Messer v. State

• Decision Date: 11 December 1964
• Citation: 215 Tenn. 248,385 S.W.2d 98,19 McCanless 248
• Parties: G. B. MESSER, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. 19 McCanless 248, 215 Tenn. 248, 385 S.W.2d 98
• Court: Tennessee Supreme Court

Page 98

385 S.W.2d 98

G. B. MESSER, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

19 McCanless 248, 215 Tenn. 248, 385 S.W.2d 98

Supreme Court of Tennessee.

Dec. 11, 1964.

Porter & Porter, Edward F. Hurd, Newport, for plaintiff in error.

George F. McCanless, Atty. Gen., Edgar P. Calhoun, Asst. Atty. Gen., Nashville, for defendant in error.

HOLMES, Justice.

The plaintiff in error, G. B. Messer, hereinafter referred to as defendant, was convicted or murder in the second degree. He was sentenced to serve not less than ten years nor more than ten years in the State Penitentiary.

It is uncontroverted that on the night of January 9, 1962 the defendant shot and killed one Bill Ball. The shooting occurred in the defendant's home, in which Ball together with his wife and two children were then living. Mrs. Ball had been raised by the defendant and his wife. At the time of the trial the defendant was 82 years of age. The deceased was 43 years of age when he was killed. It is the contention of the defendant that he acted in his own necessary self defense in shooting and killing the deceased.

In overruling the motion for new trial, one of the grounds of which was that the verdict of the jury was contrary to the weight of the evidence, the Trial Judge made a rather lengthy statement, in part, as follows:

'I gave the defendant a fair trial. I didn't want him turned loose and I didn't want him acquitted if he was guilty. On the other hand, I wanted to see that he got a fair trial and he did get a fair trial inasfar as the court was concerned. Mr. Messer is the kind of man that in my opinion would have told the truth as he saw it and under the circumstances had be even known it would have sent him to the penitentiary. That is the feeling that I have for Mr. Messer and I have no doubt but that every word that he said was true as he saw it and as he understood it, however, it says here that he couldn't hear good and he did make a very bad witness and a very bad impression on the jury and too on the court. That's probably due to his inability to hear in part and so anxious about the matter, but there is proof in the record that would justify a conviction. In criminal cases when they go to the Supreme Court, of course it is going to have to show that the evidence preponderates against the verdict. I am up against a proposition here and I may get criticism from the Supreme Court. I had a case a few years ago that went from this county where a jury had convicted a man of second degree murder and when I said upon the motion for new trial that it was not second degree murder but came squarely within the definition of voluntary manslaughter but I had no authority to reduce the charge from second degree murder to voluntary manslaughter. It went to the Supreme Court and the Supreme Court did just that. In this case that he has now set out as grounds in the motion that he could not be guilty under any proof of any degree of homicide greater or higher than that of voluntary manslaughter. A trial court is up against the proposition, this proposition in that I have either got to grant a new trial or I have got to let it go. If I think it is not second degree murder but voluntary manslaughter, I have either got to do that or got to let the defendant pay the expenses of going to the Supreme Court and letting the Supreme Court modify it or reverse it. I am going to give the Supreme Court the opportunity to criticize me for somewhat taking the position that Pilate took Two Thousand (2000) years ago and saying all right, the jury said that it was second degree murder. I am going to let it go up there and see what the Supreme Court says about me and the jury, about both of us.'

In his remarks overruling motion for new trial, the Trial Judge further stated:

'Mr. Messer made one statement that was bad, when he admitted that he was mad and his lawyer...