*1 Emаnuel Tennessee. S.W.2d Term, April 1965.) (Jackson, January Opinion 5, 1966. filed *2 Mahofey and Morris Gaffof, W. Jr., Liofel Mem- error. phis,
n George Attorney General, F. and Thomas McCafless, Attorney General, E.Fox, Assistant for the opinion delivered the Bubnett Mb. Chibe Justice the Court. manslaughter involuntary was convicted days twenty-nine to serve months and
sentenced eleven county sea- Prom this conviction roads. appealed, sonably full and, after a consideration of the *3 disposi- we now have the matter record, briefs and tion. on had, that
The record Harris and deceаsed shows having difficulty with each other. March they fight engaged p.m., in in On date 7:30 that about fight Memphis. of in immediate was a cafe the The cause up whiskey plaintiff picking glass the the decеased’s drinking fight over, in was the error and it. When the plaintiff lying in a in was booth with deceased found standing him. A broken bottle was found at error over any fight. place None of the saw ilie witnesses рlaintiff in testified that he struck struck, error blows but fist with his and caused on the deceased nose striking without the fall deceased to backward deceased rendering anything or without the decеased his on head rise. unable stag- fight was noticed over, was the deceased
After the no indication gering restaurant, but there was out injury. up policeman picked A Mm a short there- thought was after near the and him to He cafe drunk. jail. wagon put paddy in then and taken to When jail, was that deceased arrived noticed was place from he had not movеd unconscious patrol placed wagon. in he was where policeman happened had The testified police injury way station to cause de- any injury him. nor notice Bеcause did ceased, jailer permit him to entered his would condition hospital jail, was at the and deceased carried to the autopsy was made, death an where hе died. After report autopsy to the effect that was the deceased temple with Coca Cola a ham- about struck bottle injuring causing a deceased’s skull mer fracture his death. which caused brain, that deceased’s death was caused clear
The injury by by None of to him error. an being by hit the deceased witnesses, saw true, certainly plaintiff the circumstances exclude error, but theory. stand and Plaintiff error took engage fight but admits that he did deceased he did this was a sldrmish claims that deceased hard. The evidence shows that not hit deсeased fight lying It evi- in a booth after this occurred. jury, apparently the de- it was to the us, dent Cola instrument, some Coca was struck ceased *4 something, which blow, a hammer caused the or bottle or up entirely injury is made which The case from he died. except for the fact that evidence of circumstantial type fight, no one saw the instrument did have a testi- The mеdical the death deceased. which caused very certainly strong’ mony being cir- there is as is, eumstance to that show deceased was struck with some- thing push more than a shove or the course fight. this
The rule
has been well established
upon
that where
circumstantial evidence is relied
conviction the essential facts
must be consistent
hypothesis
guilt,
and all othеr
theories
reasonable
hypothesis except guilt
must be excluded
the facts.
State,
Mar able v.
440,
313 S.W.2d
This
record does not indicate that Harris
up
picked
he was
informed when
a statement
made
right
mak
that he had a
to counsel
officers
before
though
ing such
He
that
was informed
statement.
might
against
during a
statement he
used
him
be
made
trial.
in the
that
is
There
indicate
right
knew,
know,
or did
of his constitutional
give
himself
counsel.
This
I,
9,
Section
Constitution of Tennessee.
Article
question
all
is
In
now before us
number
cases.
position
that
cases
has taken
counsel
sinсe
Supreme
of the United States
Escobedo
decided
12 L.Ed.2d
Ilinois,
v. State
378 U.S.
S.Ct.
required
even
one
a statement
that it
makes
upon being
he
or makes
arrested,
confession,
entitled to have counsel before
must be advised
argument is
making
words,
such statement.
accepted tending incriminate
can
no statement
being
giving
advised before
person
it without his
making
entitled to
We
counsel.
such statement
this.
holds
think Escobedo
do not
long
as it is
well
The test
made
not the statement was
whether or
others,
in most
voluntarily.
State,
587 338 615. tliink any S.W.2d We that Escobedo has not way сhanged the rule admission of a confession or taken statement under such circumstances an in- aqd brought dictment the fellow is into court. judge,
It is the that the trial rule when mat ter comes оn hearing to heard be before him, determines, presence jury, evidence outside whether or not freely voluntarily right accused waived his to having counsel and to remain silent, and if nоt been told freely voluntarily this the statements were made fundamentally prejudiced by making not been has such giving statements, and acts them alone he has right to waived counsel whether he has been informed rights by of these officers at the his arrest or depend upon cases such not. Each where done is particular facts case. Where is shown to product triаl court that made were statements may of the will confession own free defendant’s be properly necessary it is such admitted. case that he is under the accused arrest rеmind obliged reply if he did because, answers so, might him, inducement, when there no used produce threat such statements, fear or made voluntarily Boyer, made. 61 were police P.2d 936. The fаilure Wash.2d 378 advise a defendant a fact to so sheriff determining whether the confession was vol consider untary. trial court on the words, In other question pro on this determines whether or nоt and con fundamentally prejudiced in his defendant by making in the case statements to trial at a defense This of counsel. line of reason without advice officers opinion of in line with the Jackson v. ing to be seems us L.Ed.2d 1774, 12 In the S.Ct. Denno, U.S. appear now under consideration it does not case objection made to the confession at the in error as far as whether made, and, time was fundamentally prejudiced, confession is in line *6 testimony the with when he took stand. assigned argued that this con
It and error corpus proof prior to of the deliсti. fession was admitted Kyle assignment State, In answer to said in we v. 170, 173, 537, 208 Tenn. 344 S.W.2d that: 538, long “In we have followed rule that a this State the in some the absence of confession is not admissible proof corpus [made] of delicti and a confession upon such cannot be sustained. uncorroborated evidence Ashby See State, v. S.W. (Anderson) Criminal Evidence likewise Wharton’s in the This Court Section 357 and Volume 2. said corpus Ashby supra: ‘while cannot be case, delicti yet by the confessions alone, confessions established may in direct evidence, connection with taken corroborating if from all them, or circumstantial, and, together corpus so considered with of guilt person reference there- of the with delicti beyond a it is doubt, reasоnable to is established duty jury it in held of to convict.’ was Likewise necessary this evidence not this case it was corpus precede introduction the confes- delicti though it in so; but if do came sion was best wrong not would reverse.” order present clearly judgment facts case our bring above there what have said it within we here. no error plaintiff argued error
Next it an was not allowed extension prejudiced because days thirty days judgment within the after ninety prepare exceptions. within which to his bill of The record plaintiff prepare that- (cid:127)shows error file did his bill exceptions by within the allowed court, time any way why plaintiff not in does show or how in error prejudiced having longer was in wise prepare exceptions. which bill of think within We (cid:127) . was no error here. . questions 'After full in consideration of volved we are satisfied thht the evidence came case supra, within the rule of Marable and since jury saw to believe under these fit that this circumstances happened they presumption is what overcome trial below of the innocence of error, presumption guilt. and now carnes here Clearly preponderate this evidence does such *7 finding. holding, judgment
It is our below therefore, be affirmed. must
Opinion Petition Rehear very filed courteous, Counsel for Harris have herein dignified petition peti- consciеntious and to rehear. This though merely reargument argued tion what original at bar this and in the herein. briefs It is true a number of other in this authorities cited are petition but all rehear are in effect covered original later decisions which in our were considered opinion. reviewing opinions, it is, Thus after we gained reviewing concluded that could opinion. them in further agаin very forcefully facts are likewise
The argued petition reading we in but this rehear,
590 cir originally sufficient concluded that were jury this was if believed them,
cumstances, etc., original opinion. We have stated in our sufficient as petition to changed opinion. find our Since we reargument merely justify it does rehear consists 79 763; 76 Tenn. rehearing Court. under Rule of this Fidelity N. v. United & RR. Co. Louisville 7; Tenn. 148 S.W. Guaranty 658, 691, 693, Co., & Tennessee appears Volume the rule petition to page Reports this reason For is denied. rehear