Sherrill v. State

• Decision Date: 23 January 1959
• Citation: Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811, 8 McCanless 427 (Tenn. 1959)
• Parties: Willie B. SHERRILL v. STATE of Tennessee. 8 McCanless 427, 204 Tenn. 427, 321 S.W.2d 811
• Court: Tennessee Supreme Court

Page 811

321 S.W.2d 811

Willie B. SHERRILL v.STATE of Tennessee.

8 McCanless 427, 204 Tenn. 427, 321 S.W.2d 811

Supreme Court of Tennessee.

Jan. 23, 1959.

C. P. J. Mooney and R. G. Draper, Memphis, for plaintiff in error.

James M. Glasgow, Asst. Atty. Gen., for the State.

BURNETT, Justice.

Sherrill was indicted for the commission of a crime against nature.He was convicted of this crime and sentenced to serve seven years in the penitentiary.From this conviction he has seasonably appealed, filed briefs, arguments have been heard and we now have the matter for determination.

Section 39-707, T.C.A., makes 'a crime against nature' a felony.This statute does not go into detail and set forth what each of these crimes are but we, in Fisher v. State, 197 Tenn. 594, 277 S.W.2d 340, have adopted the Maine Court opinion.State v. Cyr, 135 Me. 513, 198 A. 743.That Court said in part:

'The statute gives no definition of the crime but with due regard to the sentiments of decent humanity treats it as one not fit to be named, leaving the record undefiled by the details of different acts which may constitute the perversion.The generality of the prohibition brings all unnatural copulation with mankind or a beast, including sodomy, within its scope.'198 A. 743.

Thus it is that the statute under which this man was indicted and convicted and which was read and charged to the jury includes the crime here charged of fellatio, which in common language means sexual perversion committed with the male sexual organ and the mouth.

According to the evidence as viewed from the State's standpoint a little boy whose surname was Anglin, aged 10 at the time of the commission of the act, and his playmate, whose surname was Donaldson, aged 11 at the time of the commission of the act, went to the plaintiff in error's home sometime in the early part of December, 1956.The record shows from the testimony of these two boys that Donaldson had visited the plaintiff in error's home frequently and referred to the plaintiff in error as 'Uncle Willie'.Uncle Willie lived in a small two-bedroom house with a kitchen and a small living room with a little hallway going back to the bedrooms and a bath between the two rooms.The plaintiff in error had in this house a television and showed these boys movies, etc., at times.It was the practice of the Donaldson boy who was a very near neighbor of the plaintiff in error, to go to this home frequently and push the door open and holler, 'Uncle Willie', and then go in.The plaintiff in error did not know the Anglin boy prior to the commission of the first offense alleged herein.

The plaintiff in error was a truck driver and drove heavy duty trucks into Louisiana and Oklahoma and did most of his truck driving at night and when in Memphis he slept usually during the daytime.On the occasion of the alleged offense for which this conviction was had these two boys went to Sherrill's home and opened the door and hollered' Uncle Willie' and went in.They found the plaintiff in error there at the time dressed in his pajamas.He invited these boys into his house and talked with them for a short time.Afterwards he asked them to accompany him into his bedroom on the back side of the house.There, according to the testimony of these two boys, Donaldson first participated in this loathsome, unspeakable act for some five or six minutes and then he was followed in this commission of the same act by the Anglin boy and then the act was completed by the Donaldson boy.Each of these boys testified as to the participation in this transaction.At the conclusion, the plaintiff in error gave Donaldson a dollar and instructed him to give Anglin half of it.After they left the house these boys went to a store where they bought soft drinks, etc., and divided the money.The boys also testified of having engaged in an identical act with the plaintiff in error in the month of November prior to the time for which this conviction was had.Each of the boys also observed the other when he engaged in the act with Sherrill.

The plaintiff in error is 54 years of age.He denied most emphatically that Anglin had been in his home and categorically denied having participated in the offense with which he is charged.The evidence on his behalf is to the effect that his wife usually stayed at home during the day while he was sleeping so as to answer the telephone and keep people from bothering him so that he could sleep as he had to have his rest due to the kind of work that he was doing.There was a conflict in this evidence whether she was there or not by some of the neighbors.She testified to the fact that she was there most of the time except when she left on brief periods.

About three weeks after this offense was supposed to have been committed the Anglin boy claimed to have a hurting in his chest and feel sick, etc., and the mother examined him and found he had a red throat.In talking to him he told his mother, presumably, what has been detailed above.She in turn went to the Donaldson boy's mother and told her and then as a result of this the charges were brought and prosecution had which resulted as above indicated.

The only evidence in this record as to the commission of this offense is what is detailed by these two boys as above indicated.There is evidence in the record by the mothers that they were told a story by the boys and as a result of that the prosecution was brought and this is claimed by the prosecution to be a corroboration of the fact of the commission of the act.In the first place we do not think that this relation of these boys to the mothers more than three weeks after the offense was committed, under the circumstances which it was related to them, is admissible as any evidence at all.It certainly is not part of the res gestae.Under the rule as established by this Court in Johnson v. State, Tenn., 296 S.W.2d 832, this evidence is not admissible.In the Johnson case the details were related to the father in a very few hours after the commission of the offense, and in addition to that there was other testimony corroborating the facts of the commission of the offense in that case to make that testimony admissible.Thus it is that we hold that this testimony is not admissible.

There are many assignments of error made by the plaintiff in error, some fifteen or sixteen, but we will not treat each of them and will not discuss the ones that we do discuss seriatim.It will be our purpose, in view of the conclusion we have reached herein, to merely discuss those that we think are pertinent for a correct conclusion of this lawsuit.

The most serious question raised by the assignments herein is that these two young boys were accomplices and that their testimony was uncorroborated.It is thus argued that the testimony of Donaldson cannot be corroborative of that of Anglin who is the boy that the offense was committed on for which this conviction is had.It is very forcefully argued that the trial court at least should have given certain special requests that were offered in behalf of the plaintiff in error for...