Walker v. State
| Decision Date | 16 December 1954 |
| Citation | 273 S.W.2d 707,197 Tenn. 452,1 McCanless 452 |
| Parties | , 197 Tenn. 452 English WALKER v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
John A. Armstrong, Greeneville, for plaintiff in error.
Jack Wilson, Asst. Atty. Gen., for the State.
Walker was indicted, tried and convicted for violating the age of consent statute, Code Section 10786, and was sentenced to not more than 5 years in the State penitentiary. From this conviction he appeals and has assigned numerous errors which will hereinafter be considered.
Let us first notice that in the bill of exceptions that the order of January 18, 1954 respiting the jury the following day lists one of the jurors as 'Joe M. Dawson' while the order entering the verdict of the jury lists the juror as 'Joe M. Davison'. Obviously this is a clerical error. The State has secured and offered in the record certified copies of these two orders which were filed herein on October 7, 1954 in which it is shown that is purely a clerical error and this juror is listed in both orders as 'Joe M. Dawson'.
According to the State's proof, the plaintiff in error was about fifty-eight years of age and formerly employed a twelve-year-old girl by the name of Retha Griffith in his small store and barber shop at Johnson City. This girl worked around there for some two or three months (her family living within two or three blocks of this small store) when her family moved to Greeneville. Shortly after the family moved to Greeneville the plaintiff in error, Walker, wrote the Chief of Police of Greenville and asked him to locate this girl's whereabouts. As a result of this letter the Greeneville police wrote Walker where the girl lived in Greeneville. The indictment and conviction in the present case arose by reason of acts committed in Greene County, near Greeneville. After moving from Johnson City to Greeneville and after Walker had learned where the girl lived, he wrote her and she in turn wrote him. These letters and the statements of both Walker and the girl jibe and show without a peradventure of a doubt that Walker gave her many small presents after he learned of her whereabouts in Greeneville in addition to small sums of money. On one or two occasions he sent her enough to pay her bus fare for her to come to Johnson City to visit him, at which time he admits that she slept in the same room with him. He likewise admits that he visited her and her family in Greeneville at the time the alleged acts for which he was convicted were committed.
On the occasion in question out of which the indictment grew, Walker drove from Johnson City to Greeneville where he met this little girl at a bus station. The two then got into his automobile and rode out the highway beyond Tusculum College and parked. According to Retha's testimony, she and the plaintiff in error got on the back seat of the automobile and she removed her panties. The plaintiff in error got on top of her and made an effort to insert his penis. She testified: '* * * I told him to take it out because it hurt me. * * * Well, he took it outside of my body until he got through'.
The two then drove into Greeneville and out another road to the little girl's home where they saw her father and mother and then he took her to a restaurant and as he says bought her a 'steak dinner'.
After the dinner Walker again drove his automobile with the little girl out to the same spot where they had parked before dinner and there they again stopped and parked. The child testifies that the plaintiff in error again undertook to have intercourse with her but withdrew his penis when she complained of the pain.
When we read the testimony of Walker, who took the stand in his own behalf, he agrees with all the statements the little girl made about where they went and parked and about going before and after dinner and everything jibes with her statements except the fact that he denies having intercourse with her. He does admit that he kissed her, etc., but denied having intercourse with her.
The State called as a witness a Greeneville physician and this doctor testified that he had made an examination of the girl and that because of her female organs he was of the opinion that she had not had intercourse with a normal, adult male. After the doctor had testified he made an examination of the plaintiff in error and from this examination testified that the plaintiff in error was a normal, adult male and that because of the size of his penis, no entry had been made.
Walker likewise introduced a number of character witnesses and also his former wife (they had been divorced several months prior to this incident) who testified that Walker had been incapable of having sexual intercourse for a period of almost ten years.
As above said Walker in his testimony practically concedes everything that the little girl has testified about except the fact of their having intercourse. He admits her visits to Johnson City where they slept in the same room and that he lay on the bed with her for a while, in other words from his whole testimony one would certainly conclude that he slept with her there. He admits everything that happened on the road out of Greeneville except the intercourse. He insists of course that he merely kissed her on the cheek or as he calls it, jaw, and talked to her about her school work. He does admit though that when he drove to Greeneville to see her on this occasion that he gave her several pieces of cheap jewelry as a present.
Of course it is perfectly obvious from the fact that Walker was convicted that the jury accepted the State's theory of the case and found Walker guilty as charged.
The first three assignments of error are that the greater weight of the evidence preponderates against the verdict of the jury. After a careful reading and a study of the evidence we are convinced that these assignments are without merit. As said above there was evidence pro and con but the jury were well warranted in accepting the State's evidence and the State's theory. It seems to us that from the argument before us and the brief that the basis of these assignments is the testimony of the doctor who testified in the case. As before said he testified that in his opinion there had been no penetration. This doctor though did not say and would not say that there had not been a partial penetration. As to this question all he could say or did say was 'that I could not determine, sir'. This argument though is to us as it was to the jury, who heard the doctor's testimony as well as the little girl's and the man and the others, the jury believed that under the law as given them that there had been a partial penetration. Singularly there is no question made as to corroboration--normally that is obviously one of the principal questions raised in a case of this kind, but in view of the evidence in this record no such question could be made here because of the admission of the...
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...State v. Bowman, 232 N.C. 374, 61 S.E.2d 107; State v. Jones, 249 N.C. 134, 105 S.E.2d 513." See to the same effect Walker v. State, 197 Tenn. 452, 273 S.W.2d 707 (1954), citing and quoting the North Carolina Supreme Court in State v. Bowman, 232 N.C. 374, 61 S.E.2d 107, 108 In State v. Wil......
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