Shields v. State

• Decision Date: 23 July 1954
• Citation: 197 Tenn. 83,270 S.W.2d 367,1 McCanless 83
• Parties: , 197 Tenn. 83 SHIELDS v. STATE.
• Court: Tennessee Supreme Court

Page 367

270 S.W.2d 367

1 McCanless 83, 197 Tenn. 83

SHIELDS v. STATE.

Supreme Court of Tennessee.

July 23, 1954.

Meares & Thomas, Maryville, for plaintiff in error.

Knox Bigham, Asst. Atty. Gen., for the State.

SWEPSTON, Justice.

Plaintiff in error was convicted of shooting a deadly missile into an automobile in violation of Code section 10825, and was sentenced to 60 days in the workhouse. He has perfected his appeal and assigned error.

The first assignment goes to the preponderance of the evidence against the verdict.

Plaintiff in error admits that he fired a pistol shot into the rear fender of the automobile of one Ted Denton, and that, as the facts have since been developed, he had no technical right to do so, but in order to overcome the presumption of guilt he insists that he did so in good faith in an effort, as he then believed, to prevent the escape of a felon, and hence insists there is no evidence of malice.

The State proved that on the night of May 9, 1953, Ted Denton, a single man, 26 years of age, while accompanied by a Miss Maude Spencer in his automobile, had driven into the grounds of the Gateway Restaurant, where they intended to have dinner. They had been there a few minutes when he backed his car to the kitchen door at the side of the building, and ordered dinner. As he started out towards the highway, two shots were fired at his car, one striking the rear fender, the second, the front fender. He speeded up and drove rapidly on to the highway and down a short distance to another restaurant, where he reported to his friends there what had happened, and called the Sheriff and insisted that his car be searched for whisky. He had been fined previously for having a small amount of whisky in possession. It was definitely established that he had none on this occasion.

Two witnesses who had seen the shooting at the Gateway Restaurant came to this other restaurant and told Denton that the shots were fired by plaintiff in error and they so testified.

Shortly afterwards the accused, who was a constable, and another constable named Gheens, according to Denton, rode by this latter restaurant shortly thereafter, and Denton waived and yelled at them, but they did not stop. Neither that night nor at any later time did they arrest Denton, although some weeks later a warrant was procured for Denton, but Gheens said he did not serve it because he learned of the present prosecution, and did not want it to appear to be retaliatory. Denton was corroborated by his young lady companion, as well as by the cook at the Gateway Restaurant, as to his having ordered dinner at the kitchen door.

It is plaintiff's insistence that Denton had a reputation for handling whisky and that he had raided him previously; that on this evening he received information from a reliable source that Denton was about to pull out from the Gateway Restaurant with a load of whisky; that accompanied by the other officer, they went to the Gateway Restaurant, he going to the rear and Gheens going to the front of the building, and that as they came within the proximity of Denton's car, he executed some old maneuvers and then started off at a high rate of speed, at which point the accused said that he fired at the rear tire. He said also that it looked to him as if Denton was trying to hit or run over Gheens with his car, was an additional reason why he fired the shot. He testified that he fired only one shot and Gheens testified that Gheens fired the other shot, but they were contradicted by two other witnesses who said the accused fired both. He claimed also that he sought to find Denton immediately to arrest him, but was unable to do so. It does not appear that he made any effort the next day, or at any time later, to do anything further about the matter.

When asked for the name of the informer, he refused to disclose the name and stated in the early part of his examination that he refused to do so. When finally required to do so by the Court, he gave the surname of an alleged individual, but he was unable to give any information about this individual as to where he had been or was at that time, or at the time of trial.

The jury rejected the plaintiff in error's evidence and we do not think that the evidence preponderates against the finding of the jury.

The next three assignments arise out of the following situation.

It was the insistence of the plaintiff in error's counsel that plaintiff in error's information that a felony was being committed would justify an arrest without a warrant. He therefore asked plaintiff in error to tell what happened, and so on, on that occasion. The State objected to his being allowed to state what his information was until he had disclosed the name of the informer. After argument between counsel, the Court said:

'Now, I want to warn Mr. Shields that under the law that he would have to tell who it is. But now, of course, I don't think he would have to tell it now. Because this is without a search warrant, they would have a right to go into whoever it is and know whether or not as to his credibility, and as to who told him, and have a right to get this person to contradict. I want to warn you that, but now, I'll allow you to answer the question.'

In other words, the Court ruled that plaintiff in error could relate what information he had at this time without disclosing the name of the informer, but that eventually he would have to disclose it. At this point, after some further discussion between Court and counsel, the witness flatly refused to disclose the name. After some further argument the Court said this:

'I want to warn Mr. Shields. Now, you are in trial here in a serious case, and this makes a different situation. It takes it away from any secrets that you might want to keep for anybody. You are on trial in a serious case and it's your duty to let this jury know the facts so that they can decide this case and do what's right and fair. And it's in your own behalf for you to tell who gave you the information. That's in your own behalf. This Court is not trying to get you to do something that's wrong, but under the law you are going to have to do it.'

The witness was then allowed to state to the jury the information that he had obtained from this undisclosed informer, and after he had finished, he was asked on cross-examination to name the informer. Whereupon the Court said:

'Mr. Shields, in this kind of a case, I'll have to ask you to answer the question. I can understand, Mr. Shields, I can understand your reluctance, and...