McBee v. State

Decision Date11 September 1963
Citation372 S.W.2d 173,17 McCanless 15,213 Tenn. 15
Parties, 213 Tenn. 15 William McBEE, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
CourtTennessee Supreme Court

W. E. Badgett, Knoxville, for plaintiff in error.

George F. McCanless, Atty. Gen., Lyle Reid, Asst. Atty. Gen., Nashville, for the State.

WHITE, Justice.

William McBee, plaintiff in error, defendant, was indicted for the homicide of George Stewart. He was convicted of murder in the second degree and sentenced to serve not less than ten years nor more than twenty years in the state penitentiary. His motion for a new trial having been overruled and the verdict of the jury approved by the trial judge, he has perfected his appeal to this Court and assigns errors.

This is the second time that this defendant has been tried for the same offense. His first trial resulted in a conviction for first degree murder and his punishment fixed at life imprisonment. Upon his appeal to this Court the sentence was affirmed in an opinion written for the Court by Mr. Justice (now Chief Justice) Hamilton S. Burnett, under date of June 10, 1955. A petition for the writ of certiorari was filed with the Supreme Court of the United States, but upon consideration thereof the same was denied.

Thereafter, McBee filed a petition for the writ of habeas corpus in the Federal District Court for the Middle District of Tennessee on the ground that he had not been given sufficient time in which to employ counsel to represent him on the trial of the case. The district court held that McBee had failed to carry the burden of proving that his failure to employ counsel until shortly before trial was due to mistake rather than conscious intent or neglect on his part.

The Sixth Circuit Court of Appeals reversed the district court and granted the petition for habeas corpus on the ground that the district judge should have found as a fact that the failure to employ counsel was due to a mistake rather than a conscious waiver of his right and, therefore, that defendant was denied due process under the Fourteenth Amendment when the state trial judge refused to grant his counsel a continuance in order to afford him an opportunity to investigate and prepare what he considered to be an adequate defense. McBee v. Bomar, 296 F.2d 235 (6th Cir. 1961).

The court of appeals found that the defendant was prejudiced by lack of time for preparation and it cited the damaging testimony of the witness Felton Farmer, and the wife of the deceased. The court called attention to the fact that the wife gave an affidavit after the first trial was over in which she contradicted her former testimony. They concluded that said counsel might well have been able to shake her testimony if given the time to prepare and consult with witnesses prior to the trial. The same witness gave another affidavit repudiating the one given shortly after the trial. The court of appeals apparently considered only the first affidavit in reaching its decision. 296 F.2d at 235. Finally the court of appeals reversed the district court and remanded the case with instructions to release the defendant unless the State desired to try him again. The State elected to try him, resulting in the verdict of the jury aforesaid.

The defendant has made thirteen assignments of error which we shall dispose of in this opinion.

The first two assignments are to the effect that the verdict of the jury is contrary to the evidence and that the evidence preponderates against the verdict and in favor of the innocence of the defendants.

It is well-settled in this State that a conviction in a criminal case will not be reversed on the facts unless it is shown that the evidence preponderates against the verdict and in favor of the innocence of the accused. White v. State, 210 Tenn. 78, 84, 356 S.W.2d 411, 414 (1962).

It is also well-settled in this State that the verdict of the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflict in favor of the theory of the State. Such verdict also removes the presumption of innocence of the accused and raises a presumption of his guilt and puts upon him, here, the burden of showing that the evidence preponderates against the verdict and in favor of his innocence. See White v. State, supra; Holt v. State, 210 Tenn. 188, 357 S.W.2d 57 (1962); Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385 (1960); Turner v. State, 188 Tenn. 312, 219 S.W.2d 188 (1949); Batey v. State, 191 Tenn. 592, 235 S.W.2d 591 (1950); Mahon v. State, 127 Tenn. 535, 156 S.W. 458 (1913); Cooper v. State, 123 Tenn. 37, 138 S.W. 826 (1909).

In reviewing the record on appeal from a conviction it is the law of this State 'that the credibility of the witnesses and the conflicts in their testimony have been settled by the verdict of the jury which has been approved by the trial court.' Holt v. State, supra, 210 Tenn. at 198, 357 S.W.2d at 62.

A careful search of this record reveals that the deceased, George Stewart, left his apartment late at night and went downstairs to defendant's apartment and asked that the occupants thereof turn down the volume on a radio. In simple language he was told 'to go to hell'. The deceased returned to his apartment immediately. Shortly thereafter, as he prepared to go to bed, a knock was heard on the door and the defendant and two other men entered the room. The defendant told the victim 'Nigger, you can't tell me when to play my radio and when not to play it. Don't you believe I will kill you?', and the victim answered: 'William (emphasis supplied) I didn't mean any harm at all.' To which the defendant responded: 'Nigger, don't you believe I will kill you?' And, again, the deceased apologetically remonstrated, 'I didn't mean a bit of harm in the world.'

The wife of the deceased, Alma Stewart, then added: 'Mister, he didn't mean any harm.' And the defendant responded to her: 'You had better stay out of it.' At this point the defendant, without further conversation or provocation, shot the victim one time through the back killing him almost instantly. The three men then departed without the other two having spoken a word.

As aforesaid, the defendant was convicted on the first trial of first degree murder. He submitted affidavits to the effect that he had made a mistake as to the date set for his first trial and although he had several months to prepare his case, he had not hired a lawyer to defend him because he was busy looking for one Coleman Thompson, who he claimed did the actual killing.

The record shows that the homicide occurred on the night of March 24, 1954. The defendant was indicted for first degree murder on April 9, 1954. The case was set for trial on June 18, 1954, and a notice to this effect was placed upon the regular bulletin board maintained by the court for such purpose.

Therefore, the defendant had from April 9, 1954 until the date of the trial on June 18, 1954 to obtain counsel to represent him in this case. As a matter of fact, he was arrested upon the charge of murder shortly after the death of George Stewart on the night of March 24, 1954, and appeared in the City Court of the City of Knoxville on March 26, 1954, at which time he was represented by a lawyer of his own selection by the name of Duncan or Taylor, or probably both.

In his motion for a new trial he made an affidavit stating that he had newly discovered evidence in the form of the testimony of one Kingpure McClendon, who would testify that he saw the defendant leave the room before the shot was fired. He complained that he had been denied due process because his counsel had not had sufficient time to prepare his defense. He claimed that he had seen the posted notice about the date of the trial, but that he thought the date was July 18, instead of June 18, 1954.

Be that as it may, the court of appeals reversed the action of the trial court and the case has now been tried for the second time.

In the interim, two of the witnesses for the State have died. However, their testimony was preserved in the record of the first trial.

Upon the second trial the defendant did not testify and only one witness was used by the defendant and his testimony was effectively impeached as found by the jury.

The newly discovered evidence of McClendon, etc., was not used. Coleman Thompson was not produced or accounted for, nor was any proof actually offered that he ever existed.

The witness William Johnson, appearing for the defendant, stated that he was across the street when the shot was fired, but as he entered the hallway of the apartment where the deceased and the defendant were living in order to get a drink of whiskey, he saw two men, neither of whom he recognized, pass him in the hall.

On cross-examination he was involved in inconsistencies with his testimony at the first trial. Further, he admitted giving a signed statement to police officers shortly after the shooting in which he stated:

Q. 'My name is William Johnson, I live at 923 Nelson Street, and I am employed at C. M. McClung Company.' Was that correct?

A. That's correct.

Q. 'On Tuesday night, March 23rd, 1954 I was at the apartment of William McBee, 627 1/2 East Vine. My wife, Lucile, and Marie McBee and William were there.'

A. That's right.

Q. 'William was on the bed and he was drinking heavy.'

A. That's right.

Q. 'Me and my wife Lucile left about midnight to go home.'

A. That's right.

Q. 'I found that I was out of cigarettes and went to Brown's Barbecue to get some.'

A. That's right.

Q. 'As I came out on the street, I saw William McBee and Felton Farmer go into the hallway at 627 East Vine.'

A. I don't remember nothing about that.

Q. Now you didn't say that, is that what you are telling us now?

A. I don't remember that.

Q. 'I thought they were going in there to get a drink of whiskey and I followed them. Just before I got to the door I heard a pistol fire. William and Felton came out. I went on in and...

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