Taylor v. State

• Decision Date: 10 May 1963
• Citation: 16 McCanless 187,212 Tenn. 187,369 S.W.2d 385
• Parties: , 212 Tenn. 187 John TAYLOR v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 385

369 S.W.2d 385

16 McCanless 187, 212 Tenn. 187

John TAYLOR v. STATE of Tennessee.

Supreme Court of Tennessee.

May 10, 1963.

Rehearing Denied July 15, 1963.

William D. Grugett, Covington, for plaintiff in error.

George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Nashville, for the State.

BURNETT, Chief Justice.

Taylor was convicted of an assault with intent to commit manslaughter and sentenced to serve from one (1) to five (5) years in the State penitentiary and to pay a fine of $500.00. From this sentence he has seasonably appealed, able briefs have been filed and arguments heard. After a thorough study of the matter, we now have the case for disposition.

As a result of an argument and a cuss fight, concededly, and claimed self-defense because one Hennings was attacking him with an ax, Taylor shot Milton Hennings through the leg with a pistol on February 15, 1961. Two other shots were fired at Hennings but apparently did not hit him. The difficulty arose between these two men who were cutting wood on Taylor's brother's farm. Taylor's testimony is to the effect that Hennings cursed him and that an argument ensued and that Hennings was attacking him by advancing towards him with an ax and that he fired these shots to discourage this assault upon him. This was denied by Hennings. He testified that he did not start the argument or threaten the defendant with an ax, but admitted that he might have cursed him.

This record is in the narrative form and it is not necessary for us to go into any greater detail as to the facts shown than above, because there is no claim (very unusual) that the evidence preponderates against the verdict or that the evidence shows that the attack was made in necessary self-defense by Taylor. The testimony here though made an issue for the jury, and it is up to this body to determine which of the witnesses they shoudl believe on the one side or the other. When the jury has thus determined the matter they resolve the conflicts in the testimony and the credibility of the witnesses. This is their duty rather than that of the court. Hargrove v. State, 199 Tenn. 25, 281 S.W.2d 692.

There are two or three rather interesting questions raised in this lawsuit. It is argued that the trial judge committed prejudicial error in allowing the counsel for the State to cross-examine a certain character witness to the effect that did he know that Taylor had been arrested for gambling and had fought with the arresting officers when he was taken into custody for this offense. This was objected to but the objection was overruled, and we think properly so. Here a witness, a character witness, testified as to the good character of his brother and then after he had done so it was entirely proper to question him about certain charges or rumors of misconduct that he had heard, facts known to him, etc., for the purpose of testing the value of the witness's evidence in chief. Crawford v. State, 197 Tenn. 411, 417, 273 S.W.2d 689.

It is likewise said that the trial judge erred in failing to instruct the jury that the evidence so elicited on this cross-examination could be considered only by them for the purpose of determining the credibility of the character witness and that it could not be considered on the question of guilt or innocence of the plaintiff in error. Trial judges are required to make affirmative instructions upon every issue raised by the proof. Myers v. State, 185 Tenn. 264, 206 S.W.2d 30. Of course, the word 'issue' when thus used means facts put in controversy by the pleadings. Whether or not a character witness took into consideration the acts of Taylor under the circumstances about which he was queried is not put in controversy by the indictment or by the plea of not guilty. It is not in controversy at all. The only question is whether the trial judge should have instructed the jury of the purpose for admitting it into evidence. His failure to so instruct the jury is not such an error as is reversible or fundamental. Webb v. State, 140 Tenn. 205, 203 S.W. 955, 15 A.L.R. 1034; Bishop v. State, 199 Tenn. 428, 287 S.W.2d 49. The statute, § 40-2518, T.C.A., requiring trial judges to charge juries relative to all grades or classes of offenses included in the indictment without a request supports the theory of the State in this particular.

This statement is further supported by a brief quotation from Poole v. State, 61 Tenn. 288, 294, 295, wherein this Court a long time ago said:

'The rule that a Court is only required to charge as to such questions as are made by the facts, means simply that if legal questions present themselves by the facts, and which are claimed either to sustain or refute the charges in the indictment, then it is the duty of the Court to charge upon such questions, but if questions not so raised are urged, it is not the duty of the Court to charge touching them. It was never meant that the Court should be excused from defining the offenses averred or embraced in the indictment.'

The most interesting point raised in this lawsuit, and it is very ably argued on behalf of the plaintiff in error, is that the trial court erred when, after the jury had returned its verdict in this case, the trial court orally made a charge to the jury. This came about in this way. The jury returned and reported that they had found the plaintiff in error guilty and fixed his punishment at one to five years in the penitentiary besides a fine of $500.00. It was then that the trial judge stated to the jury, 'Gentlemen, it is necessary that you state in your verdict whether or not the defendant is guilty of an assault with the intent to commit murder in the second degree or an assault with the intent to commit voluntary manslaughter. You may either retire to the jury room to consider this matter or may if you wish state your decision from the jury box.' After this statement was made the foreman of the jury stated orally that the jury had found the plaintiff in error guilty of an offense to commit voluntary manslaughter and then in response to a query by the trial judge the remainder of the jury indicated by voice or by nodding their heads that the foreman had correctly reported the verdict. It is argued, obviously, that this kind of procedure should not have occurred in open court, but that the jury should have deliberated upon it privately. The trial judge in his written charge to the jury, page 36 and 37 thereof, instructed them as to various degrees of crime and if they found him guilty of these various things what the punishment was from the minimum to the maximum, etc., which is a correct charge. After the greater offenses upon which this man was indicted had been charged, the trial judge said if they found the man guilty but not guilty of these greater offenses they could proceed to inquire whether or not he was guilty of assault with the intent to commit voluntary manslaughter, and then if they found him guilty of that offense they would assess his punishment at imprisonment in the penitentiary for not less than one nor more than five years or imprisonment at the county workhouse for any time less than one year, and by a fine not exceeding $500.00. Then the trial judge proceeded if they didn't find him guilty of that offense and found him guilty of a lesser offense what the punishment then would be.

It seems to us that all questions of law were properly charged in writing by the trial court and that the oral statement by the court to the jury after they had returned as above quoted was only an explanation to the jury as to how to mark their verdict and not an instruction as to the law of the case. What happened was nothing more than a restatement of the verdict by the jury which had been previously determined by them after a...