Moon v. State

• Citation: 242 S.W. 39,146 Tenn. 319
• Parties: MOON v. STATE.
• Decision Date: 24 June 1922
• Court: Supreme Court of Tennessee

242 S.W. 39

146 Tenn. 319

MOON v. STATE.

Supreme Court of Tennessee.

June 24, 1922

Error to Criminal Court, Shelby County; J. Ed. Richards, Judge.

J. S Moon was convicted of murder in the first degree, and he brings error. Affirmed.

A. B Galloway, Jno. E. Ball, and L. B. Phillips, all of Memphis for plaintiff in error.

Frank M. Thompson, of Chattanooga, for the State.

McKINNEY J.

The plaintiff in error, J. S. Moon, hereinafter referred to as the defendant, was convicted in the criminal court of Shelby county of murder in the first degree for killing his wife Drew Foster Moon on Wednesday afternoon, August 24, 1921, with a pistol, and his punishment was fixed at death by electrocution.

The defendant has appealed to this court, and has assigned 10 errors, the first three of which question the sufficiency of the evidence to sustain the verdict of the jury.

The defendant on the afternoon of the killing and at the time of the killing was riding with his wife in his automobile, and he insists that his wife committed suicide by shooting herself with a pistol; while the state contends that the defendant shot and killed his wife.

The defendant was a taxicab driver, and was associated with W. C. Williams and Doc Davis in the taxicab business in Memphis, their stand being in front of the Union Station. He was 23 years of age, and was married to the deceased in June, 1919. He testified that he cohabited with his wife for several months prior to their marriage, but this is not at all certain from the record, and whether he did or did not in no wise affects the issue here involved.

The deceased was 25 or 26 years of age. For some months prior to the homicide they had been making their home with Mrs. J. M. Rand, a sister of the deceased, at 784 St. Paul street in Memphis. For eight days prior to the killing the parties had not lived together, but he visited her and took her driving on several occasions during this period. They evidently had not lived together harmoniously, and the evidence discloses that in February, 1920, the defendant packed his belongings with a view of abandoning his wife, and as he was leaving the house with his things his wife entered the bathroom and took bichloride of mercury tablets. She was rushed to the hospital and her life was saved.

Mrs. Rand testified that she understood from the deceased that the defendant had knocked her down and had torn the telephone from the wall, whereupon deceased ran to the bathroom and attempted to commit suicide in the manner indicated.

Shortly after this the parties renewed their marital relations.

It is apparent from the record that the deceased was very fond of the defendant, while, on the other hand, the evidence indicates that the defendant was tired of the deceased and was probably infatuated with some other woman.

Some six weeks prior to the murder the deceased had visited St. Louis for a week and returned to Memphis, where she remained for three weeks, and then made a short visit to Marion, Ill. Upon her return from Marion, about eight days before her death, the defendant carried her home in his car, but refused to live with her.

On Sunday, preceding her death on Wednesday, she wrote the defendant the following letter:

"Sunday. Dear Cookie: It sure has been a lonesome old Sunday. Just do you remember what we were doing a week ago to-day? But probably you had a picnic to-day. Guess you, Charlie, and your sweetheart sure did enjoy yourself. I tried to get you all day, but you were too busy then. Oh, well, I guess I have had my good time with you, so I will have to let you have her. You told me she got married, but this one you loved. The one that beat my time is not married. That's the reason you left me. Tell her I said to watch her step, because if I ever do catch her--well. I have an invitation to a picnic to-morrow. Hope you enjoyed yourself, too, Sunday, I sure didn't. How is Sugar? Wish you would let me have him--won't you? Be good, and, most of all, be careful, and blow the dust out of it. I am sure lonesome.

[Signed] Nobody's Baby Tots."

It is the theory of the state that the defendant became infatuated with a woman by the name of Mrs. Bessie Lee Odle, or some other woman, and that he deliberately planned to kill his wife so that she would not be in his way.

Mrs. Odle testified that she was 21 years old and married; that her husband's name was Allen Odle, and she had lived in Memphis all of her life. Said in August, 1921, she lived on Court street and other places. Met the defendant on Saturday and met him three times altogether. Said she met him on Saturday, Sunday, and Monday; that she knew him three days prior to the killing; that she saw him in the courtroom; that she first saw him on Adams street; that on this occasion she and the defendant went driving; went out to the pig stand on the Speedway; it was neither night nor day; it was about 7 o'clock on Saturday evening or something like that; that during that time of the year and in that month it was still light at 7 o'clock; that the automobile they were in was supposed to be defendant's, and that defendant was driving the car; that there was no one else in the car. Said she went on this drive at the request of the defendant.

That while they were riding they had a conversation relative to her marital affairs and his difficulties with his wife.

That defendant said his wife was out of the city and he was not living with her, and that he was not intending to live with his wife any more; that he had bought her all kinds of nice clothes and diamonds; that he had bought her some nice diamonds, and she made a stud for a Dago that she was living with; that she was living with some man he understood, and, if she ever bothered him any more, he intended to kill her.

When asked what words he used, she stated that that was all he said; that he was going to kill her if she ever came around him any more; that he intended to kill her. Said the next time she saw the defendant was on Sunday night; she met him on Sunday night about 8 o'clock. Said she was on Court street and he was in his automobile; that they went out driving that night; there was no one with them on that night; "we went by ourselves." She was asked if there was any statement made about his differences with his wife on that occasion, and said he talked about it that night while we were out; he said the same thing on that night that he did the night before about killing his wife.

Said he did not say anything about the place where he was going to kill her. Said the next time she saw the defendant was on Monday night. Said he came by the house, and there was a man by the name of Charlie and another girl by the name of Nell in the car. Said she did not know who Charlie was except by hearing Moon call him by that name.

Said:

"I think he was a roommate of Moon's, and there was nothing said on that night. We only went out hunting for an Airedale dog belonging to Nell. I never went riding with him any more after that. On the first night I went riding there was something said about a divorce. He said something about killing his wife, and I said it would be easier to get a divorce from her, and that is when he said something about killing his wife. I said there was an easier way than that. He said he would get a divorce, and he said, 'Are you going to live with your husband any more?' and I said, 'I do not think I am,' and I said, 'I am going to get a divorce, too,' and he laughed it off, and said, 'Well, we will marry.' Of course, I had no intention of marrying him. We were just out on a pleasure ride. I did not know his wife. I never had met his wife. I heard defendant say he would kill his wife just twice."

Said:

"He said something about Arkansas; said something about a lake or something like that; I am not sure he said he would throw her in the lake or river; I am sure he said something about that, but I am not sure whether he said the lake or the river."

Remont M. Bowers testified that he worked for the Memphis Packing Corporation and was a butcher; had known Moon about 10 days prior to the killing; had lived at 670 Rayburn avenue, and defendant also lived there at that time; that witness went out riding with defendant on the night prior to the killing; that a request or statement was made to witness by the defendant relative to borrowing a gun from witness. Said that--

"While out riding with Mr. Moon and Mr. Shaughn on the evening of the 23d of August Mr. Moon asked if I had a gun, and I told him 'No,' and he asked me if I knew where I could borrow a gun, and I said 'No,' and I became suspicious and asked him what he wanted with it, and he said he was going to the place where his wife was staying and take her out on the bridge and kill her."

He further testified that Mr. Robert Foster, brother of deceased, was credit man for the Memphis Packing Corporation.

Charles F. Shaughn testified that he was a sausage maker and employed by the Memphis Packing Corporation in August, 1921; knew the defendant Moon and had known him for about 2 months; that he heard or read about the killing that day; that at the time he was a roommate of defendant's at 607 Rayburn avenue; that on the night before the killing he went driving with defendant and a man by the name of Wheatley and witness' brother. He was then asked this question:

"Q. I will ask you whether or not during the occasion of that ride you heard the defendant make any reference to his wife"

--and answered:

"Well he spoke about his wife. She was also in the car with us for a while. She left us out. He said he loved his wife, and if he ever saw her with a man he would kill her. I heard him make that statement only once. She was not in the car at the time."...