Turner v. State

• Citation: 213 S.W.2d 281,187 Tenn. 309
• Parties: TURNER et al. v. STATE.
• Decision Date: 17 July 1948
• Court: Tennessee Supreme Court

213 S.W.2d 281

187 Tenn. 309

TURNER et al. v. STATE.

Supreme Court of Tennessee.

July 17, 1948

Error to Criminal Court, Davidson County; Charles Gilbert, Judge.

Wm. J C. Turner and others were convicted of rape, and they bring error.

Judgments affirmed.

Nat Tipton, Asst. Atty. Gen., for the State.

GAILOR Justice.

In the Criminal Court of Davidson County, the defendants, Turner Scribner and Taylor, were convicted of rape and sentenced to death by electrocution. The case has been argued before us orally and separate briefs with numerous assignments of error have been filed to support the appeal of each defendant.

Some six months prior to the night of the crime, Miss. 'A' and Miss 'B', young white girls under twenty years of age, and Dillard (Steve) Morris, a white man of about the same age, had moved to Nashville from an adjoining county to attend a Nashville business college. Morris is a cousin of Miss 'A' and Miss 'B' was her roommate in a boarding house in the Hillsboro community. At about 10:30 in the evening of August 7, 1947, after seeing a moving picture, the three young people walked up on Capitol Hill in Nashville and were sitting on the grass on the north side of the Capitol watching the lights of the Professional Baseball Park when they were surrounded by the three defendants and at the point of a pistol in the hand of defendant Turner forced to go down on the hillside north of the Capitol, and in a flat open space near the Capitol greenhouse, to lie face down on the ground. There Miss 'A' and her companions were searched and robbed of their money and jewelry.

The defendant Scribner then forced Morris at pistol point into an old tunnel which was near by and stood guard over him there while the other two defendants raped the two girls. Scribner was then relieved of guarding Morris by Turner or Taylor and Scribner returned to the girls and raped Miss 'B'. However in view of certain assignments of error which we shall presently consider, it is necessary to state that the prosecution and conviction of the defendants in the present case was for the assault on Miss 'A' and Scribner did not rape Miss 'A' but that both Turner and Taylor raped her while Scribner was holding Morris off with a pistol. After the defendants had escaped from the scene, the two girls returned to their boarding house in a taxicab and immediately informed their landlady of all that had occurred. She made a report to the police, who in the course of their investigation of the scene of the crime, found Morris and released him from the tunnel.

On the same night and some two hours after the assaults, Miss 'A' was taken to the Nashville General Hospital and there underwent a physical examination at the hands of Dr. J. P. Brooks, who testified, without objection, that his examination disclosed recent sexual intercourse and that from tears and lacerations of the vagina and hymenal ring that the vagina had been penetrated and that the young lady had been a virgin prior to the intercourse.

The two young women described their assailants to the police as being three young negro men and Miss 'B' reported that among the articles stolen from her was a wrist watch which she also described. Miss 'A' also told police that one of her assailants was wearing a bright shiny ring with a square setting which was unusual and had attracted her attention.

In the early morning hours of August 20th, almost two weeks after the crime, Robert Justice, a former policeman, but at the time attached as officer to the Nashville City Court was cruising in his automobile some three or four blocks from the Capitol when his attention was drawn to a young Negro who with a handkerchief covering the lower part of his face ran across the lights of his automobile. He pursued the man who was the defendant Turner, and after a struggle in which the negro tried to draw a gun, he made the arrest. From information secured from Turner, officer Justice with two other Nashville policemen arrested the other defendants Scribner and Taylor.

Before noon of August 20, Dillard Morris, Miss 'A' and Miss 'B' all positively identified as the assailants of August 7, 1947, the defendants Turner, Scribner and Taylor. At the time of this identification, the defendant Taylor was wearing the ring that Miss 'A' had reported to the police. The watch stolen from Miss 'B' was, on information secured from the defendants, recovered from a Negro woman to whom it had been given by the defendant Taylor. At the trial the watch was introduced and identified and the Negro woman testified how it had come into her possession from the defendant Taylor.

In the middle of the day on August 20, sworn statements in question and answer form were made by Taylor and Scribner in the office of the Attorney General. That official was present and, after fully advising the accused of their Constitutional rights, conducted the examination. An Assistant Attorney General acted as the stenographer. He testified that the statements were taken by him in shorthand and later transcribed on the typewriter; that the statements met all legal and Constitutional requirements, and that they had been accurately transcribed by him. Other persons who were present at the examination testified that the statements had been made and freely and voluntarily made and that they had not been induced by any coercion or promise of immunity. At the trial, when the statements were about to be introduced, there was objection. The Judge followed the approved practice ( Wynn v. State, 181 Tenn. 325, 181 S.W.2d 333) of retiring the jury and hearing full testimony of all facts and circumstances surrounding the taking of the statements. Thereafter His Honor the Trial Judge held the statements admissible. The admission of the statements is the basis of several assignments of error, but we find no merit in any of them. Not only was the evidence of coercion and brutality on the part of the law officers unconvincing, but the contents of the statements themselves furnishes very strong internal evidence that they were freely and voluntarily made and made with no coaching or suggestion. In the statements taken, both Turner and Scribner admit that they were on Capitol Hill on the night of the crime and that they were present at the time the crimes were committed but both deny that they committed rape or participated in the fruits of the robbery. Turner says that he was there because he was terrorized and intimidated by Scribner and Taylor, and Scribner says that he was acting similarly under duress from Turner and Taylor. The importance of this is not that this part of the story of Turner or Scribner is credible in the light of other evidence but that if the statements had been coerced the coercing officers would have accepted nothing less than unconditional confessions of guilt.

To rebut the State's case all three defendants introduced witnesses to prove an alibi. None of the evidence is convincing because in no one of the three attempts at an alibi is there any proof that the night of August 7th was remarkable or memorable to distinguish the events of that night from those of any other night in the minds of the witnesses. The trial was held in November, three months after the events of August 7th, and some fact or facts to make that night remarkable and distinguishable from all other nights was necessary to make evidence of the alibi reasonable and credible. In addition, there were many discrepancies and contradictions in the details of the stories of the several witnesses. The witnesses for Turner and Scribner were members of their immediate families and the only witness for Taylor was the woman with whom he had been living in adultery at the time. The effect to be given by the alibis as they were set up here, depended entirely upon the credibility of the supporting witnesses and the determination of their credibility and the weight of their testimony was exclusively within the province of the jury. Warren v. State, 178 Tenn. 157, 156 S.W.2d 416; Stinson v. State, 181 Tenn. 172, 180 S.W.2d 883.

Several of the assignments of error are directed at the action of the Trial Judge in refusing a motion for a severance. The question here is not whether the Trial Judge abused his discretion, but whether his action in refusing a severance resulted in prejudice to the defendants. Woodruff v. State, 164 Tenn. 530, 538, 51 S.W.2d 843.

The facts of this case as we find them, present a common criminal enterprise in which all three defendants joined and acted. From the time that Turner pointed his pistol at Miss 'A' and her companions and forced them down the north side of Capitol...