Turner v. State

• Decision Date: 22 January 1891
• Citation: 15 S.W. 838,89 Tenn. 547
• Parties: TURNER v. STATE.
• Court: Tennessee Supreme Court

15 S.W. 838

89 Tenn. 547

TURNER v. STATE.

Supreme Court of Tennessee.

January 22, 1891

Appeal from criminal court, Davidson county; G. S. RIDLEY, Judge.

Mat W Allen, for appellant.

Atty Gen. Pickle, for the State.

DICKINSON J.

Turner was indicted for killing Thomas A. Holton, was convicted of murder in the second degree, and sentenced to 15 years in the penitentiary. The wound of which Holton died was inflicted by Turner May 15, 1889, in the office of Arris Brown, justice of the peace, in Nashville, while the magistrate had under consideration the postponement of a case that had been called for trial. Besides Turner, Holton, and Brown, there were present in the room Holman, the attorney of Turner, Bland, a business partner of Holton, and Frasch. Bell Reddick testifies that he was on the street, just at the door, and saw all that occurred. When the altercation which preceded the shooting began, Turner was standing in front of the magistrate, within a railing dividing the room. Holton and Bland were just outside of the railing, next to the wall. At the opposite end of the railing from them, at the other wall was a gate-way admitting passage to the rear section of the room, where Turner was standing. A question arose as to continuing the cause on the ground that the attorney for Holton and Bland was absent. Turner insisted on a trial. It had been postponed from an earlier hour in the morning, at Turner's instance. Holton said that Turner's lawyer was not present at the hour fixed. Turner said he was. This affirmation and denial were repeated by them several times, and then Turner said, "You are a damn liar." Holton then said, "You must take that back," and moved along the railing in the direction of the gate-way, which was five or six feet from where he was standing. Bland followed him. Holton made no threat other than the words quoted. Bland said nothing, and made no demonstration. When Holton reached the gate-way, Turner drew his pistol and fired; Holton turning his face from him as soon as he saw the pistol, thus exposing the rear of his right side. Turner fired quickly, and Holton fell with his head towards the street door. Holton was searched, and no weapon--not even a pocket-knife--was on him. He was in his shirt sleeves. When Turner fired, Holton was from nine to eleven feet from him. The entrance and course of the ball showed that the back of Holton was exposed to the shot. As to the foregoing facts, there is no controversy. The conflict of evidence is upon the action and demonstrations by Holton in moving from his first position to the point where he was shot. Turner claimed that he believed and had reason to believe that it was necessary to shoot in self-defense. He testified as follows: "Then he started at me with his fist clenched, and said, 'You have got that to take back.' I said, 'I am not going to do it.' I just turned around right in my tracks, and unbuttoned my vest, facing him. When he got to the gate he put his right hand back to his hip-pocket, and I pulled and fired, quick as that, [illustrated]." "He was very angry." On cross-examination he said, "He turned when I shot." Defendant said that he was cool, and not excited at the time. As stated previously, there were but five witnesses to the shooting besides the principals. On this point they testify, in substance, as follows: Justice Brown said that Holton spoke quick, but not in a very angry manner; that he was very mild, under the circumstances; that he did not start around in an angry manner, but moved off slowly; that he saw no demonstration by Holton, but did not see the position of his hands, as witness was looking at Turner. Holman says that he saw Holton make no demonstration of any sort; that he did not attempt to draw a weapon as he walked down the railing; that he did not see Holton as distinctly as he saw Turner, and could not say whether Holton had his hands on his side or where, or what he was doing with them at the instant of firing, as he was then looking at Turner. Witness said to Turner, as he was drawing his pistol, "Don't, Jim," but is not certain that Turner heard him. Bell Reddick says that Holton, as Turner reached for his pistol, turned his body, as if to escape the shot; that he made no demonstration to draw any weapon; that he had both hands held up in front of him as he walked down the railing. Bland says that Holton walked down the railing, holding his hands out in front of him; that Holton, about the time he turned around, called to Turner not to shoot. Frasch, a witness for defendant, testified that Holton, when he got in the gate-way, started in a fighting position towards Turner, and that his right hand went down before he was shot. Cross-examined as to the exact time the hand went down, he makes it simultaneous with the fall of the body and the firing of the shot. He says: "I think he turned when he saw Mr. Turner was going to shoot, and the hand went down immediately." Holton, in his dying declaration, says: "When I faced him at the time I reached the opening I saw him throw open his vest with his hand. I saw his pistol, which he drew with his right hand; and at that instant, I threw my right side towards him, and he fired immediately. At the time I was approaching him my hands were in front of me, or partially raised from my side, and in no angry manner." Thus it appears that defendant is entirely unsupported in his statement that the deceased made a movement as if to draw a weapon, and is flatly contradicted by Holton, Reddick, and Bland. Besides, every other witness but Frasch testifies that Holton, in moving towards the gate, was not angry, nor threatening in manner. Two physicians, who made a post mortem examination, testified that the arm was not wounded, and that it would have necessarily been penetrated had it been up in any natural position for the purpose of reaching the hip or side pocket. The proof further showed that Turner bore Holton ill-will on account of what he considered a previous wrong. The plea of self-defense has nothing to support it.

Several alleged errors are relied on for reversal, and have been urged with so much earnestness and ability that they will be considered in detail.

1. It is insisted that the indictment is a nullity, because it is signed by an attorney general pro tem., whose appointment was void. Under subsection 8 of section 6083 of the Code, if the records failed to show the appointment of the attorney general pro tem. after plea of not guilty and conviction, defendant could not avail himself of any error in the appointment. In this case the record sets out the appointment as follows: "On account of the sickness of Attorney General M. R. Priest the court appoints W. M. Hart attorney general pro tem.; said Hart being duly sworn, as the law directs." Article 6, § 5 of the constitution provides that the court may appoint an attorney pro tempore "in all cases the attorney for any district fails or refuses to attend and prosecute according to law." Section 4733 of the Code undertakes to amplify this, but this does not affect this case. It is claimed that, inasmuch as the order is before this court, and specifies the sickness of the attorney general, and not his failure or refusal to attend and prosecute, as the ground of action, the appointment is void. This, of course, excluded all presumptions that the judge knew and performed his duty, and that the order stated merely the reason why the attorney general was not present, or, if present, why he failed to prosecute. The contention of counsel is that the order (if it undertakes to set forth any reason) must show that the attorney general failed to attend and prosecute, and that, so far as is shown by this order, he may have been present, though sick, and, if present at all, the court could make no valid appointment. In Hite v. State, 9 Yerg. 202, it was held that "before the court can appoint an attorney general pro tem. the record must show that the officer appointed by the state is absent." In Staggs v. State, 3 Humph. 374, the court says: "When, therefore, we see the name of another person than the regular appointed attorney general to a bill of indictment, we must see from the record his appointment, and the facts that authorized it." Doubtless to meet these and like technical decisions, and to prevent criminals who go to trial without raising such points, and are fairly convicted on the evidence, from escaping through mere irregularities in the record, which do not prejudice their rights, the act of 1852 (section 6083 of the Code) was passed. In Pippin v. State, 2 Sneed, 45, upon an order reciting the incompetency of the attorney general by reason of having been employed before his election to defend Pippin as the ground for appointment, the indictment signed by such appointee was held void, the court saying: "The facts must appear on the existence of which the validity of the appointment depends;" and that it did not appear that the attorney general refused to prosecute, or took any action in the case; and therefore the court, in declaring him incompetent, and making the appointment on that ground, made "a new cause, not stated in the constitution." It would seem that this court might have presumed that the attorney general had declined to act for the reason stated, and that the appointment was properly made, and that the order, in stating the reason that prompted the attorney general, by implication stated his action. Some facts are of themselves so pregnant that other facts, which are their legitimate offspring, are included in their statement; and it would seem that the statement that an attorney general had been previously employed to defend a prisoner, followed by the court appointing an attorney general pro tempore...