Turner v. State

• Decision Date: 11 March 1949
• Citation: 219 S.W.2d 188,188 Tenn. 312
• Parties: TURNER v. STATE.
• Court: Tennessee Supreme Court

219 S.W.2d 188

188 Tenn. 312

TURNER v. STATE.

Supreme Court of Tennessee.

March 11, 1949

Error to Criminal Court, Davidson County; Chester K. Hart, Judge.

Hugh Turner was convicted of voluntary manslaughter and he brings error.

Judgment affirmed as modified.

Carmack Cochran and Hardin H. Conn, both of Nashville, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for defendant in error.

GAILOR Justice.

Defendant appeals from conviction of voluntary manslaughter for the killing of W. A. Jernigan in Davidson County on April 22 1946. Punishment was fixed by the verdict at not more than five years in the penitentiary.

The series of events which led to the killing are not in controversy, nor is the age and occupation of the defendant. He was 78 years old in 1946, and had been for many years in the dairy and cattle business. He is a tall man, six feet three inches, and weighs about 165 to 170 pounds. He is active for his age and his vision is little impaired. For 50 years he has worn a pistol as a part of his clothing carrying it unlawfully but habitually.

The deceased, W. A. Jernigan, was much younger, about 39 years old and smaller than defendant, weighing only about 135 pounds. Jernigan was employed as superintendent of Lealand Estates, a 1200 acre tract of subdivided land south of Nashville. Jernigan, with his family, lived on the tract near the intersection of Lealand Lane, which runs generally north and south, and Tyne Road, which runs generally east and west. The killing occurred at the intersection of these two roads.

On the Thursday before the killing, Jernigan found a herd of about 28 beef cattle running at large on Lealand Estates, and on the order of his employers, he impounded them in a corral some 150 yards from the house where he lived, and the gate of this corral opens on the crossroad where the killing occurred and where the action centered in this record. Shortly before noon on Saturday, April 20, Turner while passing this corral on another mission, saw the cattle and identified them as his cattle. He went to Jernigan and talked about the release of the cattle, and was told that this could be done only by the order of Jernigan's superior, Mr. McNeill. Late in the afternoon of the same day Turner returned and talked to McNeill and Jernigan about the return of the cattle. According to McNeill's testimony, to which no objection was made, immediately on seeing Turner approach, Jernigan urged McNeill to avoid argument with Turner because Turner was known to be a dangerous man. Gambill testified that the defendant was known to him to be 'high-tempered.' The jury had this evidence before it when weighing the credit to be given the contradictory statements of Jernigan's assault on Turner.

Turner was told by McNeill that the release of the cattle could only be effected by consent of the Estates' lawyer, Mr. Evans, and that Mr. Evans would not be back in his office until early Monday morning, but Turner was allowed to return and feed the cattle on Sunday. During Monday morning, negotiations were entered into and a settlement effected for the damage which the cattle had done to shrubs and lawns. Turner was told that he could get the cattle at 4:00 o'clock in the afternoon and accordingly, at or about that hour he took two trucks, a passenger car, and five men to the gate of the corral for the purpose of removing the cattle. During the negotiations Saturday and Sunday and until 4:00 o'clock Monday, the relations of all parties were entirely peaceful and friendly.

Turner went to the house where Jernigan lived and was told that he would have to wait until the key to the gate of the corral was secured from Jernigan who was working about one-half or three-quarters of a mile away, cutting shrubbery.

From this point on, the action and events are in hopeless controversy and contradiction. There were some ten eyewitnesses of the killing or parts of it. The witnesses reasonably and naturally divide themselves into two camps. The employees of Lealand Estates testified favorably for the State, and the defendant and his employees testified favorably for him. Conflicts in the evidence have been resolved against the contentions of the defendant by the jury's verdict, and as each group of witnesses is equally credible, there is no proponderance in favor of the innocence of the defendant. On the contrary, we find the State's case supported in many particulars by the undisputed physical facts and the usual natural laws of human behavior.

In brief, the State's case is this. Jernigan driving his car with State's witness Gambill as a passenger, came down from the south on Lealand Lane, turned right and stopped his car on Tyne Road. Jernigan's car was followed at an interval of about 30 yards by another car driven by a workman named Swoner. In this car were the following State's witnesses; Jesse Swoner, Charlie Swoner, Ed Stanley and Louis Stanley. Swoner's car stopped in Lealand Lane just before the intersection with Tyne Road, but about 25 feet from the gate where the shooting occurred. Between the Swoner car and the spot where Turner stood when he fired, there was a bank of earth along the eastern edge of Lealand Lane and between its edge and the gate of the corral. There is much controversy about whether or not this bank prevented the occupants of the Swoner car from seeing what occurred. The witnesses were energetically cross-examined on this by the defense, and photographs showing the height of the bank were before the jury. This is no more than a question of the credibility of the witnesses and is foreclosed by the verdict. Christian v. State, 184 Tenn. 163, 197 S.W.2d 797; Ferguson v. State, 138 Tenn. 106, 196 S.W. 140.

According to the State, when Jernigan stopped his car members of the Turner party were taking the gate off the hinges for the purpose of releasing the cattle and loading them on the trucks. Jernigan asked Turner and his party to leave the gate undisturbed until he (Jernigan) had an opportunity to go to his house, which was nearby, and secure the key to the corral gate.

All seven State's witnesses say that Jernigan halted his car momentarily at the intersection of Tyne Road and looked to his right and left for traffic, and then pulled on into Tyne Road and got out of his car; that there was then some conversation with Turner and his party about the gate; that Turner threatened to take the gate off the hinges if Jernigan did not hurry for the key. This interchange between Turner and the deceased was accompanied by some profanity and some angry words. The State's witness, Gambill, admits that the conversation frightened him. When asked why he was frightened he said that it was because he knew Turner's reputation, and that he was a high-tempered man. While this conversation was taking place, all the evidence is that the two men were standing from 18 to 20 feet apart. From the State's point of view, the best account of the details of the shooting is that of Gambill, who is apparently the State's most intelligent witness. He said that after Jernigan had asked Turner and his party not to take the gate off the hinges, but to wait and let him get the key, that Turner said, 'You had better hurry. If you don't I will take it off.' That immediately after this Jernigan bent over as if to pick up something from the ground, and that as he was straightening up Turner drew his pistol and shot him once; that Jernigan stagered toward Turner and Turner fired two more shots in rapid succession; that Jernigan went down; that Turner sprang upon him, straddled his body and was choking him; that Jernigan said, 'Don't let him kill me.' That the witness (Gambill) pulled Turner off Jernigan's body and took his pistol. That Jernigan had nothing in his hand, and that when he stooped to pick something up he was not successful because there was nothing on the ground in that part of the scene for him to pick up. Both witnesses for the State and some of those for the defendant say that there was an interval between the first and the second and third shots, that is, that there was an interval between the first and second shot, and that the second and third shots were fired in rapid succession.

One shot, possibly the first, entered the crest of Jernigan's right shoulder and ranged diagonally across his body, lodging on the left side near the navel. Another shot was in his right arm, which caused considerable bleeding. The third shot, according to Gambill, 'glazed' Jernigan's hair. There was evidence that after the encounter, Turner's head was bloody. From the evidence of Gambill and other State's witnesses, the jury was warranted in concluding that the blood was Jernigan's from the wound in his right arm.

Turner and the majority of his witnesses give a different account of the occurrence which is in hopeless conflict and irreconcilable with the testimony of the State. They say that Jernigan drove his car down Lealand Lane at a high rate of speed and came to a sudden and violent stop, raising a cloud of dust. That he first got out of his car while it was parked in Lealand Lane, that some 10 minutes before Jernigan's arrival on the scene, the gate had been taken off the hinges and at the order of Mrs. Jernigan and a man named Mullins, who shouted from a neibhboring barn, the gate had been replaced before Jernigan arrived. That when Jernigan got out of his car when it was parked in Lealand Lane, he approached the Turner party and said, 'You didn't find it so God damn easy to break the gate down.' That after some further angry words Jernigan got back in his car and drove it around into Tyne Road and stopped, got out and came back; that after some further profane warning to leave the gate alone until he (Jernigan) got the...