Tarver v. State

• Decision Date: 01 August 1891
• Parties: TARVER et al. v. STATE.
• Court: Tennessee Supreme Court

16 S.W. 1041

90 Tenn. 485

TARVER et al. v. STATE.

Supreme Court of Tennessee.

August 1, 1891

Appeal from circuit court, Dyer county; THOMAS J. FLIPPIN, Judge.

Indictment of Nathan Tarver and Woodville Tarver. Verdict of murder in the first degree. Defendants appeal. Affirmed.

Darnell Richardson & Coover, for appellants.

Geo. W Pickle, Atty. Gen., for the State.

LURTON J.

The appellants were jointly indicted for the murder of one Clarance Godale in Lake county, in April, 1889. Upon their application, the venue was changed to Dyer county, where upon trial, they were found guilty of murder in the first degree without mitigating circumstances, and sentenced to death. The facts antecedent to the killing were substantially these: The deceased lived upon the farm of James Harris. The appellants lived in Fulton county, Ky., on what is known as "Chute No. 8" of the Mississippi river. Fulton adjoins Lake county, Tenn. On Friday before the death of Godale, on Tuesday, and in the latter part of April, 1889 the deceased went to where the appellants were at work in a field, and said he was looking for work, and had heard that a man running a mill across the chute, and on Island No. 8, wanted a man, and stated that he wished to borrow a skiff to cross to the island. He was told by Nathan Tarver that he had no skiff fit for use, but that a neighbor, James Patterson, had given him the use of his skiff, and that, if he would return it in a reasonable time, he (Godale) might use it. Deceased, promising to return it within three hours, was permitted the use of Patterson's boat. It was not brought back as was agreed, and on the Sunday following Patterson complained of its loss, and was told by the Tarvers of the circumstances under which Godale had obtained it. They at the same time agreed to go in search of Godale the next day. The next morning the Tarvers learned that Godale had been on Island No. 8, and had gone down the river in the skiff. Nathan Tarver then went before a justice of Fulton county, and made affidavit that Godale had stolen the skiff. A warrant was thereupon issued for the arrest of the deceased upon this charge of larceny, and delivered to Nathan. This was in terms addressed to any sheriff, constable, coroner, jailer, marshal, or policeman in the state of Kentucky, and commanded such officer to arrest Godale, and take him before any magistrate of Fulton county, to be dealt with according to law. The appellants then mounted and armed themselves, and started in search of the deceased. Neither of them were officers of the state of Kentucky. Not finding Godale or the skiff within the county and the state of their residence, they crossed the border into the state of Tennessee. They say that when they crossed the line, and came within this state, they went to a Mr. Darnell, an attorney living in Lake county, for the purpose of advising with him as to the pursuit of the deceased; that they showed him the Kentucky warrant, and that he advised them that they "might pursue Godale, and, if we found him, make him pull the skiff back to Kentucky, and turn him over to the Kentucky authorities, but that, if he resisted arrest, they could not arrest him, but would have to have him arrested by the sheriff of Lake county." Leaving Darnell, who was not on the trial examined as a witness, they proceeded down the river to Tiptonville. So far we have followed the narrative as given by the appellants upon the witness stand. From a point one mile north of Tiptonville we are able to trace them through the testimony of others. At the point indicated, and upon Monday, the day before the killing, and the day of their departure in search of Godale, they were met by W. T. Simmons, who rode with them for a short distance in the direction of Tiptonville. They told this witness that Godale had stolen a skiff from them. In response to an opinion expressed by Simmons that if Godale saw them he would give them "the slip or the dodge," they replied, "if they got sight of him he would never steal another skiff." They were next seen by John Williams, who was asked about Godale. To him they said that "he had borrowed a skiff from them, and when they caught him they would kill the d---d son of b---h." They next saw a Mr. Bellew, the village blacksmith, who had known them for some years. They asked about Godale, and as to where he lived, and learned from this witness that he lived on the Glass farm, six or seven miles from and south of Tiptonville. To him they said that Godale "had borrowed a skiff from them, and had failed to bring it back." "When they caught up with him that they would kill him;" or that, "if he did not give an account of the skiff, they would kill him." On the same evening, and about sundown, and in same village, they said to a Mr. Farrer that Godale had stolen their skiff; "and, if we find him. he won't steal any more skiffs." Afterwards, as they were riding out of and south of the town, they were again seen by Farrer, who, observing that they were armed with guns, said to them, "You seem to be fixed, and you are going to take him in, are you?" to which they replied, "If we catch him, he will never steal another skiff." This witness says this was said in rather a jocular manner.

One of appellants was mounted on a mule, the other on a horse. Each was armed with a shotgun. From their own statements we learn that they stayed that night between Tiptonville and the home of Godale, at the house of one Malady. What was said or done there is not shown. The next morning they rode up to the gate of the witness Robert Gray, who lived within one mile of deceased. They obtained from this witness directions as to the way. They did not state to Gray anything as to their purpose. One hour after leaving Gray's in the direction of Godale's, witness saw them riding back past his house in a lope. Half an hour after seeing them this second time he heard that Godale had been killed. They saw on same morning, and before the killing, the witness McIntosh, and asked him to describe Godale's house particularly. Witness told them Godale was not at home. They replied: "Yes he is. The d---d s--n of a b---h came home yesterday." They seemed very mad, and witness said no more than to describe Godale's house. Half an hour afterwards witness heard of Godale's murder. They next met witness Defoe, who lived within 600 yards of Godale. They again asked about deceased, and were told that he (witness) had met him going down a lane with an axe on his shoulder. They left witness, going in the direction witness had seen Godale. They stated to Defoe that Godale had stolen their skiff, and "that if they found him he would be pretty apt to return it." The dead body of Godale was found in the lane down which appellants had gone in search of him. He had been shot to death. Shot wounds were found on left breast, and on under side of left arm, indicating that this arm had been uplifted at the time a charge of shot had been fired into his left breast and shoulder. The wounds had been made by gunshot in size two or three numbers under buckshot. His axe was found over the fence opposite his body, blade in the ground, and handle sticking up, as if thrown over the fence. It had rained the night before, and Godale's tracks were plainly visible in the mud, showing just where he (going north) had met appellants in the lane as they were riding south. Twenty yards north of where the tracks of Godale stopped, and from where his body lay, were the tracks of a mule and horse which had at that point turned to the right, and gone back out of the lane in the direction from which the tracks had come. In the fence, on a line with the body and these horse-tracks, were found a number of shot, showing them to have been a part of the fatal discharge, and to have come from one of the mounted men. There is no proof of horse or human tracks between the body of deceased and the point where the horsetracks appeared to have turned back out of the lane. The retreating horse-tracks were at once followed, and at a point some miles away the animals which had been ridden by the Tarvers were found abandoned in the woods. The pursuit showed that an effort had been made to return to Kentucky by passing between Redfoot lake and the road which passed through Tiptonville. In the flight a point had been reached where a wire fence in front and the lake on the east prevented further progress without abandoning the horses. In their panic they had left their horses, and continued the flight on foot. The next day the appellants were arrested at their home in Kentucky, and brought back to this state for trial.

Appellants were examined as witnesses in their own behalf. They admitted the killing of Godale, but assert that it was accidental. They say that they had no other purpose in pursuing deceased than to disarm and arrest him; that for this purpose they halted him in the lane, and ordered him to throw the axe over the fence, and hold up his...