Monts v. State

• Citation: 22 McCanless 31,400 S.W.2d 722,218 Tenn. 31
• Parties: , 218 Tenn. 31 Henry Clay MONTS and Johnnie West, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.
• Decision Date: 02 March 1966
• Court: Supreme Court of Tennessee

Page 722

400 S.W.2d 722

22 McCanless 31, 218 Tenn. 31

Henry Clay MONTS and Johnnie West, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.

Supreme Court of Tennessee.

March 2, 1966.

Hugh Stanton, Public Defender, Memphis, for Johnnie West.

Robert A. Tillman, Asst. Public Defender, Memphis, for Henry Clay Monts.

George F. McCanless, Atty. Gen., and Thomas E. Fox, Asst. Atty. Gen., Nashville, for defendant-in-error.

WHITE, Justice.

Henry Clay Monts and Johnnie West, plaintiffs in error here, were indicted, tried and convicted for murder in the first degree in the perpetration of a burglary, and were sentenced to serve 150 years each in the State Penitentiary. Their motion for a new trial having been overruled, they have appealed and have assigned errors in one joint brief filed on their behalf by the Public Defender of Shelby County, the Honorable Hugh Stanton, appearing on behalf of West, and by his Assistant, the Honorable Robert A. Tillman, appearing as counsel for Monts.

At the outset, we observe that these cases have been before this Court on a prior occasion and were reversed because of the failure of the trial judge to instruct on the law of circumstantial evidence as requested by counsel for Monts and West. The decision is in 214 Tenn. 171, 379 S.W.2d 34 (1964). In that case these plaintiffs in error were found guilty and their punishment fixed at death by electrocution. A third defendant in that case, Joel Olds did not appeal his conviction and sentence to serve 99 years in the State Penitentiary. Olds confessed his guilt and implicated his co-defendants, West and Monts, as principals in the burglary and the murder hereinafter detailed. The confession of Monts was admitted in the prior trial and also in this trial over objection of counsel. Upon the facts appearing in that record, we held the confession of Monts admissible in evidence. Monts et al. v. State, supra.

The first assignment of error here is in three parts: (1) there is no evidence to sustain the verdict of the jury; (2) the verdict of the jury is contrary to the law and the evidence; and (3) the evidence preponderates against the verdict of the jury.

In considering this assignment, we do so upon the well established law of 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, and the burden is upon the plaintiff in error to make this showing. Stated another way, the presumption of innocence disappears upon conviction in the lower court and is displaced by a presumption of guilt, and it is with this presumption that we consider the case on appeal. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963); White v. State, 210 Tenn. 78, 84, 356 S.W.2d 411, 414 (1962), and many other cases.

Assignment of error number two is that the court erred in refusing to sustain the petition to sever and grant the defendants a separate trial.

Assignment of error number three is that the court erred in permitting the statement alleged to have been given by Henry Clay Monts to Inspector E. C. Swann, to be introduced in evidence.

The said statement was highly prejudicial both to the defendant, Henry Clay Monts, and to the defendant, Johnnie West; the admission of same was a fatal error, and, therefore, the verdict of the jury should be set aside.

Assignment of error number four complains of the action of the court in admitting the testimony of the witness, Granville Allison, over the objection of the defendants.

Assignment of error number five is that the court erred in admitting the testimony of the witness, Dennis Mallick, over the objection of the defendants.

The final assignment of error, number six, is that the court erred in failing to charge the jury specifically that unless the jury was convinced of the voluntariness of the confession of the defendant Monts, beyond a reasonable doubt, then the jury should not consider the confession of the defendant Monts for any purpose whatsoever.

As indicated above, we have re-read our prior opinion delivered when this case was before us on the earlier appeal and we find that the facts presented to the jury in that case and in the present case are substantially the same except for the absence of the testimony of one Clarence McCord, who shared a cell in the Shelby County Jail with the Defendant West and he gave certain testimony against West which is not now present in the record and, therefore, we give it no consideration.

The facts appearing in this record are fairly set forth in the briefs filed on behalf of the plaintiffs in error and the State. From these briefs, together with the record, it appears that James M. Toombs called the Memphis Police Department at about 12:50 o'clock, A.M., on October 7 1960 and reported that a burglary was being committed at or in Ace Sundry Store on the southeast corner of Orleans and McLemore Avenues, in that city. Within a few minutes thereafter, Memphis Police Squad Car No. 25 containing Officers Bruno and Pierini arrived on the scene. Toombs informed them that glass had been broken and suspicious noises had come from Ace Sundry Store.

Officer Bruno proceeded immediately to investigate the cause of the disturbance and entered the Sundry Store through a broken glass opening in the front door. Officer Pierini continued to get detailed information from the witness Toombs, but when they heard two shots fired from in or near the store and saw a man fleeing from the store south on Orleans Avenue, Pierini and the witness hastened to the store where they found Officer Frank Bruno lying on a terrace with his legs and feet on the sidewalk. His flashlight and pistol were on the sidewalk nearby. He was badly wounded and could make no statement. Mr. Bruno died at the Methodist Hospital while supreme efforts were being made to preserve his life.

Officer Pierini reported to the Police Dispatcher that Officer Bruno had been shot and immediately thereafter squad cars were dispatched to the area and a careful search was made of the premises, that is, the Ace Sundry Store, and the surrounding area for suspects. None were found.

The defendant, West, was arrested at 7:30 o'clock, P.M., October 8, 1960, on a complaint filed by a taxi driver that he had refused to pay his bill of $2.75, when West contended that the fare should have been only $1.25. When the taxi driver threatened to call the police West told him to do so and that they would wait for their arrival. West was drunk at the time and on the way to the police station he told a policeman that he had something on his mind that would put him away for a long time if it was known.

He was then questioned at the station about the Bruno killing, but was released subject to the action of the City Court for disorderly conduct and for public drunkenness. He was fined on both charges and sent to the County Workhouse, where he arrived on October 11, 1960, and stayed until his fine was worked out or paid.

The plaintiff in error, Henry Clay Monts, was arrested October 11, 1960 and questioned by the police about the killing of Officer Bruno. He was released on the same day of his arrest.

On September 22, 1962, West was again arrested at the State Penitentiary in Nashville where he was serving a sentence for conviction on a charge of robbery. He was transported to Memphis on the evening of September 22, 1962, and was questioned in the Homicide Office of the Police Department. On the trip from Nashville to Memphis West stated that he could not have been involved in the Bruno killing because he was at that time serving a sentence in Shelby County. This was false according to the official records.

Prior to the return of West to Memphis, one Joel Farris Olds, together with three women, Trudy Carroll, Mildred Barber, and Christine Clark had given statements to the Police about the killing of Officer Bruno and implicated West.

After the arrival of West in Memphis, Inspector E. C. Swann played a taped recording of the statements of Olds, and the three women named, in order that West might hear what they had to say. These four parties were brought into the presence of West and made their statements in person before him. On both occasions he protested his innocence and claimed that he was being framed and that the statements made by these witnesses were false.

The record shows that Trudy Carroll served a short sentence for being an accessory after the fact of the murder of Officer Bruno. Her testimony will be referred to again in this opinion.

Christine Clark, at the time of the present trial, was confined as a mental patient in the State Institution at Bolivar, Tennessee, and, of course, did not testify.

On September 25, 1962, Monts was arrested in the City of Chicago, and after waiving extradition was brought to Memphis on September 26, 1962, arriving there at about 9:30 o'clock, P.M. Upon his arrival in the Memphis Police Department he was questioned by Inspector Swann for about three hours, and during this time the tape recordings of the voices of Olds, Trudy Carroll, Christine Clark and Mildred Barber, were played to him and he recognized their voices. It took about forty-five minutes to play these tapes all the way through and they were played several times. Monts was questioned about these statements and about his part in the burglary and the killing of Officer Bruno.

Monts admitted his participation and at about 12:45 o'clock, A.M., on September 27, 1962, a written statement was taken from him, consisting of thirteen pages. At the beginning of the first page appears this statement which Captain Swann, now Inspector Swann, said that he read to Monts:

Monts, you are under arrest and will be charged with MURDER, this charge growing out of the fatal shooting of FRANK BRUNO, Male White, who was employed by the Memphis Police Department on October 7, 1960 at...