Sparkman v. State

• Decision Date: 12 February 1970
• Citation: 469 S.W.2d 692
• Parties: Robert T. SPARKMAN, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
• Court: Tennessee Court of Criminal Appeals

Page 692

469 S.W.2d 692

Robert T. SPARKMAN, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.

Court of Criminal Appeals of Tennessee.

Feb. 12, 1970.

Rehearing Denied March 11, 1970.

Certiorari Denied by Supreme Court Sept. 8, 1970.

James F. Neal, and William C. Wilson, Nashville, for plaintiff in error.

George F. McCanless, Atty. Gen., Robert F. Hedgepath, Asst. Atty. Gen., Nashville, James M. Porter, Dist. Atty. Gen., Springfield, for defendant in error.

OPINION

OLIVER, Judge.

The defendant below, Robert T. Sparkman, was convicted in the Circuit Court of Robertson County of (1) unlawfully carrying a pistol, for which he was sentenced to pay a fine of $50, (2) assault, for which he was sentenced to pay a fine of $250 and be imprisoned in the County Jail for 11 months and 29 days, and (3) shooting into a storehouse, for which his punishment was fixed at a fine of $50 and imprisonment in the County Jail for 12 months. The court ordered the two jail sentences to be served concurrently. His motion for a new trial being overruled, the defendant is before this Court upon appeal in the nature of a writ of error duly perfected.

In his Assignments of Error here, the defendant contends, as he did in his motion for a new trial, that the evidence of his insanity at the time of the offenses charged preponderates against the verdicts of the jury and in favor of his innocence, and (2) that the trial court erred in denying his motion for a mistrial, and for a new trial, because the State attempted to impeach him 'by eliciting on cross-examination testimony of prior acts of misconduct not amounting to convictions of an offense involving moral turpitude.'

We dispose of the second Assignment of Error immediately. The record shows that, in each instance of the defendant's cross-examination complained about, the court promptly sustained his objections thereto.

In considering the first Assignment of Error, we are bound by the rule, stated and restated over and over by our Supreme Court and this Court, that a jury's verdict of guilt, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in the evidence in favor of and establishes the State's theory of the case. Under such a verdict, the presumption of innocence, which the law accords an accused prior to conviction, disappears and is replaced by a presumption of guilt which puts upon him the burden of showing upon appeal that the evidence preponderates against the verdict and in favor of his innocence. We may review the evidence only to determine whether it preponderates against the verdict and, in doing so, we must take the verdict as having established the credibility of the State's witnesses. The verdict will be disturbed on the facts only if the evidence clearly preponderates against it and in favor of the innocence of the accused. Gulley v. State, 219 Tenn. 114, 407 S.W.2d 186; Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768; Webster v. State, Tenn.Crim.App., 425 S.W.2d 799; Brown v. State, Tenn.Crim.App., 441 S.W.2d 485.

The rule that the credibility of the witnesses and conflicts in the testimony are all settled by the verdict of the jury, 'makes unnecessary and indeed, inappropriate, a detailed discussion of that evidence, pro and con, * * * in stating what we conclude the material facts to be as established by that testimony.' Hargrove v. State, 199 Tenn. 25, 28, 281 S.W.2d 692, 694; Morrison v. State, 217 Tenn. 374, 397 S.W.2d 826, 400 S.W.2d 237.

We summarize the material evidence. On the morning of December 3, 1966, the defendant and his wife's cousin, one Harley Bradley who lived with them, and another man identified in this record only as the 'Kirkham boy,' started in the defendant's pickup truck to a wholesale produce establishment in Bowling Green, Kentucky to buy supplies for his restaurant. He also took along two pistols and a double-barreled shotgun which, as he says, he intended to sell to a gun dealer located near the State line.

Enroute they stopped at Lewis Rogers' Shady Park Inn, and the defendant and Kirkham went in for a beer; Sparkman ordered one for each of them and seated himself in a booth. He then approached a table occupied by two other customers and proceeded to crumble one's crackers into his bowl of beef stew. When proprietor Rogers and this customer remonstrated, the defendant said he would pay for it and gave Rogers fifty cents. When this customer said 'something else smart' to the defendant, he slapped the customer in the face. Rogers remonstrated further with the defendant and told him he would have to leave, and he did so.

Shortly thereafter, about noon, the defendant and his companions stopped at the Bryan and Whitson Cafe. They each ordered a bottle of beer, which the defendant paid for. While they were drinking their beer and playing the juke box, co-proprietor J. H. Bryan entered the establishment. At the sight of Bryan, the defendant suddenly pulled a .22 caliber pistol and began shooting. One shot was close over Bryan's head. Thinking that the gun was a toy cap pistol, Whitson told the defendant to put it in his pocket and he did so. Then, seating himself at the counter opposite where Bryan was washing some glasses, the defendant told him 'I don't like you. You have trouble with everybody that comes in here. I'm going to shoot you.' The defendant then pulled another pistol of larger caliber and began shooting in Bryan's direction; after the first shot, the defendant started crawling across the counter toward Bryan, and the next shot hit the deep-freezer. When Bryan ran out of the establishment, the defendant fired a shot through the cash register, then went outside and got his double-barreled shotgun out of his truck and fired both barrels into the store's two front plate glass windows. He and his companions then got in his truck and left. Two or three days later he returned and made arrangements to pay for replacement of the windows, and paid the bill when the work was completed.

About 1:30 or 2:00 p.m. the same day, the defendant, who was driving his truck, and his companions, again stopped at Lewis Rogers' Shady Park Inn. Rogers had heard about the defendant's shooting spree at the Bryan and Whitson Cafe, went outside when he drove up and told him he would not be permitted entrance on that account, because all his customers then present had heard about the shooting and would leave if he went inside. The defendant denied that he had shot up any place of business. When Rogers passed between his automobile and the defendant's truck, the defendant pulled forward and almost pinned Rogers between the two vehicles. Then an altercation occurred between the defendant and two men who came out of the Inn, during which one of them took the defendant's .22 caliber pistol out of his hand after a shot had been fired, and the other man took the defendant's shotgun out of his truck and unloaded it and threw it across the street. Rogers took charge of the shotgun and pistol and turned them over to investigating officers that afternoon. When the defendant started to leave, he bumped his truck into a small fireworks stand on the premises and told Rogers to 'Move that car.'

Prior to the incidents related above, the defendant had been a patron of both establishments. He had never misconducted himself in any way. Rogers testified that during the morning visit to his establishment, the defendant was not drunk but looked 'kinda funny,' had a 'glazed look' in his eyes, looked 'sort of crazy,' and 'didn't seem to know what he was doing.' And Bryan testified that on a former occasion when the defendant brought whiskey into his care he took it outside when requested to do so. Referring to the incident at the Bryan and Whitson Cafe, Mr. Whitson testified that the defendant 'just seemed to go crazy,' acted 'like a wild man,' 'like he was completely unaware of what he was doing,' and, although they were friends, 'I tried to talk to him and he wouldn't even pay no attention to me.'

The defendant testified that he remembered nothing from the time he ordered his second beer at Rogers' Shady Park Inn until he awoke in jail that afternoon, that he suffered a complete lapse of memory in the interim; that he had mental difficulty while in the military service, after falling off of a truck and being hospitalized for 87 days during which he was given insulin shock treatments and placed in a psychopathic ward for three weeks and was then treated by a psychiatrist; that after return to civilian life he had sought and obtained mental treatment several times, including consultation with and examination by a neurologist and a psychologist, and that subsequently a veterans' hospital diagnosed his condition as 'scleroderma' ('A disease characterized by diffuse or circumscribed rigidity and hardness of the skin.' Webster's International Dictionary, Second Edition); that his memory had been failing; and that following the events in question he consulted with Dr. Otto Billig at the suggestion of his defense counsel.

Dr. Otto Billig, an eminent and widely known psychiatrist, who had served several years as resident instructor in psychiatry at the Duke University Medical School, is a member of the Psychiatric Examining Board of the American Medical Association and the American Psychiatric Association, and has been an associate professor at Vanderbilt Medical School teaching psychiatry since 1948, and also has engaged in the private practice of psychiatric medicine since 1937, testified that he examined the defendant on December 14 and 21, 1966, for legal evaluation only upon referral by his attorney; that he talked to the defendant about his past life and considered the history he gave; that he also considered the report of a psychologist and a neurosurgeon to whom he sent the defendant for examination; that 'scleroderma' is a 'thickening of the skin' and does not affect mental conditions;...