*1 Billy Ray Herman Ezell, Woodrow Ezell Freddie
v. State of Tennessee
Opinion filed March 1967. *2 and Thomas F. Guthrie, William McPheeteRs G. Dayton, plaintiffs in error. Attorney F. and Thomas
George General, McCanless, Attorney E. Fox, Assistant General, Nashville, for Attorney State; C. P. District Assistant Gen- Swafford, Dayton, prosecuted eral, the ease for the in the State trial court. *3 opinion
Me. delivered the of Burnett Chief Justice the Court. parties they
The will hereinafter be referred to as appeared in the trial court; the is, defendants and the State. were indicted 1965, tire defendants 6,
On December County, Herman grand jury Rbea Tennessee. of tbe charge for murder aon of was Woodrow Ezell indicted Lloyd alleged slaying sons, Ezell’s Herman of Bostic. Ray Billy Ezell, Lee and Yernon Freddie Ezell Ezell, alleged abetting aiding and were indicted crime. January in the were tried 1966, defendants
On County. Rhea At the close Criminal Court proof, de- taken as a nolle was State’s Upon hearing testi- Ezell. fendant, Lee all Vernon remaining opinion mony, jury that the was of the guilty. Herman Ezell defendants were Woodrow three degree guilty sen- second murder and found was was years penitentiary. in the to fifteen State tenced to ten years Ray Billy on was to three Ezell sentenced two voluntary manslaughter; Freddie Lee conviction of and degree sen- was murder convicted second years. is from these than ten It tenced serve less appeal is made to this Court. convictions alleged the indictments and sub- The facts out of which sequent arose as follows: are, convictions September Lloyd evening Bostic 18,1965, one
On the establishment, shot killed in his business grocery which is a store and Inn, combination Watts Bar County. in Rhea tavern located beer *4 day investigation revealed earlier in on An the shooting Freddie Ezell occurred, the and Vernon which the Bar Inn Ezell had visited Watts occasions. Lee on two ejected Mr. occasion Bostic the Ezell On the first brothers disorderly Subsequently, of their conduct. on account proffered Freddie returned Vernon and Ezell both and apology result, their to Bostic. As advised the Bostic a pro- presence two welcome, defendants that their was they properly. vided conducted themselves day evening question, Later in the on the in de- the accompanied by fendant, Herman his Woodrow Ezell, Billy Bay sons, three to Lee, Vernon Freddie, and drove the Watts Bar Inn. in While the sons remained the auto- proceeded mobile, Herman alone where tavern, into the purchased premises. he some beer to be consumed on he Before had consumed son Freddie en- beer, his Shortly and tered also ordered some beer. thereafter an altercation arose Mr. between Herman Ezell and regarding Bostic the fact that Mr. Ezell’s sons been ejected day. fight earlier in the A ensued and the com- struggle. During to fell batants floor- the conflict, a glass jar.' Freddie intervened a and struck Bostic with Billy Bay attempted participate the scufflebut spectators. Eventually, group restrained Herman fighting, announced he wished to terminate the whereupon agreed Mr. long Bostic to release him so peacefully. would act being
After released, Ezell, defendant, Herman proceeded away premises, walk from the then turned “By going shouted, around and God, I am, I’m to do going what I came to do, down here I’m kill him.” Thereupon pistol began shooting he drew a the de- help people, ceased, who with some other was able overpower During defendant, Herman Ezell. struggle, Billy ensuing Bay again Freddie attacked deceased. immediately transported
The decedent was to a hos- pital, upon but was dead arrival. *5 a motion defendants,
Upon convictions of these the by defendants. the counsel made for a new trial was parties presently motion, the are of From the denial assignments following of the Court to make before this error: refusing allow
(1) in to erred trial court the That testify the de- on behalf Lee Ezell to Vernon fendants. requiring to the trial
(2) That the trial court erred upon learning defend- the that three of continue ’ subpoenaed, duly were absent. witnesses, all ants requiring to (3) the trial erred in the trial court That period long of time. continue for such a admitting (4) testi- the court That the trial erred mony Highway Patrolman, of a Tennessee certain comply Attorney to with failed since the General giving regarding a list 40-2241, T.C.A. upon demand. to the counsel witnesses defense assignment out of the The first of error arises fact proof, prosequi a nolle that, the close of State’s at Vernon Ezell. was taken as Lee Un- defendant, excluding subject to the rule he was then aware that had been at the witnesses which invoked commencement at trial, of the Vernon remained seated the defense testimony hearing two of the defend- table. After testify; whereupon trial ants, Vernon asked to he violated the and was ruled that rule there- incompetent as fore a witness.
It counsel for that, is asserted the defendants lip taking on of nolle one of several being jointly, who criminal defendants are tried it is the person duty then trial to advise that court subject excluding rule witnesses becomes the court’s from must leave the courtroom, and therefore room testify. compelled agree. if he intends to We feel *6 general or it is that the allowance While the rule testimony, by has violated the disallowance one who excluding judge’s witnesses, a the rule is matter of trial believe an abuse of that we that there has been discretion, in the case at bar. discretion present right of
The criminal a defendant witnesses in his own is safe behalf, constitutional a basic guard; consequently, abridges any right rule which this scrutiny. be must examined with no There can be doubt prior prosequi, talcing that, to the nolle the Vernon placed By Lee could not have been rule. under the persons rights, virtue of their constitutional accused of present every stage crimes are entitled to at be the exempt trial therefore from and are the rule of exclusion e.g., of witnesses. See, T.C.A. 24-106; sec. Richards v. Hughes State, 91 723, State, Tenn. 20 S.W. 533; v. 126 Consequently, 40, Tenn. 148 543. S.W. Vernon Ezell did subject not to the become rule until that time at which party, specifically, lost his status as a he more when opinion nolle was taken. In the Court, this judge duty it was this time at that trial came under a subject to advise Vernon Ezell that he was to the rule excluding that witnesses and would therefore be re quired testify. to leave the if courtroom he intended to deny
We not do counsel for the defense like duty tq wise change advise the witness this however, of circumstances; we do not believe that this discharges judge’s obligation, the trial fact unless it can by actually advised so the witness
be shown that counsel. assignment
By error, counsel second per erred trial insists defendants morning early proceed mitting from trial one According evening. eleven-thirty p.m. that until about period un so of time was this counsel, to the defendants’ right fair prejudice ato the defendants’ reasonable as to Unfortunately, impartial record fails trial. adjourned; began trial at times the reflect what beyond fre consequently, As our review. is this error precluded quently from Court, are stated this we apparent reviewing record. are errors which 327; e.g., State, 328, 210 Tenn. 358 S.W.2d Nance See v. Rushing State, 480; Roberts v. 212 Tenn. S.W.2d *7 563. State, 515, Tenn. 268 v. 196 S.W.2d in allow is next the court erred It asserted that proceed of ing it shown that three the trial to after was subpoenaed, all of whom were witnesses, the defendants’ appear. assignment error is of also failed to This beyond that The record indicates when our consideration. personal grant of a attachment trial to refused exception objection to witnesses, or was made these no ’ only response ruling. coun his The from defendants they long has sel was that to rest their It intended case. objec errors, this Court to no been the rule of that which exceptions in made taken court below, tions are appeal. State, See, be raised on Webb v. 173 Tenn. cannot State, 179 166 518, 550; 121 Troxell v. Tenn. 384, S.W.2d State, v. 204 Blackwood Tenn. 777; S.W.2d S.W. 2d 262. opportunity attorneys this
We take to remind diligence pres- must be exercised in and alertness appellate The ervation of errors courts. for review orderly appellate justice of administration demands Attorneys courts of are maintain certain rules review. charged knowledge duty with of rules to these owe a conscientiously clients, their well as to the to courts, assignments adhere to such are rules. When there comply prerequisites do which for error with the appellate unfortunately, consideration, is, it the client attorney’s who bears the burden of the mistakes.
Finally, argue counsel that it defendants testimony error for the trial court admit the one Bollinger, Highway testify a Patrolman, G-ene as to by prior certain adverse statements made the defendants Accordingly, trial. it asserted that such testi- is mony is inadmissible because State’s failure comply with the mandate of T.C.A. 40-2441, sec. which provides as follows: a oral
“Whenever written or confession or admission against any interest shall have been made before law agency any per- enforcement officer or this state charged any copy son with crime, such confession, a against together or admission if interest, written, with persons present list the names and of all addresses against at time such or confession admission in- given made, terest was shall be to the defendant or his counsel on demand. If such confession or admission against writing, *8 interest was not reduced to then list a persons present the names and addresses all at of against the time the or admission interest confession shall ivas made he furnished. against or admission
“No confession interest shall be any copy ease admitted as evidence unless a of the 20'
n against list of interest or admission confession and/or (cid:127) persons present at time names-and addresses required this as is furnished
confession was made added). (Emphasis section.” opinion been no Court, there has In the this clearly reflects that this statute. The record violation of list that statements; written a there were no present statement persons the time the oral at who were prior to defendants furnished made, was emphatically for the counsel defendants However, trial. furnished, until this information was not contends that thirty-six prior this was the trial and that hours some noncompliance as with the to render so. unreasonable only that information The record reveals statute. at what time state it was was furnished does any question concerning consequently, supplied; the rea beyond is time our consideration. sonableness of assignment we hold that the first conclusion, In worthy of our is meritorious and sustainment. We error opinion that, nolle when are of the a is taken being jointly, several defendants tried to one of it is judge upon person the trial advise incumbent subject excluding is to the rule witnesses from a is not such -witness so it courtroom. Where informed, subsequently error for the trial is reversible reject on basis witness that the witness this vio- has exclusion. the rule of lated
n Onthe foregoing, basis of the the lower court’s convic- granted trial is tion is reversed and new to the defend- ants. (concurring).
Me. Chattin Justice
21 by the agree I reached While with the conclusion npon majority opinion, record The other reasons. I do so Ezell to the defense called Vernon reveals that when following occurred: stand the Templeton: in the he’s been Honor, Your
“General' court room. right. in court
“The That’s He’s been Court: room. But
“Mr. MePheeters: he’s— (Interposing) help been it, I he’s “The Court: can’t you I have court room asked for the rule ’’ to enforce it. appears Thus, invoked it the rule Counsel was taken, defendants. At the time the nolle persons knew were the who Counsel for defendants testify. Certainly the whether Vernon would be called judge trial did not. Counsel If for defendants intended duty place to call him as a it was their witness, him under the rule.
However, this Court the rule has held violation of separation of witnesses does itself wit- make a incompetent compel or his State, ness exclusion. Nance v. (1962). 328, 210 Tenn. 358 327 S.W.2d discretionary It is also this State it is settled in permit judge with the trial he whether will witness testify, although rule under the the witness has heard Pennington State, 136 evidence. v. Tenn. 190 (1916). S.W.
I think the error committed in the instant case was of the trial refusal to hear Counsel and disallow testify solely ground violated witness on the the rule. record,
Under the state of the we cannot ascertain testimony whether the of the Nor witness was material. *10 why appear permitted it does Counsel for the defendants the witness to remain room. the court