Shiflet v. State

• Decision Date: 14 July 1965
• Citation: 216 Tenn. 365,392 S.W.2d 676,20 McCanless 365
• Parties: , 216 Tenn. 365 David SHIFLET, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
• Court: Tennessee Supreme Court

Page 676

392 S.W.2d 676

20 McCanless 365, 216 Tenn. 365

David SHIFLET, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.

Supreme Court of Tennessee.

July 14, 1965.

Franklin Park, Jefferson City, for plaintiff-in-error.

George F. McCanless, Atty. Gen., Edgar P. Calhoun, Asst. Atty. Gen., Nashville, for the State.

CHATTIN, Justice.

David Shiflet, plaintiff-in-error, hereinafter referred to as defendant, was indicted, tried and convicted of murder in the second degree and sentenced to serve not less than ten nor more than twenty years in the State Penitentiary. His motion for a new trial was overruled and the verdict of the jury approved by the trial judge. He has perfected an appeal in error to this Court.

The only assignment of error is the evidence preponderates against the verdict of the jury and in favor of the innocence of the accused.

The rule in this State is a conviction in a criminal case will not be reversed by this Court on the facts unless it is shown the evidence preponderates against the verdict of the jury and in favor of the innocence of the defendant. White v. State, 210 Tenn. 78, 356 S.W.2d 411 (1962); McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

It is also an established rule the verdict of the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves any conflict in the testimony in favor of the insistence of the State. A verdict of a jury also removes the presumption of the innocence of the defendant; and, here, creates a presumption of his guilt and places the burden on him of showing the evidence preponderates against the verdict and in favor of his innocence. White v. State, supra; McBee v. State, supra; Holt v. State, 210 , tenn. 188, 357 S.W.2d 57 (1962).

This Court must review the record on appeal from the conviction in the light of the rule, 'the credibility of the witnesses and the conflicts in their testimony have been settled by the verdict of the jury which has been approved by the trial court.' Holt v. State, supra.

The facts are the defendant was driving his 1950 Model Chrysler automobile on Highway 11-E about one mile east of Morristown on Sunday afternoon, August 20, 1964. His automobile veered into the lane of on-coming traffic and struck a Volkswagen. The four occupants of the Volkswagen, Ernest Lane, age thirty-seven; his son, Donald, age three; and two stepchildren: Doris Sutton, age eleven; and David Sutton, age ten; were killed.

Sergeant Dewey Bales of the State Highway Patrol testified on the afternoon of the accident he had received a telephone call and as a result was preparing to look for the defendant when he learned of the accident. When he arrived at the scene of the tragedy, the defendant was standing on the side of the road. He led defendant to the patrol car. He smelled alcohol on defendant. The defendant staggered and talked with a thick tongue. Defendant told Bales someone else was driving his car and had disappeared. He admitted he had had two cans of beer.

Bales found a half pint whisky bottle with about an inch of whisky in the bottle on the floor of the car on the driver's side.

Bales was with the defendant approximately two and one-half hours. He was of the opinion the defendant was under the influence of an intoxicant.

The witnesses, Jim Jones and Paul West, smelled alcohol on defendant after the accident, and stated defendant acted like a drunk man. Jones stated defendant, 'was staggering all over the road.' West stated he based his opinion defendant was drunk on the odor of alcohol and defendant's 'walk and talk.'

Basil Brooks saw the accident. He was traveling about one hundred feet behind the Volkswagen. He saw defendant's car angle across the road into the path of the Volkswagen. It was necessary for him to pull to the side of the road in order to avoid colliding with the cars.

He saw the defendant and he did not smell alcohol or notice anything unusual about him except he was bleeding about his head.

Claudine and Shirly Potter were traveling behind the defendant prior to the accident. He was driving between thirty-five and forty-five miles an hour. They followed him for some distance and they did not notice anything unusual about his driving until his car pulled over to the wrong side of the road and struck the Volkswagen.

Mrs. Nancy Rines, a nurse, assisted in treating the defendant at the hospital where he was taken by Bales. She did not smell alcohol on defendant.

Dr. Powell M. Trusler testified he treated the defendant at the hospital. Defendant suffered a laceration to his head, a contusion and bruise on his left chest, a contusion of the upper abdomen, and numerous abrasions about his face. He stated defendant had a knot on his head the size of an egg which could have caused a brain contusion sufficient to have rendered him unconscious.

Dr. Powell did not smell alcohol on defendant. He stated one could not detect whether a person had taken any of the so-called 'knock-out pills.'

Defendant testified he had had no alcoholic drink during the day of the accident. He had taken one diet pill prescribed by a doctor to help him lose weight. He had, prior to the collision, been to Morristown to see his brother, but he was not at home. He could remember nothing from the time he left his brother's home until he was in the hospital. He had black-out spells when he was five years of age, but had had none since. He did not know how the whisky had gotten into his car. He did not remember talking with Sergeant Bales.

James Shiflet, defendant's father, had seen his son approximately an hour prior to the accident. He was not drinking at that time. He saw him at the hospital after the collision and he was not drinking then.

Grant Glasscock had seen defendant off and on the day of the accident and had last seen him about two o'clock P.M. Defendant was not drinking during the times he saw him.

Betty Shiflet, defendant's sister-in-law, had seen defendant about three o'clock P.M., on the day of the collision and defendant was not drinking at that time.

Jimmy Norton testified in rebuttal for the State. He stated he had seen the defendant, Glasscock and two other persons in a booth at a truck stop about one thirty o'clock P.M., on the day of the accident. He did not see any of these persons drinking but could smell the odor of alcohol. He stated he could not say the defendant was drinking at the time.

We think it must be conceded, from the about review of the evidence, the issue of whether the defendant was under the influence of any drug or intoxicant to the extent his ability to drive an automobile was impaired was for the jury to determine.

However, able Counsel for defendant contends: 'It is fundamental, in a criminal case, that the State must establish the defendant's guilt beyond a reasonable doubt, and in the present case that defendant was driving his automobile while under the influence of an intoxicant to the extent that he was not in full...