Poe v. State

• Decision Date: 11 September 1963
• Citation: 370 S.W.2d 488,16 McCanless 413,212 Tenn. 413
• Parties: , 212 Tenn. 413 Isham POE v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 488

370 S.W.2d 488

16 McCanless 413, 212 Tenn. 413

Isham POE v. STATE of Tennessee.

Supreme Court of Tennessee.

Sept. 11, 1963.

W. R. Fain, Jr., Clarksville, for plaintiff in error.

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

FELTS, Justice.

Plaintiff in error, referred to as defendant, was indicted for an assault and battery with intent to commit rape upon Edna Patricia Anderson (T.C.A. Sec. 39-605). He was found guilty and his punishment fixed by the jury at not more than 15 years in the penitentiary, and judgment entered accordingly.

He appealed in error and has assigned a number of errors, among others, that the Trial Judge committed reversible error in failing to instruct the jury upon the issue of alibi raised by the evidence and essential to his defense.

As we view the case, we need consider only this assignment of error, and should not discuss the evidence or comment upon the facts further than to show the importance and effect of the omission or error complained of by this assignment.

The prosecutrix, Edna Patricia Anderson, was a 20-year-old Negro woman, married, and living with her husband and their 8month-old baby in Clarksville, Tennessee, in a three-bedroom house that they rented from defendant, a 33-year-old Negro man.

She testified that the assault occurred between mid-night and 5 A.M. August 4, 1961; that her husband was then on duty at Fort Campbell, Kentucky, and she was in her room in bed with her baby; that defendant entered her bedroom, tried to rape her, a struggle ensued, he was unsuccessful, and finally left without further harm to her. It appears, however, this struggle did not wake the baby and was not heard by the baby-sitter and her boy friend in the adjoining bedroom.

The husband of the prosecutrix testified that he talked with defendant some time after his arrest upon this charge; that defendant then confessed he had committed the assault; and that this confession was made in the presence and hearing of Laura Jackson, defendant's common-law wife. This, however, was contradicted by both of them--she denied hearing, and he denied making, such a statement.

Evidence for defendant set up an alibi. He had never been arrested before. He testified that at the time of the alleged cirme he was not at the house of the prosecutrix, but stayed and slept at the house of Laura Jackson all night, and that he knew nothing of the alleged crime until he was aroused from his sleep next morning by the Military Police, who later arrested him. His claim of alibi was corroborated by Laura Jackson and another witness.

In addition to the evidence of alibi, defendant undertook to impeach the testimony of the prosecutrix by the testimony of the unmarried couple, Sargeant Burrell and his girl friend, Caroland Ramey, the prosecutrix's baby-sitter, who occupied a bedroom next to that of the prosecutrix on the night in question. Each of these witnesses contradicted much of her testimony, particularly, the part about the struggle.

The Trial Judge charged the jury upon the subject of reasonable doubt, but failed to give them any instruction on the issue of alibi. While there was no special request for such instruction, we think, in the circumstances of this case, that it was the duty of the Trial Judge, without any request, to give the jury proper instructions which would fairly submit to them this issue of defendant's alibi. It was fundamental to his defense and such instruction was essential to a fair trial.

The general principle in criminal cases is that there is a duty upon the Trial Judge to give the jury a complete charge on the law applicable to the facts of the case. The defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury upon proper instructions by the Judge. Crawford v. State, 44 Tenn. 190, 194-195; Green v. State, 154 Tenn. 26, 39, 285 S.W. 554; Myers v. State, 185 Tenn. 264, 206 S.W.2d 30; Harbison v. Briggs Paint Co., 209 Tenn. 534, 549, 354 S.W.2d 464.

We have numerous cases illustrating the application of this principle, where it was held reversible error for the Trial Judge, even without a special request, to fail or omit to give the jury appropriate instructions upon an issue of fact presented by the evidence and fundamental to the accused's defense. We refer to a few of them.

In Crawford v. State, supra, a homicide case, defendant had made a statement in which he admitted he was one of the company of soldiers charged with the crime, but denied that he was present at the time or took any part in the homicide. The Trial Judge charged the jury they might consider whether the incriminating part of this statement constituted a confession, but failed to charge them that they must also look to the exonerating part, and that both parts should be considered together. Reversing for this error, the Court said:

'It is not enough, in criminal cases involving the life and liberty of the accused, that the law of the case be partially stated. The accused is entitled in such cases, to such a charge as the facts of the case require, and nothing short of that will satisfy the demands of justice: Allen v. The State, 5 Yer., 453-456; Nelson v. The State, 2 Swan, 482; 9 Hum., 411.'

In Frazier v. State, 117 Tenn. 430, 100 S.W. 94, a trial for murder where the defense was self-defense, the failure of the Trial Judge to charge the jury upon the subject of reasonable doubt was held reversible error, though there was no request for such instruction. There, the Court said:

'The plaintiffs in error were entitled, and it was the duty of the trial judge, to charge the jury in clear and unmistakable terms, without any request, that in order to convict they must be satisfied of the guilt of the defendants beyond a reasonable doubt, and that this doubt extended to and included every element necessary to constitute the offense of which the jury, if they should convict, should find the defendants guilty, and the verity of the affirmative defense, if any, relied upon by the defendants. The right of every defendant tried for a criminal offense to have this instruction given to the jury trying him is firmly and irrevocably fixed in our jurisprudence and cannot be denied him.' 117 Tenn. 455, 100 S.W. 100.

In Pearson v. State, 144 Tenn. 385, 226 S.W. 538, where a dying declaration was admitted against defendant, it was held reversible error for the Trial Judge to fail to give the jury any instructions upon the weight to be given such declaration, though there was no request for such instructions. The Court said:

'We cannot overlook the very great importance in securing to one charged with homicide a fair and legal trial by his peers, of having the jury given the rules by which they are to weigh evidence which is calculated by its very nature, as a dying declaration is, to be given weight out of all proportion to its evidential value, when properly considered by the rules applicable thereto.' 143 Tenn. 397, 226 S.W. 541.

In Webb v. State, 140 Tenn. 205, 206-207, 203 S.W. 955, 15 A.L.R. 1034, a trial for murder, where the only incriminating evidence was circumstantial, the failure of the Trial Judge to instruct upon the nature of circumstantial evidence and the law governing it, was held an error so fundamental as to require a reversal, though there was no request for such instruction.

It was said that such error was analogous to the error of failing to charge upon reasonable doubt, citing Frazier v. State, supra; but that a charge upon reasonable...