Smith v. State
| Decision Date | 09 September 1960 |
| Citation | 207 Tenn. 219,338 S.W.2d 610,11 McCanless 219 |
| Parties | , 207 Tenn. 219 Franklin D. SMITH, Plaintiff in Error, v. STATE, Defendant in Error. |
| Court | Tennessee Supreme Court |
Sidney Davis, Walter E. Fischer, Clinton, for plaintiff in error.
Thomas E. Fox, Asst. Atty. Gen., for the State.
Plaintiff in error Franklin D. Smith, hereinafter called defendant, was convicted of murder in the first degree without mitigating circumstances and sentenced to death by electrocution. His accomplice, George Baker, was found guilty of murder in the first degree and sentenced to serve 50 years in the State Penitentiary. Baker has not appealed.
There are 15 assignments of error, the first one of which relates to the evidence, it being alleged that there is no evidence to support the verdict of the jury. We have examined the bill of exceptions carefully and are satisfied that there is ample evidence to sustain this conviction and that the evidence does not preponderate in favor of the innocence of the accused but preponderates heavily against his innocence.
The bill of exceptions contains slightly over 600 pages. It would serve no useful purpose to undertake to review all of this testimony in detail. Accordingly, we will give only a brief summary of the salient parts of the evidence.
Jess Fessler was shot from ambush about 1:25 P.M. on June 8, 1959, and died almost immediately without making any statement. The bullet from a 30-30 bolt action Stevens rifle entered the right portion of the upper part of his body and came out the front side, severing the aorta, causing him to fall face down at the spot where he had been standing. At the time he was engaged in a clearing operation along the creek which runs through Lake City and which was involved in the Lake City Flood Control near the town of Lake City in Anderson County; there was much of trees and bushes along both banks of the creek.
The record shows that the defendant Smith had been charged with the offense of having robbed the deceased sometime prior to this homicide and he had made overtures to the deceased that if the deceased would agree to drop the prosecution, defendant would pay back in installments the amount of money which had been taken from deceased, but that these efforts were unsuccessful. Even on the morning of the homicide it is shown that the defendant appeared at one part of the clearing operation and made inquiry as to where Mr. Fessler was but did not find him; the witnesses remembered that defendant Smith was in a 1958 black and yellow Ford automobile and that there was another man in the car who remained in it but whom they could not see to the extent that they could recognize him. It further appears that this same car appeared about a half a mile away at another part of this clearing operation and that George Baker, the accomplice, was the one who made inquiry about Fessler, but that there was another man who remained in the car and was not seen by the witnesses at this location.
It is shown that in May immediately before this homicide a stranger purchased a rifle of this description from a pawn shop in Indianapolis, Indiana, although this rifle did not have a serial number on same. The salesman testified in person at the trial and identified Smith as fitting the description of the purchaser of the rifle.
The Lake City High School is located near this creek and between it and the creek is a large amount of underbrush and briars and some trees, and at the time of the homicide the deceased was working with his crew on the opposite bank. The defendant and his accomplice contrived and carried out the plan that Baker would steal an automobile at Clinton, Tennessee, in Anderson County, then drive to the side of the high school building where Baker would await the commission of the homicide and then the two would drive rapidly away. Smith went over into the bushes and fired the fatal shot from a concealed position in the underbrush and was then seen running from the spot. Several of the men working for Fessler, the deceased, heard the shot, saw the victim fall face down and saw a man running away from the bushes until he disappeared from view. No one could testify that it was the defendant who was running away but he was identified by several witnesses who described the olive drab or greenish colored clothes he had on, the dark or black color of his hair (as he was wearing no hat), the approximate height and weight; these descriptions fitted descriptions given by others who had seen him that morning as well as witnesses who saw him later in the afternoon after the commission of the homicide. When he was arrested that same afternoon there were scratches on his legs.
After the event, these two men were seen riding around in various sections of Anderson County and an adjoining county and were finally arrested by the Sheriff where they had stopped along the highway. The Sheriff testified that the defendant's automobile was saturated with gasoline, both the seats, floor and the inside of the body as well, and that when he put his hand on Baker's back his shirt was saturated with gasoline.
The inference could have been drawn from this fact that, having gotten rid of Fessler, Smith intended to get rid of the only other person who might be a witness against him in the robbery case by setting fire to the automobile with Baker in the same; but irrespective of that inference, there is ample evidence of guilt without this particular inference.
Baker made a statement or confession, whichever it may be called, which was introduced in evidence but the court repeatedly instructed the jury that it was not competent against Smith, but Baker also took the stand and testified to the details of the course of action of the defendant and of himself, all of which coincided with his confession or statement and with the other various bits of evidence otherwise, except that in his testimony Baker tried to exonerate himself by claiming that he was afraid of Smith and acted under compulsion.
Another item of evidence was that the rifle used by the defendant was found in the woods a short distance from the road where Baker told the officers it had been thrown by the defendant Smith after the homicide. Also, the investigating officers found a footprint or shoetrack at the spot witnesses located as being the point where Smith was standing when he fired the shot. This print was in soft ground and indicated the person was pushing down more or less with the forepart of the shoe rather than the whole foot; it was preserved by someone having placed a board over it and when the two men were...
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