Sanders v. State
| Decision Date | 04 April 1925 |
| Parties | SANDERS v. STATE. |
| Court | Tennessee Supreme Court |
Appeal from Criminal Court, Davidson County; Chester K. Hart, Judge.
Clifford Sanders was convicted of assault with intent to commit murder in the first degree, and he brings error. Affirmed.
W. H Swiggart, Jr., Asst. Atty. Gen., for the State.
Clifford Sanders, referred to herein as the defendant, was convicted for an assault with intent to commit murder in the first degree, and the jury fixed his maximum punishment at confinement in the penitentiary for five years.
The defendant has appealed to this court and has assigned numerous errors, his principal insistence being that the evidence is insufficient to sustain the conviction.
The defendant, with his wife, her two sisters, and their husbands, Leslie Marshall and Albert Powell, resided in a four-room cottage which set back some 200 feet from Hamilton road in Davidson county. Hamilton road runs east and west and the house is on the north side of the road facing south.
On the night of January 17, 1924, the defendant came home in an intoxicated condition, and had a fuss with his wife, or some other member or members of the household. The evidence is not very clear as to just what did occur. The defendant procured his double-barrel shotgun, a sack of shells, and his pistol and went out into the yard, where he engaged in swearing loud talking, and shot his gun one time. His brother-in-law Powell remonstrated with him, and told him, in substance, to return to the house and behave himself, to which he replied: "That is all right; I am not scared of anybody." Powell then told the defendant that if he did not come into the house he would have to have it stopped.
Subsequently Powell left the house to summon the officers, taking his departure through a back window so that he would not be observed by the defendant.
In the meantime, according to the testimony of the defendant, he went to the barn, which was west of the house, and fed his stock, and then returned and seated himself on the west side of the house, where he remained until the officers came some two hours later.
It appears that about a year previous the defendant and his brother-in-law Leslie Marshall had a shooting scrape, during which each shot the other. Since that date they had not spoken, although continuing to occupy the same house.
While the defendant was in the yard, in front of the house, he looked through the window and saw Marshall load his gun. He admits that no words passed between them, and that Marshall made no threats of any kind toward him, or offered to do him any violence.
Marshall testified that he loaded his gun every night before retiring to protect his home.
The officers arrived between 11 and 12 o'clock in an automobile. They came from the west, had their lights on, and drove 35 or 40 yards past the front gate, where they stopped. They entered the gate and walked on up to the house laughing and talking on the way.
The defendant could see the gate from where he was seated.
The officers were advised that the defendant was somewhere out in the yard. Officer Sanders picked up Marshall's gun, came out into the yard in search of the defendant, and started around the house in a westerly direction. When he had taken four or five steps past the southwest corner of the house, the defendant shot him, inflicting serious wounds.
The defendant testified that he was sober at the time, and that the moon was shining, but that it was cloudy.
Sanders testified that when he turned the corner of the house he saw the defendant standing behind some bushes; that it was light enough for him to see that he was a negro; that he called to the defendant and asked him what the trouble was, whereupon the defendant immediately fired. He further testified that he was holding the gun down in one hand, probably the left hand, and did not raise the gun to a shooting position, or make any demonstration with it.
The defendant testified that he did not see the automobile; did not see the officers enter the gate and walk up to the house; did not hear them talking and laughing; that he was not standing behind any bushes; and that it was not light enough for him to tell that Officer Sanders was a white man.
The southwest corner of the house was some 4 feet off of the ground. The defendant further testified that he looked under the house and saw Mr. Sanders coming around the house with a gun in his hand, but that he thought it was Marshall; that the gun was "thrown on him," and he shot because he thought Marshall was going to shoot him.
After the defendant shot Officer Sanders, he ran away. Bloodhounds were dispatched to the scene of the shooting, and, after trailing the defendant through weeds and water for three or four miles, he was found at the home of a friend by the name of Will Scales.
The proof showed that the bushes where the defendant was standing at the time he fired the shot were tramped down, indicating that the defendant had been standing at that point for some time.
Ed Harris and Joe Dickson testified that after the defendant was placed in jail he stated to them that he shot the first man he saw walk around the corner, and that he was there to shoot the first man around the corner.
Accepting the defendant's theory that he thought he was shooting Marshall, we are of the opinion that the evidence is sufficient to sustain the conviction.
The preponderance of the evidence does not support the defendant's self-defense theory. The jury were well warranted in finding that he was "lying in wait" for Marshall.
But it is insisted that, although this be true, he could not be guilty of murder in the first degree had he killed Sanders, for the reason that he thought he was shooting Marshall, and we are referred to the case of Bratton v. State, 10 Humph. 106, in which it was held that if the defendant, intending to kill the prosecutor, where the killing would have been murder in the first degree, killed the wife of the prosecutor, the offense would not be murder in the first degree.
In 29 Corpus Juris, 1109, it is said:
"It is not ordinarily necessary under the statutes defining murder in the first degree that the specific intent to kill be directed toward the person actually killed, and the crime is as a general rule of the first degree if with the specific intent to kill one person defendant by accident or mistake...
To continue reading
Request your trial
-
Sullivan v. State
...of one person in an attempt to commit murder in the first degree on another, would not be murder in the first degree." In Sanders v. State, 151 Tenn. 454, 270 S.W. 627, authorities were cited to show that the Bratton Case was of harmony with the decisions in the other states. To cure this d......