State v. Becton

• Decision Date: 30 April 1874
• Citation: State v. Becton, 66 Tenn. 138 (Tenn. 1874)
• Parties: THE STATE v. ED. BECTON et al.
• Court: Tennessee Supreme Court

66 Tenn. 138

THE STATE

v.ED. BECTON et al.

Supreme Court of Tennessee.

April Term, 1874.

FROM SHELBY.

Appeal from the Criminal Court.JNO.R. FLIPPIN, Judge.

Attorney-General HEISKELL for the State.

MOSS & JONES for defendant.

FREEMAN, J., delivered the opinion of the court.

Defendants were indicted and convicted in the Criminal Court of Memphis for the offense of robbing from the person.The jury returned a verdict simply of guilty as charged, and the Judge proceeded to pronounce sentence of death, from which there is an appeal to this court.

The sentence and finding on which it is based is under the act of 1865, ch. 5, sec. 6, providing that “whoever shall feloniously rob another, or steal from his person, shall, on conviction thereof, suffer death by hanging: provided, the jury before whom the offender is tried and convicted may, if they think proper, commute the punishment to imprisonment in the penitentiary for a period of not less than ten nor more than twenty-one years.”

The substantial facts of the case are as follows, from the statements of McBride, the party robbed: On Christmas morning, between 7 and 8 o'clock, as he was on his way to the city of Memphis, about half a mile from where he had crossed Wolf River ferry, and not more than perhaps a mile from the limits of the city, probably he met defendants, with three other parties.Two of the parties were armed with guns, one having a double-barrel shot-gun.One of the party said halt, as witness rode up, and asked if he had any money.He replied, very little.The parties crowded up around him in a boisterous manner, evidently being under the influence of liquor, and “on a Christmas drunk,” it being Christmas day.One of them caught witness by the collar and choked him, and another held a gun, cocked, to his head, while another took his pocket-book, containing money to the amount of one dollar and forty cents in fractional currency.Becton, one of the defendants, remarked, while holding the gun pointed at witness's head, “I believe I will shoot him anyhow,” and as witness started off, leveled his gun at him.Some of the party knocked the gun up, saying, “don't shoot him, we have got his money,” the gun going off when knocked up, but doing no injury.Lewis, the other defendant, struck the party with a brick, perhaps as he started off.McBride then went on to the city, found the sheriff, returned to Chelsea, or north Memphis, near where the robbery took place, found the defendants in a drunken, riotous crowd, and arrested them.

Several errors are assigned, which we proceed to notice so far as they present any matters deemed material to the decision of the case.

First, it is alleged there was error in admitting certain testimony of one Groves, and in remarks made by the court to the jury on the question of excluding or permitting the same to go to them for consideration.Groves proved on examination, in chief, that he knew defendants, and met them not far from the place of the robbery that morning; that when he saw them they were engaged in a quarrel with another man unknown to him.On cross-examination, in answer to questions of defendant's counsel in an effort to show he was mistaken as to identity of prisoners, he said he was certain it was Becton and Lewis, as he had known them for several years, and then adds: “When I saw them quarreling with the strange man, I rode up and told Becton, who had his gun drawn on him, to let him alone and not hurt him.”Defendants' counsel then asked the court to exclude from the jury what the witness had said in regard to the defendants having another difficulty with other parties, which the court refused to do, but went on to explain to the jury the purpose of admitting the testimony, and on what view it was competent.

As to the competency of the testimony objected to, we cannot see clearly that it was incompetent, as it did not show the existence of another crime, tending to lead to the conclusion that the defendants were guilty of the one with which they were charged, but only the circumstances under which the party saw them, and the facts that called his attention specially to them, and thus were legitimate on the question of his accuracy in asserting the identity of the defendants.It is not even shown that the act was criminal.It might have been innocent, as in self-defense, or it might have been, so far as we can see from what is before us, without any purpose to injure.However, be that as it may, the facts were brought out by defendants' counsel on cross-examination, and being thus presented by themselves, cannot be objected to or assigned as error.This is on the well-settled rule that a party cannot be permitted to ask a question, taking the chance of getting an answer for his benefit, and when he finds it against him, object to the matter thus brought out.He cannot thus experiment with a court.It is true, if it appeared that the question put to the witness had not tended to bring out the objectionable facts, and the witness's answer had not been a response to the question put, then the rule would not apply.But nothing of this kind appears, nor is the request for exclusion of the testimony based on such ground.There was no error, then in admitting this testimony, or in refusing to withdraw it from the jury.

But the court, in ruling on this question, went on to say to the jury that “what witness had said could not, and should not, be looked to by them for the purpose of showing the prisoners guilty of the crime for which they were on trial, nor any bearing whatever that way, but the fact of Groves having seen them under the circumstances testified to might be looked to as showing the opportunity of witness to see them, and that it was not a mere casual glance, but a fixed and attentive scrutiny, and for no other purpose whatever; that, as a general rule of law applying to this case, a person cannot be proven guilty of one crime by showing he had committed another.”It is now assigned as error, that this was in violation of the act of 1873, as being a verbal charge to the jury.

We have not been able to assent to this view of the question in this case.While we do not say there might not...