McDonald v. State

Decision Date11 March 1974
Citation512 S.W.2d 636
PartiesGentry Eugene McDONALD, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
CourtTennessee Court of Criminal Appeals

McKenzie & McKenzie, Dayton, for plaintiff-in-error.

David M. Pack, Atty. Gen., Phillip W. Brooks, Asst. Atty. Gen., Nashville, J. William Pope, Jr., Dist. Atty. Gen., Pikeville, for defendant-in-error.

OPINION

OLIVER, Judge.

Represented by retained trial counsel, McDonald was convicted on June 22, 1972 in the Circuit Court of Rhea County of assault with intent to commit a felony and was sentenced to not less than one nor more than five years in the penitentiary (TCA § 39--603), under an indictment returned April 5, 1971 charging him with carnal knowledge of Joyce McDonald, a female under 12 years of age (TCA § 39--3705) in February of that year. The trial court found the defendant indigent after overruling his motion for a new trial and appointed the same attorneys to represent him in his appeal in the nature of a writ of error to this Court.

Although the trial judge did not sign the Bill of Exceptions until 29 days after expiration of the 90 days allowed therefor when the new trial motion was overruled, it was properly filed with the trial court clerk within the 90 days. TCA § 27--110.

By his first, second and sixth Assignments of Error, the defendant challenges the validity of the verdict upon the usual ground that the evidence preponderates against it and in favor of his innocence. As the Supreme Court of this State and this Court have said so often, in considering this contention we must adhere to the rule that the jury's verdict of guilt, approved by the trial judge, strips the defendant of the presumption of innocence and he stands before this Court presumed to be guilty and has the burden here of demonstrating that the evidence preponderates against the verdict and in favor of his innocence; that the verdict so approved accredits the testimony of the prosecution witnesses and establishes the State's theory of the case; that we may review the evidence only to determine whether it preponderates against the verdict, and in doing so we are required to take the verdict as having established the credibility of the State's witnesses; and that the verdict may not be overturned on the facts unless the evidence clearly preponderates against it. Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768; Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799; Chadwick v. State, 1 Tenn.Cr.App. 72, 429 S.W.2d 135.

We shall summarize the material evidence as briefly as is consistent with a clear presentation of the salient facts.

The defendant's daughter Joyce McDonald testified that in January and February of 1971 she and her brother and sisters were living with the defendant at the home of their paternal grandmother, and that she was eight years old at that time; that the custody of the children had been awarded to the defendant following a divorce after the court found their mother to be unfit; that one day in February, while she was playing cards with a younger sister, the defendant, who appeared to have been drinking, came into the house and lay down on the sofa and motioned to her with his eyes; that when she shook her head the defendant pointed his finger at her, indicating that she was to go into the bedroom; that she went into the bedroom and the defendant came in and closed the door; that they removed their clothes and the defendant made her lie down on the bed, got on top of her and had sexual relations with her; that she did not cry or scream because she was afraid of her father; that after they dressed she went back into the living room; that the same or next day she went to the home of her maternal grandmother who questioned the condition of her undergarments and she divulged what had happened; that at the time of the episode in the bedroom, her paternal grandmother was in the living room but she did not tell her about it because she was afraid of what the defendant would do to her if she did so; and that he had sexual relations with her four or five times but she did not know how far he penetrated her.

Anna McDonald, one of the defendant's daughters, who was almost 14 at the time of the trial (June 22, 1972) testified that while watching the television she saw the defendant and Joyce go into the bedroom; that her other sisters and her brother and Grandmother McDonald were there; that the defendant was 'kindly drunk'; that she continued to watch TV for a little while and 'I prayed to the Lord' and then went into her father's bedroom and saw him and Joyce under the cover and saw movement and ran back into the living room when her father's arm came out from under the cover; that Joyce, appearing upset, later came into the living room; that one time she saw Joyce come out of the bedroom crying and that her father said Joyce was sick, but she did not believe his statement to be true.

Mrs. Della Gilliam, the children's maternal grandmother, testified that occasionally they visited her on week-ends; that on February 6, 1971 the defendant brought the children's clothes for her to wash; that she found a bloody discharge on a pair of panties and learned that they belonged to Joyce and asked Joyce whether her father or her brother did this to her and she replied it was her father; that the next night she took Joyce to a doctor and he said she was swollen too much for an examination and she and Joyce's mother took her back to the doctor the next day.

Doctor Ernest Foresten, who examined Joyce on February 7, 1971, testified that she had gonorrhea with gross swelling of the vagina; that the hymen was not broken; that, at the minimum, swelling would occur with 24 to 48 hours after contact with an infected person, although the usual period was 12 to 14 days; that gonorrhea is usually transmitted by sexual contact, but can possibly be transmitted by other means; that the body can cure itself of gonorrhea, but it generally takes two weeks for this to occur; that it would be impossible to determine if there had been slight penetration; that it would be impossible for the vagina of an eight-year-old girl to accept full penetration of an average male organ, but that a male organ could contact the vagina of a small girl without complete injection into the vaginal canal without causing any break or puncture; and that he examined the defendant about two weeks after examining Joyce and he did not have gonorrhea.

Mrs. Alice McDonald, the defendant's mother, testified as the first defense witness that after his divorce his ex-wife had custody of the children but their custody was later awarded to him and he and the children lived at her house; that he was not drinking when he returned home on February 5; that she closely supervised the children and never saw the defendant in bed with Joyce; that they never complained about the way the defendant treated them; that there was no way the defendant could have had his daughters in bed with him without her knowing it; that the children were not in her home on February 6th, the date charged in the indictment. She testified that while the defendant was in jail she asked the sheriff on three or four different days to have him examined for gonorrhea, and that he was examined after he had been in jail about 12 days when his attorney requested such an examination.

Wesley McDonald, the defendant's 15-year-old son, testified as a defense witness that his father did not take any of his sisters into the bedroom and his parental grandmother supervised the girls closely; that he and the girls occasionally spent the week-end with their maternal grandmother and sometimes their mother and two other women were there also; that the girls slept with their mother and the other women; that he heard his maternal grandmother and his mother talking about getting rid of the defendant; that he had previously testified at the preliminary hearing (1) that Joyce and their sister Jamie were playing cards and Joyce was scratching herself and the defendant made her go into the bedroom; (2) that he went around the house, looked into the window and saw the defendant talking with Joyce; (3) that...

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10 cases
  • State v. Collins, No. E2004-01133-CCA-R3-CD (TN 7/29/2005)
    • United States
    • Tennessee Supreme Court
    • July 29, 2005
    ...the greater offense charged, the defendant cannot complain of the jury finding him guilty of the lesser offense." McDonald v. State, 512 S.W.2d 636, 640 (Tenn. Crim. App. 1974); see also State v. Carrie Ann Brewster and William Justin Brewster, No. E2004-00533-CCA-R3-CD, 2005 WL 762604, at ......
  • State v. Brewster, No. E2004-00533-CCA-R3-CD (TN 4/5/2005)
    • United States
    • Tennessee Supreme Court
    • April 5, 2005
    ...the greater offense charged, the defendant cannot complain of the jury finding him guilty of the lesser offense." McDonald v. State, 512 S.W.2d 636, 640 (Tenn. Crim. App. 1974). Therefore, we conclude that the evidence supports each and every conviction of both II. Suppression of Statements......
  • State v. Brewster, No. E2004-00533-CCA-R3-CD (TN 3/24/2005)
    • United States
    • Tennessee Supreme Court
    • March 24, 2005
    ...the greater offense charged, the defendant cannot complain of the jury finding him guilty of the lesser offense." McDonald v. State, 512 S.W.2d 636, 640 (Tenn. Crim. App. 1974). Therefore, we conclude that the evidence supports each and every conviction of both II. Suppression of Statements......
  • State v. Holt
    • United States
    • Tennessee Court of Criminal Appeals
    • March 13, 2012
    ...conviction for the greater offense of statutory rape by an authority figure in the case involving J.M. SeePage 22McDonald v. State, 512 S.W.2d 636, 640 (Tenn. Crim. App. 1974) (holding that "the defendant cannot complain of the jury finding him guilty of the lesser offense" if the evidence ......
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