Swain v. State
| Decision Date | 07 October 1966 |
| Parties | , 219 Tenn. 145 Bernard W. SWAIN, alias Bishop St. , Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. |
| Court | Tennessee Supreme Court |
James T. Havron, Nashville, for plaintiff in error.
George F. McCanless, Atty. Gen., Edgar P. Calhoun, Asst. Atty. Gen., and Harry G. Nichol, Dist. Atty. Gen., Nashville, prosecuted case for State in trial court, for defendant in error.
This appeal comes from the Criminal Court of Davidson County, Tennessee. The parties will be referred to herein as they appeared in the trial court; that is, Bernard W. Swain, alias Bishop St. Psalm, plaintiff in error, as defendant, and defendant in error as the State.
At the January, 1964 Term of the Criminal Court of Davidson County, Tennessee, the defendant was charged by presentment with the violation of T.C.A. § 39--4301, which reads in pertinent part, as follows:
'Threats for purpose of extortion or obtaining action--Penalty.--If any person, either verbally or by written or printed communication, maliciously threaten * * * to do any injury to the person, reputation or property of another, with intent thereby to extort any money, property, or pecuniary advantage whatever, or to compel the person so threatened to do any act against his will, he shall, on conviction, be punished by imprisonment in the penitentiary not less than two (2) years nor more than five (5) years.'
The presentment charged that the defendant had threatened to do injury to the business of one Johnny Beazley, owner and operator of Johnny Beazley's Falstaff Distributing Company, by instituting a boycott among the colored members of the community, and that defendant received from the aforementioned Mr. Beazley the sum of $3,000.00, in cash, and a check for $1,200.00, supposedly for advertising in a publication owned, published and distributed by the defendant, and known as 'The Epic', in order to end the boycott. The boycott, it is charged, was instituted under the guise of an organization called 'The Nashville Business Men Association', of which the defendant was President and Chairman. The defendant pleaded not guilty to the charge against him.
On November 15, 1965, the defendant filed a motion for a change of venue. On November 17, 1965, the defendant's motion for change of venue was overruled, to which action defendant's counsel excepted. On November 18, 1965, the defendant was brought to trial for the crime charged in the previously mentioned presentment. On November 19, 1965, the jury returned a verdict finding the defendant guilty of extortion, in violation of T.C.A. § 39--4301, and fixed the defendant's punishment at a period of not more than four years. On that same date, the trial judge entered a judgment in accord with the jury's verdict, and sentenced the defendant to not more than four years nor less than two years in the State Penitentiary. On December 20, 1965, the defendant filed a motion for new trial, which was amended on January 14, 1966. The motion for new trial was subsequently overruled. Appeal has been timely perfected to this Court.
Defendant's first three assignments of error in this Court urge that the evidence preponderates against the jury's verdict of guilty. In order to give due consideration to these assignments of error, it is necessary to briefly summarize the evidence contained in the Bill of Exceptions filed in this Court. The main witness for the State, Mr. Johnny Beazley, testified that on or about January 2, 1964, the defendant visited his office and demanded that Mr. Beazley hire three additional Negro salesmen. Mr. Beazley objected, on the grounds that he could not hire any more employees unless he fired others to make room for them, and that, at that time, about fifty per cent of his employees were Negroes. The defendant, at that time, threatened Mr. Beazley, that 'This is war'. On or about the following Monday, Mr. Beazley learned from some of his salesmen that a boycott against his business was being conducted by Negro retailers in the Nashville area, and that certain handbills were being distributed urging these retailers to refuse to buy or sell Falstaff Beer until Mr. Beazley hired more Negro salesmen. These handbills purported to be published by The Nashville Business Men Association and stated that, for further information, one should call Epic magazine. Mr. Beazley further testified that at about 5:00 P.M. that same day, he received a telephone call from the defendant, who asked him to meet the defendant at Price's Dinner Club, if he would like to stop the boycott. Mr. Beazley went to the aforementioned Dinner Club, where he was met by the defendant and Mr. Price, and was frisked by the defendant in order to ascertain whether or not Mr. Beazley had a tape recorder. Thereafter, discussion took place during which Mr. Beazley agreed to hire one additional Negro salesman and, after the defendant's statement that he had incurred a tremendous expense in the boycott, Mr. Beazley offered to pay $300.00 or $400.00 to cover it. To this the defendant, according to Mr. Beazley's testimony, replied that it would take at least $3,000.00 to cover his expenses, and suggested that Mr. Beazley take additional advertising in Epic magazine; that this advertising would cost $300.00 a month and that a prepayment of four months would be required. After Mr. Beazley agreed to this, the defendant instructed Mr. Beazley to accompany him to a meeting of The Nashville Business Men Association, but assured Mr. Beazley that this was a mere formality. Mr. Beazley testified that prior to this, he had paid only $81.50 a month for a half-page of advertising in defendant's magazine. Mr. Beazley further testified that the defendant insisted that he pay him the $3,000.00 in cash, rather than by check. This testimony of Mr. Beazley is corroborated to a large extent by the testimony of his employee, Mr. Sbuttoni, and a Miss Helen Sykes.
The defendant, himself, did not testify, but several Negro businessmen did testify. From their testimony, it is apparent that The Nashville Business Men Association had not actually met prior to the boycott, and that several of them did not even know of the boycott until they were invited to the meeting Mr. Beazley attended the night after it had begun. All of these Negro business leaders testified, emphatically, that they had received none of the $3,000.00 paid by Mr. Beazley, nor did they know anything of the $3,000.00 paid by Mr. Beazley.
From this evidence, contained in the Bill of Exceptions, it becomes apparent that there is no merit in these first three assignments of error for clearly the evidence...
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