Pearson v. State

• Decision Date: 23 October 1920
• Parties: PEARSON v. STATE.
• Court: Tennessee Supreme Court

226 S.W. 538

143 Tenn. 385

PEARSON v. STATE.

Supreme Court of Tennessee.

October 23, 1920

Error to Circuit Court, Hawkins County; D. A. Vines, Judge.

Green Pearson was convicted of voluntary manslaughter, and he brings error. Reversed and remanded for new trial.

Charles L. Cornelius, Asst. Atty. Gen., for the State.

SMITH Special Justice.

Plaintiff in error, Green Pearson, was convicted of voluntary manslaughter, in the circuit court of Hawkins county, for the killing of one James Short, on Sunday, January 11, 1920.

Plaintiff in error assigns several grounds of error to the judgment of conviction.

The first assignment is upon the facts of the case, and to the effect that the evidence preponderates in favor of the innocence of the plaintiff in error.

There is practically no conflict in the evidence as to the facts leading up to the killing. The deceased, Short, and plaintiff in error were brothers-in-law; Short having married Pearson's sister. They lived within about 150 yards of each other on adjoining land. Bad feeling had existed between the two families for a number of years. The deceased was a fussy and quarrelsome man, and got along badly with his neighbors. He had shown by threats and otherwise that he entertained very hostile feelings toward the plaintiff in error. It seems that there had been some controversy between the deceased and plaintiff in error with respect to a water course or ditch. With this ditch open the water would flow into the plaintiff in error's premises, and he insisted upon its being stopped up and filled, whereas the deceased insisted upon its being open.

On Sunday morning before the tragedy, plaintiff in error had left his home, and while he was gone, his daughter, about 10 years of age, went down into the field, and was throwing out the rocks from this ditch which some of the family of the deceased had placed therein. At that time the deceased was sitting near his home, and in view of the Pearson home, on a pile of lumber. The deceased's wife, observing the Pearson child throwing the rocks out of the ditch, went down to the place and engaged in a quarrel with the wife of the plaintiff in error, who came on the scene, and while this quarrel was in progress the plaintiff in error rode up to his house on his horse. Thereupon the deceased's wife began to address her remarks to plaintiff in error, who made no reply to his sister, but stayed by his horse, simply nodding his head while she was talking. The deceased seeing this quarrel going on, went into his house, got his shotgun and started down to where the quarrel was in progress. The plaintiff in error, who was at this time near his house standing by his horse and taking no part in the quarrel, but observing the deceased with his gun going in the direction of the place where the quarrel was in progress, went into his own home and armed himself with a pistol, and went out through the back door.

Plaintiff in error testified that soon after he got out there the deceased made threats that he would kill him and the whole family, and raised his gun as if to shoot, and that thereupon he deliberately fired his pistol at the deceased three times and killed him.

His defense is that he had the right to do this to protect himself and family from death or great bodily harm at the hands of the deceased.

It is contended by the state that the plaintiff in error cannot avail himself of this defense, because at the time he shot the deceased, the deceased was retreating, with his back to the plaintiff in error. There is practically no dispute that at the time the first shot was fired the deceased was advancing with his gun, and there is practically no dispute in the evidence that at the time the subsequent shots were fired the deceased had his back to the plaintiff in error. The wounds from which the deceased died entered in the back.

The mere fact that the deceased was fired upon while he was retreating would not deprive the plaintiff in error of the right to rely upon his plea of self-defense, provided that under all the circumstances he entertained the belief, and was justified in that belief by the circumstances, that the deceased was not retreating from the fight, but would immediately renew it, and the imminent danger still existed.

It is a close question as to where the weight of the proof on this question is, and we shall not undertake to solve it, since we find it necessary, under other assignments, to reverse the case and remand it for a new trial. The rule of this court which places upon the plaintiff in error the burden of showing his innocence by preponderance of the evidence only applies where he has had a fair and impartial trial, and one free from prejudicial error. The law affords to defendant the right to an acquittal if there is in the minds of the jury a reasonable doubt as to his guilt, and he is therefore entitled to have such a trial as will protect him in that right.

This brings us to a consideration of assignments of error which challenge the action of the trial court in two or more particulars.

Plaintiff in error complains of the action of the trial court in permitting counsel for the state to indulge in improper and inflammatory language in their arguments. One of the counsel for the state, in his argument, used this language:

"Will you, gentlemen of the jury, allow this defendant to go free and continue his life of murder and adultery? Two men lie dead in their graves, two sets of children are fatherless--all because of this murderous and adulterous man. Will you continue to allow him to follow that course? Will you turn a man like that loose upon the people of Hawkins county to continue to commit murder and adultery?"

The defendant's counsel entered an objection to this argument, to which the court replied:

"I think it is legitimate, proceed with your argument."

The district Attorney General in his closing argument used this language:

"Think of it, gentlemen of the jury: This defendant has already killed two innocent men. This old adulterer has two sets of orphans as living monuments of his deadly malice and passion, two notches on his gun; two men have bit the dirt. Will you turn him scot-free on the people of Hawkins county to continue such a course?"

To this argument defendant's counsel interposed a timely objection, which was likewise overruled by the court.

These remarks of counsel for the state were highly inflammatory, improper, and not justified by any evidence in the case.

They were not justified by the admission of the defendant that he had previously killed a man. He had been acquitted of that charge, and could not be denounced as a murderer on that account. The previous killing could shed no light on the instant case. If he were subject to criticism for that killing, it would only go to his credit as a witness.

The testimony of the Justice woman to the effect that she had had illegitimate children by the plaintiff in error did not justify the remark of the state's attorney.

It was improper to insist upon his conviction for this offense in order to prevent him from continuing a life of adultery. There was in fact no evidence that he was engaged in such a life at the time of the trial or at the time of the killing.

The contention of the state here on this question is not that the argument was proper, but that it was not prejudicial because of the defendant's own evidence to the effect that he shot the deceased in the back at a time when the deceased was going from him, and that his admission is sufficient to convict him of manslaughter. We cannot give our assent to that contention. The question of whether the defendant was justified in shooting when he did depends upon what the jury might conclude as to whether at that time the defendant had reasonable...