Sullivan v. State

• Decision Date: 25 November 1938
• Citation: 121 S.W.2d 535
• Parties: SULLIVAN v. STATE.
• Court: Tennessee Supreme Court

121 S.W.2d 535

SULLIVAN v. STATE.

Supreme Court of Tennessee.

November 25, 1938.

Error to Criminal Court, Cumberland County; John A. Mitchell, Judge.

Wilker Sullivan was convicted of murder in the first degree, and he brings error.

Affirmed.

C. E. Keyes and G. M. Deck, both of Crossville, for plaintiff in error.

W. F. Barry, Jr., Asst. Atty. Gen., for the State.

McKINNEY, Justice.

Wilker Sullivan, referred to herein as the defendant, has appealed to this court from a conviction for murder in the first degree, with a prison sentence of ninety-nine years.

Omitting the formal parts of the indictment, it charges that "Wilker Sullivan, heretofore, on or about the 21st day of October, 1937, in the County and State aforesaid, did unlawfully, feloniously, willfully, maliciously, deliberately, premeditatedly and of his malice aforethought assault one Hattie Sullivan with a dangerous and deadly shotgun, loaded, and did then and there shoot, wound, kill and murder the said Hattie Sullivan and did so commit murder in the first degree upon the body of the said Hattie Sullivan, against the peace and dignity of the State."

The facts of the case are few and undisputed. The defendant did not testify upon the trial of the case and introduced no evidence in his behalf.

Noah Sullivan, an older brother of the defendant and husband of Hattie Sullivan, testified that the defendant was thirty-two or thirty-four years of age, and during the months of June and July, 1937 he had been away from home in the State of Ohio. Defendant returned to Cumberland County on August 4, and took up his residence on the Hodges farm about 400 yards from the home of Noah Sullivan.

On the afternoon of August 21 defendant armed himself with a single-barreled, breech-loading shotgun and some high-powered shells, and walked to the home of his brother Noah, stopping just outside the front gate, which is 20 or 30 feet from the house, and called Noah out to the gate. When Noah got within 10 or 12 feet of defendant, according to the undisputed testimony of Noah, the following occurred:

"Q. What was the next thing said after you had gotten into the yard? A. Got to the gate?

"Q. Yes. A. He says, `Noah, who's doing this clearing here?'

"Q. Did you know at that time what piece of land he was referring to? A. Yes sir.

"Q. What did you tell him in response to that question? A. I said `I'm having the boys clear this off of a few sprouts.'

"Q. In referring to the boys, were you referring to your son? A. My son and my wife's brother.

"Q. Did they live with you and work with you? A. Yes sir.

"Q. Then what did he say after that? A. He asked me who was doing this clearing here and I says, `I'm having the boys do a little sprouting' and he says `I want them to stay off my land;' I says, `Why, Wilker, this here's my land, I've got a deed for it;' he says, `Who gave you a deed for it?' I says `My Dad' and he says `You're a God damn liar' and throwed down and shot.

"Q. Were you at that time inside of your yard? A. Yes sir.

"Q. Had the gate been opened? A. There had been a gate there but we had nailed slats across up to something like two and a half feet high.

"Q. At the time he raised his shotgun, did he say anything else? A. Never said anything else after he said I was a `God damn liar.'

"Q. What did he do? A. He shot.

"Q. Did it hit you? A. Yes sir.

"Q. Where? A. In the right arm.

"Q. Did you lose that right arm from that shot? A. Yes.

"Q. Its been amputated at the shoulder there? A. Yes sir.

"Q. Now, at the time he shot you in the arm, state what took place next? A. When he shot me in the arm, I whirled around and turned around and said `Lord have mercy, Wilker, you have shot my arm off' and when I turned around my wife was behind me some three to six feet and I didn't know she was there and when I whirled around and I seen the blood running down her face, she stood there something like three or four seconds and pitched over on her right side with her face back towards the house; I called her name three or four times and she never made me no answer.

"Q. How long did she stand before she fell? A. Something like three or four seconds, a very short time.

"Q. Did your wife ever speak to you after you turned? A. She never did and I called her by name two or three different times.

"Q. About how far behind you was your wife? A. Somewhere from four to six feet, not very far.

"Q. Any obstacle between Wilker Sullivan, where he was at that time, and your wife? A. Nothing, only that about two and a half foot fence and my arm.

"Q. Was the yard clear where you could see? A. Yes, on the inside and out.

"Q. How, after your wife fell, how long did you stay there? A. When I called her I wanted to get off from her and I walked somewhere from twenty to thirty feet further down to the right of my house.

"Q. After you started walking off, were you going away from the defendant or in what direction were you going? A. I was going away from her.

"Q. What took place after that? A. After I got started from 20 to 30 feet, he shot again."

Mrs. Hattie Sullivan only lived five or ten minutes, the doctor testifying that she died from wounds in her face, neck and breast when shot by the defendant. Noah Sullivan was unable to tell where the second shot struck. Noah was carried to the hospital where his arm was amputated at the shoulder. The record does not show any animosity on the part of the defendant toward Mrs. Hattie Sullivan; and it is the theory of the defendant that he was shooting at his brother and unintentionally killed his sister-in-law. After the homicide the defendant fled some 40 or 50 miles to Rhea County, where he was apprehended by the officers two weeks later.

The principal assignment of error in behalf of defendant complains of the following statement in the court's charge:

"If you find beyond a reasonable doubt, from the proof, that the defendant shot and killed Hattie Sullivan while he was attempting to perpetrate or commit murder in the first degree upon the body of Noah Sullivan, as murder in the first degree is herein defined to you, he would be guilty of murder in the first degree, or such degree of felonious homicide as you may find justified by the proof in the light of these instructions."

Prior to the adoption of the Code of 1932, a homicide committed under the foregoing circumstances would not be murder in the first degree. Bratton v. State, 29 Tenn. 103, 10 Humph. 103. With respect to the Bratton Case this court, in Kannon v. State, 78 Tenn. 386, 10 Lea 386, 389, made this observation: "This decision leads to the curious anomaly under the statute, that while murder committed in an attempt to perpetrate larceny, is murder in the first degree, yet the murder of one person in an attempt to commit murder in the first degree on another, would not be murder in the first degree."

In Sanders v. State, 151 Tenn. 454, 270 S.W. 627, authorities were cited to show that the Bratton Case was out of harmony with the decisions in the other states. To cure this defect in our s...