

Ferguson testified that the defendant told him that the boys were drowned, and asked him what to do about it, and stated that he fired one shot, but not at the boys, just to frighten them, and the boat turned over.

Phillips testified that on the day of the accident defendant told him about it, and said he fired a shot, but not at them; that later he came back, and asked him not to say anything about what he had told him, as Judge Boswell had told him to keep his mouth shut.

Wilds testified to seeing two men with guns on the bluff where the boys were drowned, and heard some shots, but was too far away to identify the men.

The state introduced Jesse Letner, who detailed the transaction, and testified that, while he could not identify the man on the bluff who was doing the shooting, he knows it was not his brother. This witness further stated that, after getting out of the river on the east side, he started up the river, and, after going about 200 feet, he met his brother with a shotgun in his hand. Letner admitted that he told the jury on his direct examination that it was so far that he could not tell who it was that fired the shots. Witness also testified that he and the Johnson boys had stolen his brother's pistol, and had it when the boat turned over; that he and the Johnson boys were hiding out on the west side of the river under the bluff; that they ate and slept there, and had been there for some time; that they were hiding because there were several state warrants out for them.

We find from a preponderance of the testimony that the shots were fired by the defendant.

Error is assigned on the failure of the trial court to quash the indictment.

There is no minute entry showing that the motion to quash was ever called to the attention of the court, or action had on same, in the absence of which it will be presumed that the motion to quash was waived. Furthermore, this matter was not made the basis of a motion for a new trial.

It is also assigned for error that the court improperly charged the jury as follows:

"If you should believe from the evidence, and that beyond a reasonable doubt, that this defendant saw the deceased and other boys in a canoe or boat, and shot into the river near them without any purpose of hitting the deceased, but to play a prank on the deceased, and if the deceased became frightened and jumped into the river and was downed, then, in that event, the defendant would be guilty of involuntary manslaughter."

This was a correct statement of the law, but was inaccurate so far as the facts of this case are concerned. The uncontroverted testimony shows that deceased did not jump out of the boat, but that his brother, Walter, jumped out, and, in doing so, capsized the boat and precipitated the deceased into the water. No criticism, however, is made with respect to this feature of the charge.

The act of the defendant, whether he was shooting to kill or only to frighten these boys, was an unlawful one, and comes within the universal rule that every person will be held to contemplate and be responsible for the natural consequences of his own act; but he will not be held criminally responsible for a homicide, unless his act can be said to be the cause of death.

When a person unintentionally or accidentally kills another, while engaged in an unlawful act, the authorities all hold that he is guilty of some degree of homicide.

In this case, if defendant had accidentally struck the deceased, causing his death, or had capsized the boat, and deceased had drowned, unquestionably he would have been guilty of some grade of homicide. We will cite a few cases to illustrate the principle.

In State v. Radford, 56 Kan. 591, 44 P. 19, it was held that a defendant who willfully and forcibly seizes a boy against his will and protest, and carries him out into a river where the water is deep, whereby he is drowned, is guilty of manslaughter.

In Adams v. People, 109 Ill. 444, 50 Am. Rep. 617, one was held to be guilty of murder who compelled another to jump from a moving train.

In Norman v. U. S., 20 App. D. C. 494, where it appeared that defendant, in attempting to make a violent attack upon the deceased, caused her to believe that her life was in danger, and, so believing, she inadvertently fell into a canal, and was drowned, defendant was held guilty of murder.

In Rex v. Evans, referred to in 3 Russell on Crimes (6th Ed.) p. 12, the prisoner, after beating his wife, threatened to throw her out of the window, and she was so terrified that she threw herself out of the window and was killed. The judges were all of the opinion that, if she acted upon a well-grounded apprehension of his doing such further violence as would endanger her life, the prisoner was answerable for the consequences of the fall as much as if he had thrown her out of the window himself.

In Reg. v. Pitts, Car. & M. 284, it was said that the defendant was guilty of murder if, because of a well-grounded apprehension of immediate violence occasioned by defendant's guilty act, the deceased threw himself into a river and was drowned.

In Studstill v. State, 7 Ga. 2, defendant was held guilty of murder where he shot at deceased, not believing that the gun would carry so far.

In Rex v. Sullivan, 7 Car. & P. 641, a lad was held to be guilty of manslaughter where, in a frolic, without meaning harm to any one, he took the trapstick out of the forepart of a cart, in consequence of which it was upset, and the carman, who was in it, putting in a sack of potatoes, was thrown backward on some stones and killed.

Many other cases could be cited to the same effect.

It is sought to differentiate the foregoing cases from the one here involved upon the theory that the death of deceased was due to an intervening cause, viz. the capsizing of the boat by the brother of deceased.

The rule invoked is thus stated in 13 R. C. L. 750:

"Where it appears that the act of the accused was not the proximate cause of the death of the person for whose murder he is being prosecuted, but that another cause intervened, with which he was in no way connected, and but for which death would not have occurred, such supervening cause is a good defense to the charge of homicide."

But on page 753 it is said:

"Whenever an independent responsible person, disconnected with the defendant, causes some intervening act to be done, the defendant is relieved of responsibility for the consequences thereof, unless the act of intervention is the natural result of the defendant's act." The same exception to the rule is thus stated in 29 C.J. 1078:

"The unlawful act or omission need not be the sole cause of the death. Thus if defendant's negligence was a cause of the death, it is immaterial that the negligence of the deceased himself or of others

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