Saunders v. State

• Decision Date: 10 March 1961
• Citation: 12 McCanless 347,208 Tenn. 347,345 S.W.2d 899
• Parties: , 208 Tenn. 347 J. Tunkle SAUNDERS v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 899

345 S.W.2d 899

12 McCanless 347, 208 Tenn. 347

J. Tunkle SAUNDERS v. STATE of Tennessee.

Supreme Court of Tennessee.

March 10, 1961.

Lucius E. Burch, Jr., Memphis, for plaintiff in error.

Walker T. Tipton, Asst. Atty. Gen., for the State.

BURNETT, Justice.

Saunders was charged in a presentment of the Grand Jury with an assault with intent to commit murder in the first degree. He was convicted of assault and battery with sentence of six months in the County Workhouse and a fine of $500. This judgment has been seasonably appealed to this Court. Able briefs have been filed, arguments heard, and we now, after a careful reading of the record, the briefs, the authorities therein cited, and making an independent investigation, have the question for determination.

The occurrence out of which this presentment arose occurred in Memphis on January 12, 1959, at the home of the plaintiff in error. On this day, which was Monday, the plaintiff in error had invited two ladies and a gentleman friend of his to his home for lunch. The group gathered at the home of the plaintiff in error around 1:00 o'clock and spent some two or three hours prior to their lunch, which was served about 3:00 o'clock, having cocktails and discussing literature.

Just about lunch time, or around 3:00 o'clock, the defendant got a .20-gauge gun of his, brought it to the downstairs of his home in preparation to loaning it to the gentleman friend who was visiting, and in preparation to showing him how it operated the gun inadvertently fired into the floor of the house which was slate and the pellets ricocheted off the wall. There was no further handling of this gun until the events out of which this presentment arose. Sometime during the afternoon, and after the lunch, the plaintiff in error phoned a lawyer friend of his in Memphis. At the time this call was made this lawyer was out of his office, but upon his return, shortly before 5:00 o'clock, he returned the call to the plaintiff in error. The plaintiff in error then invited this lawyer to come by his home for cocktails. This lawyer came to the home of the plaintiff in error about 5:00 o'clock in the afternoon, parked his car on the street and walked up to the defendant's home and went in the house without knocking, the door apparently being open or ajar.

Upon entering the home of the plaintiff in error the lawyer was standing in the entrance hall to the right of which is located the dining room and to the left of which is located the living room. This lawyer went directly into the dining room and spoke to one of the ladies, Mrs. Leatherman, and to the gentleman friend, Mr. Richardson, who were visiting the plaintiff in error. These parties were sitting at the dining room table. After conversing with them for some fifteen to twenty seconds, the lawyer, Mr. Alexander, walked across the hall to the entrance of the living room to speak to the plaintiff in error and the lady, Mrs. Smith, who were seated on the sofa talking.

When Mr. Alexander entered the living room, the plaintiff in error jumped up from his seat and rushed upstairs and mumbled something about 'shoot'. About this time, Mrs. Leatherman rushed into the living room from the dining room and said, 'Let's get out of here, Tunkie is crazy and is going to shoot someone.' The two ladies then left the house and ran, or walked very fast, to Mrs. Leatherman's car. Mr. Alexander followed immediately behind them and was proceeding to his car, which he said was about forty to fifty feet from the house, when the defendant fired a .20-gauge shotgun twice from a second story window. The distance from the house to Mr. Alexander's car is disputed in the record, and according to the evidence of the plaintiff in error instead of being some forty to fifty feet was some forty-three paces away from the house. Be this as it may, this is a disputed question with the statements of the two parties as to the distance being an estimate on the part of Mr. Alexander and being a measurement on behalf of the plaintiff in error. Pictures of the location of the house and its distance from the street are in the evidence, and as to how far this was, was a question for the jury under all the facts and circumstances.

Nineteen shot from the second blast of this .20-gauge shotgun, which was loaded with skeet shot or number 9's, struck Mr. Alexander about the neck and shoulders. Three holes from these shots were drilled through the brim of his hat, and one through the crown. As he was hit by these shots Mr. Alexander turned and called the defendant 'a fool' or something similar, got in his car, and drove to the home of one of the ladies who was present.

Shortly after he had gotten to the home of this lady, due to the fact that his neck was bleeding slightly where he had been struck, he decided it was best to call a doctor. Then after some discussion it was decided it was best to go to the doctor's office for a tetanus shot which had been advised by the doctor. As Mr. Alexander and Mrs. Leatherman were leaving this home to go to the doctor's office, the plaintiff in error and the gentleman friend, who had been at his home for lunch, arrived at the home. After some little conversation between those present, it was noticed that the plaintiff in error had his hands in the pockets of his topcoat. During the conversation there (there being no words passed between Mr. Alexander and the defendant) somebody asked Mr. Saunders, plaintiff in error, what was going on and he made the statement, 'I shot him.' As just said, he had his hands down in his topcoat pockets and according to Mr. Alexander, 'As I was leaving to go over to Dr. Taylor's, Dr. Taylor having previously left, I asked him if he had a gun in his pocket and he said he did.' In the testimony herein of Mr. Saunders, the plaintiff in error, he admits making such a statement but says that he didn't have a gun and he only made it in a joking and playful manner. Be this as it may, the jury in this case had both Mr. Alexander and the plaintiff in error before them, heard their testimony as to how and what occurred. It was up to the jury to conclude from these statements the effect thereof.

No report was made to the authorities with reference to this occurrence because apparently for fear of unfavorable publicity towards the parties present. But such things have a way of cropping out and obviously when they are tried to be covered up they gain momentum and proportions. Through one way or another various rumors and statements as to what went on occurred in the local press. As a result of this the Attorney General's office made an investigation and from this investigation the presentment herein upon which this conviction was based was born.

Of course, the effect of finding the plaintiff in error guilty of assault and battery only was to acquit him of the felony or more serious charges in the presentment. Reagan v. State, 155 Tenn. 397, 293 S.W. 755; Asbury v. State, 178 Tenn. 43, 154 S.W.2d 794.

Ordinarily intent to injure is the gist of an assault. Richels v. State, 33 Tenn. 606. A specific intent though to do an injury is not necessary to constitute assault and battery where the act complained of is malum in se but general malevolence or recklessness will suffice. King v. State, 157 Tenn. 635, 11 S.W.2d 904, 905. In the King case, this Court quoted with approval Clark & Marshall on Crimes, as follows:

'While there is very little authority on the question, there seems to be no good reason to doubt that a person may be guilty of criminal assault and battery if he intentionally does an act which, by reason of its wanton and grossly negligent character, exposes another to personal injury, and does in fact cause such injury. Throwing a stone in sport and striking another is an assault and battery.

'If a personal injury is unintentionally done another by one who is engaged in an unlawful act, he is not necessarily excused on the ground of accident. If the act is a crime and malum in se, and the injury is a natural or probable consequence of the act, he is guilty of assault and battery. Thus, if one strikes at one person and unintentionally injures another, he is guilty of assault and battery upon the person injured. It is not even necessary that there shall be an intent to injure any particular person. If one throws a fire-cracker or shoots into a crowd, and injures any one of the crowd, it is an assault and battery.'

The above quotations as approved by this Court clearly apply to the factual situation herein as will be more specifically hereinafter related.

In 1882, this Court in Cowley v. State, 78 Tenn. 282, at page 284, adopted the principles above quoted, citing a number of authorities to sustain the proposition.

The basic contention on this appeal is that there is no evidence of any intent to do injury. The intent necessary to constitute assault and battery is either an express desire upon the part of the accused to inflict the injury or it can be supplied as a matter of law from doing an act in such a reckless and wanton manner that the natural and probable results thereof will be to inflict an injury. The factual situation as presented in each case is a question for the jury to determine whether or not there is either an express desire, or from the acts within themselves the intent is shown.

In this case the record shows that the plaintiff in error intentionally fired a shotgun twice and that the second blast struck Mr. Alexander. The plaintiff in error says that he did not intend to kill Mr. Alexander or anything of the kind, because if he had intended to do so he was an excellent shot and would have used a pistol or something of the kind to shoot with. He says though that he was in an 'abandoned mood' and he likewise says, 'Well, I said, 'Well, if he is going to act that way, I'll just fire a couple of shots." He likewise says, 'Evidently I wasn't thinking much at all, or I wouldn't have...