Tate v. State
| Decision Date | 01 March 1967 |
| Citation | 219 Tenn. 698,23 McCanless 698,413 S.W.2d 366 |
| Parties | , 219 Tenn. 698 Kellis M. TATE, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error. |
| Court | Tennessee Supreme Court |
Burkett C. McInturff, Kingsport, for plaintiff in error.
George F. McCanless, Atty. Gen., and Thomas E. Fox., Asst. Atty. Gen., Nashville, for defendant in error; John C. Wooten, Asst. Dist. Atty. Gen., Kingsport, Prosecuted the case for the State in the trial court.
Kellis M. Tate appeals from a conviction of murder in the second degree for which he has been sentenced to serve ten years in the State Penitentiary. This conviction is for murder of one, Charles, Ogle, and in this opinion Kellis M. Tate will be referred to as defendant or by name and Charles Ogle as deceased or by name.
Tate and Ogle were both employed by Lambert Brothers Construction Company. Tate was the office manager of the Kingsport, Tennessee office. Ogle, having charge of certain phases of the work in East Tennessee and Southwestern Virginia, set up an office for himself in this Kingsport office in June 1965. This resulted in Ogle having a private office just down the hall from where Tate worked.
It had been the custom of the employees of the Kingsport office to come to work at 8:00 a.m. on each work day. A short time after Ogle came to the Kingsport office he instructed Tate to come to work at 7:00 a.m. as he (Ogle) felt the company might be losing business having no one to answer early telephone calls. Tate testified, since he was often alone in the office from 7:00 a.m. to 8:00 a.m. and at times had a large sum of money on hand, he brought a pistol to the office for protection. That he kept the pistol in the safe and upon arriving about 7:00 a.m. would put it in his pocket. Later in the morning, after the other employees had arrived, he would put the pistol back into the safe. One of the employees who worked under Tate testified he had never seen a pistol in the safe.
The salary checks for the employees of the Kingsport office were mailed from the Knoxville office to Kingsport. On 30 August 1965 these checks arrived but the check due Tate was not enclosed. Tate called the Knoxville office and was told to see Ogle. This was shortly after 8 a.m. on this day. Employees of this office testified Tate slammed the receiver back on the telephone and rushed to Ogle's office. Tate testified he went to the office but in a normal manner.
Tate testified he found Ogle in his office seated behind his desk and was asked by Ogle to come in and shut the door. There were no other persons present. Tate said he inquired about his check and Ogle gave him three checks, to-wit; salary check, vacation pay due and termination pay due. Tate said he asked Ogle 'Why are you doing this to me.' To which Ogle replied it was not his idea. Tate replied, 'You are a liar,' and added 'you are taking my job and giving it to one of your friends'. Ogle, arising from his chair, started around the desk toward Tate in a threatening manner with his body in sort of a crouch. Tate removed the pistol from his left front pocket and shot Ogle once in the left chest. Tate then testified as follows:
Q. And what happened after he was shot?
A. Well, he took about a half step more foward and then he stopped. He throwed both his arms up across his chest, his fists were closed, and then he backed up around the desk.
Q. And where was he when he fell?
A. Well, he was behind the desk, almost parallel with the desk and the wall. He didn't fall, he went down on his knees and hands--went down on his hands and knees, and his hat fell off.
Ogle died within minutes and his body was found lying on the floor behind his desk with his head at one end of the desk and his feet at the other. An autopsy revealed the bullet entered the left chest and from this point followed a downward course.
Tate testified Ogle, prior to 30 August 1965, had related to him incidents of where Ogle had had employees of the company fired. These incidents were related in such a manner as to indicate Ogle would under such circumstances, if necessary, do physical violence to the employee being fired. Tate testified, Ogle being the larger and stronger man, he was afraid if Ogle got to him when he came around the desk that morning he (Ogle) would break his (Tate's) neck. On cross-examination Tate said when he went to Ogle's office the pistol in his pocket had the safety catch on and before shooting Ogle he released the safety.
The assignments of error are as follows:
1. The evidence preponderates against the verdict and in favor of the innocence of the accused.
2. The defendant was not afforded an opportunity to be present at the time the autopsy was made upon the body of the deceased and he was denied a copy of the autopsy report.
3. Police officers talked with the defendant immediately after the incident took place without informing him of his constitutional rights not to make a statement nor of his constitutional rights to counsel.
4. Four special requests to the trial judge's charge relative to the defense of self defense in that the deceased was a much larger and stronger person than the defendant were refused.
The theory of defendant was that he fired in his own necessary self-defense. The jury rejected this theory. We think this evidence clearly makes a question for the jury both on the issue of guilt or innocence and upon the issue of whether it was second degree murder or manslaughter. The first assignment of error is overruled.
An autopsy was had on the body of deceased about 10:00 a.m. on the day of the murder. Under the second assignment of error defendant alleges it was error to introduce the results of this autopsy, since he was not permitted to be present at the time of the autopsy. In support of this claim defendant cites that part of Article I, section 9 of the Constitution of Tennessee permitting defendant to be present at all stages of the proceedings against...
To continue reading
Request your trial
-
State v. Eads
...Court), 24 Misc.2d 755, 204 N.Y.S.2d 827, 835; State v. Superior Court, 106 N.H. 228, 208 A.2d 832, 833, 7 A.L.R.3d 1; Tate v. State, 219 Tenn. 698, 413 S.W.2d 366, 369; Silver v. Sobel, 7 App.Div.2d 728, 180 N.Y.S.2d 699, 700; State v. Foster, 242 Or. 101, 407 P.2d 901, 903. See also Annot......
-
Braziel v. State
...has not progressed beyond general inquiry, is not forbidden and statements made in those circumstances are admissible. Tate v. State, 219 Tenn. 698, 413 S.W.2d 366; State v. Morris, 224 Tenn. 437, 456 S.W.2d 840; Ballard v. State, 2 Tenn.Cr.App. 431, 454 S.W.2d 193; Gordon v. State, supra; ......
-
Gordon v. State
...has not progressed beyond general inquiry, is not forbidden and statements made in those circumstances are admissible. Tate v. State, 219 Tenn. 698, 413 S.W.2d 366; State v. Morris, 224 Tenn. 437, 456 S.W.2d 840; Miranda v. Arizona, Because of the conflict between her statement to the next-......
-
People v. P.
...190, 228 A.2d 568 (1967); Evans v. United States, 377 F.2d 535 (5th Cir., 1967); Williams v. United States, supra; cf. Tate v. State, Tenn., 413 S.W.2d 366 (1967); State v. Drew, Wash., 425 P.2d 349 The defendant argues, however, that the questioning by the police officer--without any more-......