Watkins v. State

• Decision Date: 02 June 1965
• Parties: William G. WATKINS and Lurton McNeil v. STATE of Tennessee. 20 McCanless 545, 216 Tenn. 545, 393 S.W.2d 141, 14 A.L.R.3d 818
• Court: Tennessee Supreme Court

Page 141

393 S.W.2d 141

William G. WATKINS and Lurton McNeil v. STATE of Tennessee.

20 McCanless 545, 216 Tenn. 545, 393 S.W.2d 141, 14 A.L.R.3d 818

Supreme Court of Tennessee.

June 2, 1965.

Rehearing Denied Aug. 16, 1965.

John J. Hooker, Sr., Nashville, William J. Peeler, Waverly, for plaintiffs in error.

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

BURNETT, Chief Justice.

The plaintiffs in error were convicted of accepting a bribe for releasing, or failing to prosecute, one Homer Lee Scott, who was found by them to be transporting intoxicating beverages through a dry county. Watkins was the Chief of the Alcohol Tax Unit, Department of Revenue, while McNeil was the Sheriff of Humphreys County. Watkins was sentenced to serve not less than two nor more than five years in the State penitentiary, while McNeil was sentenced to serve not less than two nor more than three years in the State penitentiary.

An appeal has been seasonably perfected, briefs filed and arguments heard. After a thorough consideration of the matter as presented, we are now in a position to decide the same.

There are two assignments of error: one to the effect that the evidence preponderates against the verdict and in favor of the innocence of the accused; and another to the effect that one of the jurors took notes during the trial of the testimony of witnesses and used these notes in explaining the witnesses' testimony to other members of the jury during their deliberations. The latter assignment was very ably and vigorously argued by counsel for the plaintiffs in error and was the only question argued, as well it might have been, because after carefully considering this entire record we are convinced that at the trial of these parties the State went all out not to commit error and to give the parties a fair and impartial trial.

From the evidence herein the jury was well justified in finding the following state of facts. Two agents of the Alcohol Tax Unit, Department of Revenue, State of Tennessee, a short time prior to the incident in question obtained information that Scott was delivering whiskey purchased in Nashville to a Mr. Preston in Camden, Tennessee. These agents obtained the license number of the truck operated by Scott and reported this information to the plaintiff in error Watkins and asked whether or not they should try to apprehend Scott. Watkins advised them that he would have the Sheriff in Waverly catch Scott.

Scott was driving through Waverly en route to Camden on the evening of May 31, 1963, at about 9 o'clock when he was stopped by plaintiff in error McNeil. A search was made of Scott's truck and 24 cases of whiskey were found in a hidden compartment under the bed of the truck. Scott proposed to the Sheriff that he would like to 'fix it up and not have no trouble about it.' After some negotiation, done mostly while the Sheriff and Scott were riding in Scott's truck, it was decided at the insistence of the Sheriff that Scott would return to Nashville and send somebody back to Waverly during the remainder of that night to pay the Sheriff some money for the release of the truck, title certificate and driver's license, and the Sheriff was to keep the whiskey.

Scott returned to Nashville and contacted the operator of a liquor store there, one by the name of Collins, and Collins then arranged for a man by the name of Lewis in Dickson, Tennessee, to go to Waverly that night and contact the Sheriff in Scott's behalf. Lewis made such a journey but was unable to effect any arrangement with the Sheriff.

The Sheriff, testifying herein, admitted most of the details in connection with what has just been said, except he could only vaguely remember stopping the truck of the description in question. He denied finding any whiskey in the truck but did admit that Lewis had come to Waverly during the night and called him about the matter. He further admitted trying throughout the night, even at 5 a. m. the next morning, to contact Watkins in Nashville.

The testimony relative to the taking of this truck and the whiskey by the Sheriff is thoroughly corroborated, and we have no doubt regarding the truth of the State's testimony on this subject. This testimony was corroborated by twelve witnesses in addition to indirect corroboration from other State's witnesses and admissions made by the Sheriff in his testimony. No proceeding was initiated in the Sessions Court of Humphreys County about the time of the incident against Scott.

On the following day McNeil met Watkins at about the junction of Highway #96 and Interstate 40 in Dickson County, and after some discussion they went to Nashville. Plaintiff in error Watkins called Collins and two employees of Collins' liquor store. An arrangement was made for Watkins to purchase a bottle of whiskey and Collins would slip into the bag with the whiskey the sum of $600.00 in return for the driver's license and title certificate of Scott, and then Scott would have the privilege of regaining possession of his truck. Watkins admits making the call and purchasing the whiskey but he denies receiving the money.

Shortly thereafter on the same day, Collins says when Watkins learned that Collins would appear before the Commissioner of Revenue and report the incident, Watkins called Collins and again prevailed upon him not to make such a revelation to the Commissioner. When it appeared that Watkins would not influence Collins in this respect Watkins called another State's witness, one J. P. Dolan, and asked Dolan to intercede for him. Watkins admits both of these telephone calls but insisted that neither constituted any admission of guilt of the offense for which he was charged.

It is clear to us that the corroborating circumstances outside the testimony of these witnesses is exceedingly strong in support of the verdict. Watkins first directed the Alcohol Tax Agents who reported the matter to him in the outset and whose duty it was to apprehend persons in violation of the liquor laws not to apprehend Scott but to leave that to the Sheriff; in the second place McNeil never made any charges against Scott after stopping him and finding the whiskey in his truck; and in the third place McNeil's efforts to telephone Watkins during the night immediately after this incident coupled with their activities on the following day clearly corroborate the finding of the jury.

Aside from these strong corroborating circumstances there is very strong, positive and unimpeached evidence by a number of State's witnesses definitely proving the offense charged. Under such circumstances the credibility of the witnesses and the conflicts in the testimony have all been settled by the verdict of the jury, and this being true it makes it unnecessary for us to go into a detailed discussion of the evidence pro and con. Our only duty has been to determine whether or not the evidence does preponderate against such finding. See Cooper v. State, 123 Tenn. 37, 138 S.W. 826, and many, many cases which can be found by Shepardizing the Cooper case.

In an amended motion for a new trial it was stated that the foreman of the jury, one Wingate, made notes during the trial of the testimony of some of the witnesses and used these notes to influence other jurors to his conclusion about the evidence. The statements of two jurors relative to the Wingate notes were attached to this amended motion for a new trial. These statements are not authenticated by the trial judge as being the statements considered by him on a motion for a new trial, so from a technical standpoint it cannot be determined from the record whether or not the trial judge considered such statements in overruling the motion for a new trial. The trial judge made no reference to the statements in his order overruling the motion. Thus it is that the State takes the position that we have no right to consider these things, and should not enter this phase of the argument on behalf of these plaintiffs in error. The State cites a number of cases in support of this contention, all of which are clearly correct we think. The State cites one case and quotes from it of Koehn et al v. Hooper, 193 Tenn. 417, 246 S.W.2d 68, which in part says:

'The second question is presented by the insistence that the Court of Appeals erred in refusing to consider the propriety of the action of the Trial Judge in refusing certain special requests. The special requests are not incorporated in the bill of exceptions, nor does it appear in the bill of exceptions that the special requests were refused by the Trial Judge. The special requests are incorporated in the motion for a new trial, but that is a mere pleading and does not take the place of a bill of exceptions. Sherman v. State, 125 Tenn. 19, 140 S.W. 209; Wynn v. State, 181 Tenn. 325, 331, 181 S.W.2d 332.'

This undoubtedly is the rule that is applied under a factual situation as here, but in view of the fact that this question is so vigorously argued by plaintiffs in error and in view of the further fact that we, in our determination of cases try to bend backwards to see that there is no reversible error in any record, have, and are, considering the question pro and con for the future guidance in such situations, and to find out whether or not, even if these statements were properly authenticated if there would be reversible error in this record.

It has been the practice in this State, from the inception of judicial decisions in the trial of cases before a jury, that the jury is not permitted to take exhibits, diagrams and things of that kind to the jury room with them unless consented to by both parties. We have no statute governing the question, and it has grown out from early statements such as, 'It was error, also, for the jury to examine and consider diagrams not introduced in evidence.' Railroad v. Lee, 95 Tenn. 388, 32 S.W. 249. We propose hereinafter to discuss at some length the reason for...