Morrison v. State

• Decision Date: 12 November 1965
• Citation: 21 McCanless 374,217 Tenn. 374,397 S.W.2d 826
• Parties: Joe MORRISON, Kyle Culbertson and Bobby E. Bradley v. STATE of Tennessee. 21 McCanless 374, 217 Tenn. 374, 397 S.W.2d 826
• Court: Tennessee Supreme Court

Page 826

397 S.W.2d 826

Joe MORRISON, Kyle Culbertson and Bobby E. Bradley v. STATE of Tennessee.

21 McCanless 374, 217 Tenn. 374, 397 S.W.2d 826

Supreme Court of Tennessee.

Nov. 12, 1965.

On Petition to Rehear Jan. 5, 1966.

Jack E. Vaughan and John Washington, Johnson City, for Joe Morrison.

Preston H. Taylor, Kingsport, for Kyle Culbertson and Bobby E. Bradley.

George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Nashville, for the State.

BURNETT, Chief Justice.

Plaintiffs in error are Joe Morrison, Kyle Culbertson and Bobby E. Bradley. These three men were jointly indicted on a charge of rape and were tried together in the Criminal Court for the First Judicial Circuit in Jonesboro, Washington County, Tennessee. Defendant Morrison was found guilty as charged and the jury fixed a sentence of ninety-nine (99) years in the State penitentiary. Bradley and Culbertson were convicted by this same jury of aiding and abetting said Morrison to commit the offense of rape. They were each sentenced to ten (10) years in the State penitentiary.

Morrison, alone, and Bradley and Culbertson, jointly, have perfected appeals to this Court, which proposes to dispense with the matters relating to this cause in a two part opinion. The first part of this opinion addresses itself to the grounds for a new trial raised by defendant, Morrison; the second part addresses itself to the grounds for a new trial raised by defendants, Bradley and Culbertson.

Counsel for Joe Morrison have compiled a long list of grounds for a new trial. This Court considers the following grounds of such substance to warrant comment in this opinion: (1) that the evidence preponderates in favor of the innocence of the accused and against his guilt; (2) that the trial court was in error in denying the defendant the right to have and study copies of statements made by his co-defendants prior to trial; (3) that the trial court was in error in not declaring a mistrial after the District Attorney General had made inflammatory statements to the jury in his closing argument; and (4) that the court was in error in allowing the introduction of the picture of Mrs. Ben Calloway over the objection of this defendant because of its inflammatory influence on the jury.

The appeal to this Court for reversal on the ground that the evidence preponderates in favor of the innocence of the accused and against his guilt is worthy of little further consideration, this Court having read the record. Mrs. Calloway's testimony affirmatively shows that all the elements of the crime of rape were present. Belief or disbelief of this testimony is clearly a matter for the jury; certainly no authority need be cited for this most fundamental principle of trial practice, but the words of this Court as written by Mr. Justice Tomlinson in Hargrove v. State, 199 Tenn. 25, 28, 281 S.W.2d 692, 694, seem particularly appropriate in this case:

'In considering the assignments of error based upon the testimony, this appellate court must apply the rule that credibility of witnesses and conflicts in testimony have all been settled by the verdict of the jury. This makes unnecessary and, indeed, inappropriate, a detailed discussion of that evidence, pro and con, * * * in stating what we conclude the material facts to be as established by that testimony.'

We are not persuaded that the verdict was against the clear weight of the evidence.

The second ground for a new trial raised by defendant, Morrison, is that his counsel was not allowed to examine statements made by his two co-defendants prior to the trial of the cause and that his counsel had the right to examine such statements pursuant to T.C.A. 40-2441, which is, as follows:

'40-2441. Copy of written confession or admission against interest furnished defendant--List of witnesses, if oral.--Whenever a written or oral confession or admission against interest shall have been made before any law enforcement officer or agency in this state by any person charged with any crime, a copy of such confession, or admission against interest, if written, together with a list of the names and addresses of all persons present at the time such confession or admission against interest was made, shall be given to the defendant or his counsel on demand. If such confession or admission against interest was not reduced to writing, then a list of the names and addresses of all persons present at the time the confession or admission against interest was made shall be furnished.

'No confession or admission against interest shall be admitted as evidence in any case unless a copy of the confession or admission against interest and/or list of names and addresses of persons present at the time the confession was made is furnished as required by this section.'

The question before this Court is whether this statute, T.C.A. 40-2441, was intended to apply to oral or written confessions made by persons other than the person who claims the right to examine such statements pursuant to T.C.A. 40-2441. We think this statute was only intended to cover a situation in which the prosecution has in its possession a statement, made by the person indicted and was not intended to apply to the statements of other persons. The obvious implication of a fair and natural reading of this statute fully supports our position in holding that this second ground has no merit.

The third contention of the defendant, Morrison, is that the trial judge was in error in not granting him a new trial because the District Attorney General's closing argument was 'inflammatory, prejudicial and meant to prejudice Joe Morrison from obtaining a fair and impartial trial.'

This Court has examined the argument of the District Attorney General, and the evidence presented at the trial, and can come to no other conclusion than that irrespective of what the District Attorney General's purpose was in his emotionally charged statement that such statement had no effect on the outcome of the trial. Therefore, even if the argument was improper, it would not justify reversal, since the situation falls within the scope of the harmless error statute, T.C.A. 27-117. See also Crowe v. Provost, 52 Tenn.App. 397, 374 S.W.2d 645.

In reply to the charge of error in the admission of the photograph of Mrs. Calloway, it has long been settled that photographs showing the results of a defendant's misconduct are admissible to corroborate the medical testimony. Hughes v. State, 126 Tenn. 40, 148 S.W. 543; Brown v. State, 186 Tenn. 378, 210 S.W.2d 670; Bass v. State, 191 Tenn. 259, 231 S.W.2d 707; and Kirkendoll v. State, 198 Tenn. 497, 281 S.W.2d 243. The medical testimony showing the extent of Mrs. Calloway's injuries was corroborated by the picture in question, and thus no new trial will issue on the ground that the picture was improperly admitted into evidence.

The joint appeal of Culbertson and Bradley will be resolved by the disposition of a single question raised in the defendants' assignments of error.

The question arises because the trial court refused to sllow defendants, Culbertson and Bradley, to introduce any character evidence since they did not take the stand in their own defense; the trial judge being of the opinion that since their credibility was not in issue by virtue of their not taking the stand, that such character evidence was irrelevant. Counsel for these two defendants excepted to this ruling and used this same ruling as one of their grounds in their motion for a new trial, which the trial judge overruled. Defendants' counsel assign this action as error and as basis for a new trial. The question before this Court is, therefore, was the trial judge in error in refusing to allow this line of character evidence to be introduced? More specifically, was the character evidence offered by the defendants irrelevant since they had not taken the stand to testify?

More than the mere buttressing of the defendants' credibility as a witness may be proved by character evidence offered by the defendants. In Fry v. State, 96 Tenn. 467, 471, 35 S.W. 883, 884, this Court said:

'The defendant was before the court not merely as a witness, but as the accused, and proof of character was important, not only to illustrate his credibility as a witness, but as a fact to be considered on the question of his guilt or innocence.' (Emphasis ours.)

In Strader v. State, 208 Tenn. 192, 198, 344 S.W.2d 546, 548, 87 A.L.R.2d 963, this Court states the following principle:

'Good character is a flower of the slow growth of years and does not change overnight. 'The natural and reasonable inference is that a man will generally act in accordance with his character. It is the law...