Powers v. State

• Decision Date: 27 November 1906
• Citation: Powers v. State, 97 S.W. 815, 117 Tenn. 363 (Tenn. 1906)
• Parties: POWERS v. STATE.
• Court: Tennessee Supreme Court

97 S.W. 815

117 Tenn. 363

POWERS v. STATE.

Supreme Court of Tennessee.

November 27, 1906

Appeal from Circuit Court, McMinn County; George L. Burke, Judge.

Earnest Powers, alias Earnest Underwood, alias Earnest Benton, was convicted of murder in the first degree, and he appeals and assigns error.Reversed.

Burkett Mansfield & Miller, James Collins, and Lewis Shepherd, for plaintiff in error.

Attorney GeneralCates, Young & Lasater, E. B. Madison, and E. L Roberts, for the State.

NEIL J.

The plaintiff in error was indicted in the circuit court of McMinn county for the murder of one Elbert Wattenbarger, was convicted of murder in the first degree, and was sentenced to confinement in the state penitentiary for the term of his natural life.From this judgment he has appealed, and has here assigned errors.

The plaintiff in error at the time of the homicide was a boy of between 15 and 16 years of age and attended the school over which Mr. Wattenbarger presided.The afternoon before the homicide plaintiff in error and another student, Charlie Stanton, a little boy between 12 and 13 years of age, had been engaged in throwing stones at each other, with the result that the latter was struck with a stone and knocked down.The father of the little boy complained the next morning to Mr. Wattenbarger, and after school was opened Mr Wattenbarger called up Charlie Stanton and the plaintiff in error, and questioned them about the incident before referred to, and sought to make the boys promise that they would not throw stones any more.Charlie Stanton readily promised.The plaintiff in error, however, would only make a conditional promise.According to the testimony of the witnesses for the state, he said that it would depend upon circumstances whether he threw stones or not.According to the witnesses for the plaintiff in error, he said that it would depend upon circumstances; if others did not throw stones at him, he would not at them.The teacher, not being satisfied with this conditional promise, sat a moment with his head leaned upon his hands, as if in thought, and then stepped to the window and looked out, and returned to the platform where his seat was, and said to the plaintiff in error that he must whip him, and commanded him to rise.The plaintiff in error arose and stood before him.They were then very close together.The teacher raised his switch and struck the plaintiff in error one blow over the shoulder.From this point onward the testimony in conflicting.According to the witnesses for the state, plaintiff in error, after receiving the first blow with the switch, raised his left hand and endeavored to catch the switch, and at the same time drew his right hand from his pocket with a knife in it.The teacher, on seeing the knife, exclaimed vigorously, "You!" and threw out his left hand as if to ward off the expected blow from the knife, but did not succeed in doing so.His left hand, with which he was attempting to protect himself, passed above the arm of plaintiff in error and struck the latter over the eye, turning his head slightly around.Plaintiff in error about the same time stabbed the teacher in the heart, from which wound he died within an hour or so afterwards.According to the evidence of the witnesses for plaintiff in error, the teacher struck the plaintiff in error several times with the switch and broke it, and then struck him with his fist, and during the progress of this beating the boy stabbed him with a pocketknife.

We shall not discuss the evidence, or decide which view we think is supported by the weight of the testimony, further than to say that we do not think the evidence makes out a case of murder in the first degree.

Before passing to an assignment upon a question of law which we think presents a reversible error, we shall consider other assignments proper to be passed on in view of the new trial that must be granted.

It is said that the trial judge committed error in making the following statement to the jury in the course of his charge:

"There are a number of admitted facts in this record, to wit: That the tragedy occurred in McMinn county and prior to the finding of the indictment in this case, that deceased was at the time teaching school in this county at Tranquility Schoolhouse that defendant was a pupil in his school, and that the tragedy grew out of the teacher's chastisement of the defendant as a pupil in his school."

The trial judge in a criminal case should not state to the jury any fact as one proven, but should leave all of the facts to the jury.However, the facts stated were not controverted in the record, and we can see that no injury was done by the statement made, and for this reason the error was not reversible.

Objection is made to the instruction which the trial judge gave upon the subject of the right of a schoolmaster to chastise his pupils in a reasonable manner for insubordination, but no ground is assigned in support of the objection, and no authority cited, and it is not pressed, but made merely pro forma.We need not, therefore, give it further consideration.

It is insisted the trial judge erred in charging the jury as follows:

"Defendant has put his character in evidence, which he alone could do, and it may be looked to in judging of the defendant's purpose and intention at the time of the killing."

The objection made is that the defendant's character was a witness in his favor upon every issue in the case, and that the trial judge should not have limited its effect "to his purpose and intention at the time of the killing."

In Roman v. State, 1 Shan. Tenn. Cas. 470, 472, it is said: "The defendant is always entitled to the benefit of his good character, and a jury may look to this, with the other evidence, to see if there is a reasonable doubt of his guilt."

In 4 Elliott on Evidence, § 2721, it is said: "It is now well settled in most jurisdictions, contrary to some of the older decisions, that evidence of good character is admissible and entitled to consideration on the question of guilt along with the other evidence, not only in doubtful cases, or cases in which the other evidence is of itself contradictory or unconvincing, but also in all proper cases, no matter whether the other evidence, in and of itself, is apparently conclusive or inconclusive."

In section 3039 of the same book it is said: "It is the general rule that the defendant's good character or reputation for peace and quiet is admissible in his favor.But the evidence must be confined, in general, to the trait involved in the crime charged, and it has been held that the defendant cannot show his good character and conduct subsequent to the commission of the crime.Thus it has been held that, although evidence of the previous good character for peace and quietness of the defendant is admissible, evidence of his previous moral character is not.And whether the accused is a brave man or a coward has been held to be immaterial on a trial for murder."The charge of the circuit judge should have been broader upon the subject; but, in the absence of a special request, we do not think that his failure to give more liberal instructions upon this subject could be treated as reversible error.Phelan v. State,114 Tenn. 483, 507, 88 S.W. 1040.The charge upon this subject was correct as far as it went.

It is next insisted that the charge of the circuit judge upon the subject of dying declarations was too meager.He said on this subject: "Dying declarations made by the deceased in this case have the same weight and sanctity as evidence testified to under oath."He gave this instruction in answer to a general request upon the part of counsel to charge upon the subject, but no special request was made to the court formulating the instruction desired.We are of opinion that, in the absence of such special request, there could be no reversal on the meagerness of the charge upon this subject.There was, indeed, no question as to the fact that deceased was fully aware of his impending death, or of the good character of the deceased.There was some slight contradiction in the testimony of several witnesses who were present as to what was said by deceased upon the state of the boy's mind at the time the stabbing was done.However, this matter would fall under the instructions previously given in the charge concerning contradictions in the evidence.We do not think any injury was done to the prisoner by the meagerness of the charge upon this subject.

It is insisted that the circuit judge erred in not charging upon the law applicable to involuntary manslaughter, assault and battery, and simple assault.There was no error in this respect.There was no evidence that would have justified such a charge.It is true that the general rule is that the trial judge must charge upon every offense embraced within the indictment; but there is another rule to the effect that there will be no reversal for his failure to do so, when this court can see that the prisoner suffered no injury by reason of such omission.Good v. State, 1 Lea, 293; State v. Hargrove, 13 Lea, 178, 184; State v. Parker, 13 Lea, 221;Tarvers v. State, 6 Peck, 485, 16 S.W. 1041.

On the trial in the court below Steve Bales, a witness for the state, testified on...