Marable v. State

• Decision Date: 09 April 1958
• Citation: 7 McCanless 440,203 Tenn. 440,313 S.W.2d 451
• Parties: Eva Parham MARABLE v. STATE of Tennessee. 7 McCanless 440, 203 Tenn. 440, 313 S.W.2d 451
• Court: Tennessee Supreme Court

Page 451

313 S.W.2d 451

Eva Parham MARABLE v. STATE of Tennessee.

7 McCanless 440, 203 Tenn. 440, 313 S.W.2d 451

Supreme Court of Tennessee.

April 9, 1958.

H. Frank Taylor, J. P. Buchanan, Carl R. Hardin and Albert Williams, Nashville, for plaintiff in error.

Thomas H. Fox, Asst. Atty. Gen., for the State.

BURNETT, Justice.

Mrs. Marable was convicted of murder in the second degree for the slaying of her husband, William C. Marable, Sr., and and for this crime the jury fixed her punishment at not more than 20 years in the State Penitentiary.

In working this case we read the record which consists of approximately 1000 pages, including arguments of counsel and the charge of the court, before reading the briefs and assignments of error and reply thereto. In our experience on the bench it has not been our pleasure to have found two better briefs in any case. For the plaintiff in error and the State both, the statements of fact, the arguments and citations of law are an example that could well be followed in the preparation of any brief and assignments and reply thereto.

This case depends entirely upon circumstantial evidence to establish both the corpus delicti and the criminal agency of the accused. Though there are a number of assignments of error, all of which will be considered herein, the main argument before us was on the question of whether or not this evidence did establish the corpus delicti and the criminal agency.

There is no real dispute as to the factual situation which is shown and both sides, to all intents and purposes, agree as to what these facts were.

The plaintiff in error was the wife of the deceased. They had been married a little less than a year at the time of the death of deceased and lived in his home which was located on Dickerson Road outside of the City Limits of the City of Nashville, Tennessee.

On Sunday afternoon of June 17, 1956, two sisters of the deceased visited in this home with Mr. and Mrs. Marable. At the time of this visitation both Mr. and Mrs. Marable were wearing summer clothes, he with Bermuda shorts and she with as little as she could to be decent. As said this visitation was on June 17, 1956. The following Thursday, June 21, 1956, his body was found in this home. On the date of this last visitation by these sisters, everything was peaceful and happy and it was shown that Mr. Marable, the deceased, enjoyed life and had a zest for living. He was not morbid or moody. Nor as far as the record shows had any disposition to contemplate suicide.

After this Sunday afternoon the deceased was not seen alive again. One or two witnesses claim that they saw him in a car on Wednesday before his body was found. One witness on the motion for new trial also claims this. After this Sunday, June 17, visitation, several efforts were made by the sisters of the deceased to talk to him between Monday evening of June 18, and the evening of June 21. Some of these were made in the daytime and some as late as 10:00 o'clock at night. They say that the phone rang but there was no response. On Tuesday, June 19, the defendant called these sisters.

In the conversation with these sisters they were told by the plaintiff in error that she and their brother, the deceased, had had trouble and that she had left him; that the deceased had threatened to kill her and then kill himself; that the deceased had a knife in his had when she left him; that she had found a paper which indicated that deceased had been to a doctor and she, plaintiff in error, feared that the deceased was trying to put her in an asylum. The plaintiff in error then requested one of the sisters to go out to their home for the purpose of seeing about the deceased.

One of these sisters, Mrs. Mayo, went to the home of plaintiff in error and deceased about 5:00 o'clock on Wednesday, June 20. She knocked and called to the deceased and got no response. She looked around the house and noticed that his car was in the garage; that the blinds were pulled and that the kitchen door was open. The other two entrances to the house were closed. After talking to her husband, there, they decided that probably her brother had walked down to a grocery store. Throughout the record there is some indication that the deceased's two sisters and other relatives were careful not to interfere or push themselves into the deceased's private or personal affairs.

On Thursday evening, June 21, Mrs. Mayo, a sister of the deceased, not having heard from him or not being able to reach him on the telephone, went with her husband out to deceased's house about 7:45 o'clock in the evening. When they got there Mrs. Mayo noticed that apparently nothing had been changed since she was there the day before in reference to the blinds, the doors closed, etc. She and her husband knocked and called to the deceased and when they got no response they entered the home through the back door into the kitchen which was open as it had been on Wednesday the day before. After entering the kitchen and passing through the breakfast room into the living room, they discovered blood in the house which led them to the basement stairway door. Mr. Mayo opened this basement door a little bit and turned on the light and saw the deceased's body lying at the foot of the steps. As a result of this Mrs. Mayo went to the telephone in the living room to call for help and she found then that the cord to the receiver had been cut and that there was blood on the telephone. Mrs. Mayo then went across the street to a tourist court and called the Sheriff's office. As a result of this call investigators from that office were very shortly on the scene.

The body of the deceased was found lying on his back in a badly decomposed condition with maggots working in a wound on his throat, and in his eyes, nose and mouth. The wound varied in depth from about 1 1/2 inches on the right side of deceased's throat to just barely under the skin at the other extremity in the clavicle region of his left shoulder. The proof also shows that the deceased was a right-handed man. The jugular vein was severed by the wound. No sharp instrument was found near the deceased's body nor elsewhere in the house although the registers and apparently everything in the house was torn up trying to find the instrument that caused this wound. A bloody bath towel was near the deceased's body. Blood was found in several rooms in the house. The greater amounts appeared to be in the deceased's bedroom and near the wash basin in the bathroom. There was blood on the telephone and telephone table and it was noticed that a small rug had been placed in the door leading from the living room to the hall and bathroom, covering a part of the living room rug. This rug had been placed in that position covering the blood on the floor. There was also a small rug in the hallway which had considerably more blood on the bottom side than the top side. A copy of the Sunday Nashville newspaper and the deceased's glasses were found on the bed in his bedroom. A small amount of blood was also found on the deceased's bed with some spots on the newspaper. In the bathroom there was a towel rack immediately to the right of the wash basin.

The investigators found the plaintiff in error at the home of her daughter in Donelson, Tennessee. She was brought by one of the officers out to her and deceased's home and questioned there by the officers. They described her demeanor as being evasive and uncooperative. She asked no questions about where the deceased's body was found or about the condition of his body and stated that the deceased had been robbed. One of the officers was advised by her that she left their home, that is hers and the deceased's, on Monday afternoon after a sudden disagreement with her husband, the deceased. This disagreement resulted from the fact that the deceased had been going with another woman, according to the plaintiff in error. The plaintiff in error also told another officer that she had not seen the deceased since 10:30 A.M., on Monday, June 18. She did not show any emotion or shed a single tear. At this point it is interesting to note in reading the record that when on Monday she approached a City Detective and told her story which will hereinafter be related, she did cry once or twice. The jury could have found that this was immediately after the homicide.

There is evidence in the record, which first popped out as unsolicited from one of these investigating officers, that the plaintiff in error was asked to take a lie detector test and she said that she would not answer until she had talked with her attorney. Her attorney later advised these officers that she would not submit to such a test. After this statement was volunteered he was cross examined by plaintiff in error's counsel at length on the question of taking a lie detector test. It appears at least twice and maybe three times in the record after this, and at the conclusion of the State's proof, that the plaintiff in error moved to strike this evidence from the record. At the conclusion of the State's proof this evidence was struck.

It was found during the investigation that the plaintiff in error had been back to the deceased's home on Wednesday, June 20, the day before his body was found, after having left on Monday. She told some of the investigating officers that she went back on Wednesday to get some pills, which were in the kitchen cabinet, that she had been taking. She said at the time that she did not see her husband, the deceased, but heard the fan running and thought that she heard a door slam.

At the time one of the Highway Patrolmen went to the plaintiff in error's daughter's home for the purpose of getting the plaintiff in error to go to the home of the deceased, the daughter immediately broke down and cried and called the plaintiff in error's attorney twice. It is not clear from this record whether or not these calls were made before her mother left...