*1 Error, Plaintiff Keith, Paul Error. Tennessee, Defendant State 758. Term, 1965.) December (.Nashville, April 22, Opinion filed 1966. Rehear Denied June 1966.
Petition to *2 Springfield, Bracy P. and W. Bryant, Je., Lance B. plaintiff error. Attorney George General, and F. Robert McCanless, Attorney General, and James Hedgepath, Assistant F. prose- Attorney Springfield, General, District M. Potter, in error. for defendant court, case in the trial cuted the *3 opinion Court. delivered the Me. Justice White de- first March 26,1964, indicted Paul Keith was January gree James Osborne. 11, on murder, 1964, 23, 1964, on case, trial of the June the first On mistrial. agree court declared a and the was unable April again and tried on was The case de- guilty the second defendant found the imprison- years punishment ten gree, fixed his at and being overruled, Upon a new motion for his ment. appeal granted to this Court, an was the defendant perfected. seasonably been has
The facts are generally undisputed, with exception of what occurred immediately before and after the fatal blow struck. The defendant and the deceased were brothers-in-law, the deceased married the defend- having ant’s sister. On the night the defendant killing, Keith, a named Howell man a Mr. La- Pope, and Mrs. Maye, and their children, were neighbors, in the visiting Osborne home in Robertson County. According to evidence there was some heavy drinking whiskey both and beer. Everyone seemed to good spirits. defendant and the and LaMayes deceased were play- ‘‘ ’’ ing game Rummy card called when the defendant and the deceased an got argument into over the rules and started and then on floor. fighting They scuffling separated and the defendant ordered to leave house.
Mr. Pope testified that when the defendant was ordered from the home he, Pope, Mr. left with him, suggesting he would take him Pope home. further testified that he and the defendant went outside into his got truck, whereupon defendant said, “Wait minute.” The de- fendant then went back to home thereafter shortly Mr. Pope heard screams Edmond coming from the house. LaMaye testified after the defendant went out door, he his wife discussed their possibility deceased. with the He said deceased leaving that the his convinced them wife should not leave but *4 stay little longer. a while
A short time after the defendant left house, went into part deceased the back of the house, picked up an ax and hurriedly went his door. open- front After the front door and one onto step out ing taking- front porch, the defendant hit deceased in piece the head with a pile of from of wood stacked "wood, stove beside a living him room. door, front and knocked into back Deceased one week from the blow. died later theory essentially of of the case
Defendant’s is testimony npon being His ordered self-defense. is that porch, stepped honse front to leave the out onto the he wiped bleeding, apparently his because nose which was pocket fight for a of the into and reached his inside, cigarette cigarette. lighting stated that before He noise, the deceased he heard looked and saw around posi- threatening coming him ax drawn at with the whereupon piece the stove wood reached of he for a tion, motion the deceased. defendant and with one struck The Pope’s testimony defendant had the witness denied Pope’s pickup gotten leave, then had into truck gotten gone back out to the house. only person after he
The who saw the defendant other eleven-year night of son was the old left the house boy, Bay he Osborne, deceased. testified This swinging piece was outside and saw defendant porch deceased home, before stove on wood boy porch. stepped however, not, did onto the The out see the blow. fatal assignments involve error all first five preponderated question evidence whether regard particularly jury,
against with verdict question we think all, self-defense. First to the from the defendant’s evidence, there even conclusive testimony, own to show that the crime degree could second committed. conclusively killed struck and found that the defendant aforethought. malice with the deceased *5 400 * * * this
It well-settled in the of is State verdict that jury, approved by judge, the the the accredits testimony of the witnesses the State resolves for and theory all of the conflict in favor the of State. Such presumption also the verdict removes of innocence presumption guilt and accused raises and his puts upon showing the burden Mm, here, that preponderates against in evidence verdict and State, his 15, favor of innocence. McBee v. 213 Tenn. (1963), and 372 173 numerous cited S.W.2d cases therein. only in evidence favor defendant’s was that
he therefore, committed the crime and, of self-defense should be excused. It must remembered, however, pleaded defense self-defense for the to be well out, made defendant must convince engendered gen actions in deceased’s the defendant a great bodily uine and well-founded fear harm. Nance Cathey (1962); v. 210 Tenn. S.W.2d 327 (1951). 191 Tenn. no While there conflict evidence is deceased presented coming threat formidable out onto the porch testimony conflicting an ax, with there toas put defendant whether was life fear his contrary, threat. On there is considerable evidence attempting that defendant was hot to avoid deceased, waiting porch Mm either was for out on the or volun- tarily went back to the house to deceased after encounter starting to leave. may waiting that he fact have been de supported by already had
ceased is
evidence that he
swinging
his hand
it,
stove wood in
immediately
lie
after
crossed
deceased was struck
apparently believe,
It is difficult to
threshold.
wielding
did
that as
believe,
deceased
position,
threating
for the
in a
reached
defendant
ax
picked up
piece,
across
and hit deceased
*6
wood,
stove
one
in
head, all
the time that
deceased to take
the
it took
step
jury
in
resolved this conflict
outside the door. The
by
supported
were
favor
and we
of the
think
theory.
strong
rejecting
evidence
defendant’s
in
by plaintiff
the
in
It is also asserted
error
passion
jury
and
harsh and evidenced
verdict
was
clearly
prejudice.
evidence
before,
we
stated
the
As
have
degree murder.
a
of second
The
conviction
warranted
years.
degree murder is ten
minimum sentence for second
opposed
leniency
sentence
show
seemed to
assignment
reject
of error.
so we
this
harshness,
assignments
remaining
a
of error deal with
dis-
jury
judge
the
after the
cussion between the
and
charge
had
submitted
the
formal
and
written
was
jury re-
deliberating
time
some
After
for
retired.
question:
a
to the courtroom with
turned
we
a
informa-
need
little
Honor,
FOREMAN: Your
guilty
defendant
tion. If
one
we find
charges,
say
charge, are
I won’t
we allowed
eligible flat.
set the
Where he won’t be
sentence
parole
length of time.
until
certain
legislature
sir.
in Tennessee
THE
-The
COURT: No,
you
gave
I
and
and
sentence law
us an indeterminate
no control over that.
dispute
Well, that’s
FOREMAN:
what we
in
about
about.
sure
that.
We weren’t
It is
error
insisted
reversible
here
committed
(1)
jury improperly
in
and
discussed the
question
parole
(2)
for the
this
defendant,
discus-
supplemental
sion
nature of
instructions which
required
writing.
to be
question
impropriety
On the
jury discussing
pardon,
matter
or
leading case in
State Williams
191 Tenn.
this
(1950).
456,
If we man for a this sentence term prison stay will mean will have to that he whole time?
The trial answered: necessarily. depend upon good Not It would the be- parole of havior the defendant and the of attitude the board under the law, indeterminate sentence you something nothing with which have do. to This Court reversed and remanded a trial, for new noting: jury instant case would the have sentenced the they penitentiary
defendant to some term in the had believed he would have serve full the term of the sentence. apparent
isIt that the harshness the sentence assessed by jury, might imprisonment the have life been apprised possi- of death had instead not been
403 calling bility parole, for was a determinative factor particular in this case. reversal punishment capital other cases in which
Two
proper
approved
should
the
meted
what
have been
out
upon
question
response
from
the trial
parole.
jury
State,
523,
515,
In
177
about
Porter v.
Tenn.
(1941),
Tenn.
171
198
151
Hale v.
S.W.2d
judge responded
(1955),
S.W.2d
only
simply
admonition
instructions
with the
your
jurors
govern
embodied in
written
actions
your possession.
charge which is in
While A.L.R.2d 69 in 35 is an annotation we note that there cases (1954) least some there at indicates that given in information where correct in other states 404 questions
response jury’s parole regarding ato not does prejudicial result death error —even sen- where imposed. tence was On hand, other there are some body any in which even a mention of board cases or with parole powers pardoning has or been ruled reversible Taylor Ala.App. 42 v. error. 174 So.2d 385 (1965). judge It has even that been held the trial where properly question,” “I answered cannot answer that parole imprisonment, when about on asked he never- life should told the theless to dismiss such con- from mind, siderations their and on his failure do given so, defendant sentenced to death was a new (1955). 241 Conner, trial. State v. N.C. 468, 85 S.E.2d Virgina Wansley In a recent case, Commonwealth, v. (1964), 205 Va. 412, 137S.E.2d it was held reversible response question error on where, from the simply about boards, stated that “ [t]hey powers, regulations,” have certain rules and anything admonished “cannot do concern * * * ing [must] not be concerned to what, if ” anything, happen will him at some future time. It important to note also this case the death sen given. tence was in Scarber
However, 226 Ark. jury inquired (1956), toas whether the sentence gave possibility would be assured without the parole. The stated
* ** clemency strictly matters of within power department of the executive and that such mat- jury’s ters into the should enter final decision solely which should be based on the evidence and the * * given them law court
405 though death This held not to even was be error directly imposed not sentence and the was did clemency. jury order the not to consider matters Quilling, In State 751 363 Mo. 256 v. (1953), penalty was a the death case. assessed inquired During jury its deliberations the had about the penalty replied: being “deviated from.” court penalty, you
Well, is the whatever is the assess penalty. happens you Now, what after can’t con- that, go just yourselves, you sider into to have assess penalty you assessing at have in whatever, if mind penalty, you going decide to do. whatever are something Now, whatever it comes of after that you privileged anything say about goor into further. response prejudicial
This was not to be error, held merely “irregularity.” an Ca.App. (1953),
In Jones v. 330, S.E.2d twenty defendant was sentenced maximum of to the years manslaughter. original charge voluntary In it set was instructed that a maximum and could prescribed by minimum within limits sentence statute. inquiry Later the from about answered an parole by stating
** *
proper authority
fix
shall
rules
the State
regulations whereby
serving
defendant after
punishment
by you may
fixed
the minimum
be allowed
penitentiary.
to serve the remainder
outside
jury,
court’s
however,
also instructed
they must
were matters which
not be
answer
these
colloquy.
concerned with.
no
in this
There was
error
proper response
inquiry
No doubt the
about
possibility
approved
of a
would
supra.
Pennington
Porter
cases,
and Hale
In
(Tex.Crim.App. 1962),
response
[Y]ou must assume that the defendant serve what- will any, by ever term of if confinement, assessed you parole and will not consider matter of in ar- riving your at verdict.
Again, in another Texas case, DeLaRosa v. State, (Tex.Crim.App. 1958), Tex.Cr.R. S.W.2d 544 approved: this instruction was [Y]ou you give are instructed that the Court can not any concerning information the matters indicated; you and your further, are instructed that in delibera- you Charge strictly tions in case will adhere to the given you governed thereby. heretofore and be In Texas cases these the defendants had been sentenced thirty forty-five years, respectively. and supra, approve
While the Hale and Porter eases, specific language by judge, certain the trial it cannot be any magic said that there are words must which be stated prejudicial in order to avoid In error. the instant case, matter in was, fact, never mentioned judge. simply legislature the He stated in “the gave Tennessee us an indeterminate law sentence and find, you preju and I no control have over that.” no We dicial in error this. assignment next concerns error whether response inquiry of the trial to the should writing. says: in been
have T.C.A. sec. 40-2516 judge’s every felonies, the trial all word On given writing charge tó before shall he reduced part jury, delivered of whatever shall be it no wholly orally any in shall such be delivered case, charge writing. Every written, shall be word writing, with the read shall be filed from upon papers, it them jury shall take out with and the retirement. their merely imperative, and not statute valid
This
Taylor
directory,
must be
v.
observed.
(1953). However,
Tenn. ** * ‘ charge required by [t]he law to or instruction may only writing is the court reduced that which be say regard principles to the to the * * * applicable evidence; to the and to the law case form verdict’ statements as to the or character writing. Taylor supra; Gamble need *11 (1964). 48 26, 215 Tenn. 383 v. S.W.2d judge jury’s response of in- the trial to the While the quiry the the at bar did not concern form or in case clearly of it also not concern character did the verdict, applicable principles law to case and to of the “the brevity judge’s response and the The evidence.” merely warning it to that was not to con- fact inquiring force us to about, sider matter this statement not intended to be conclude scope sec. 40-2516. within of T.C.A. Wyo. 52 69 Carroll, 29, 542,
In State v. P.2d 558 552, (1937), trial statement similar to that made lengthy specific but more case at bar more of the improper parole. pardons It was held about orally apparent in made contraven- this statement 408
tion similar of a statute to that of this State. In State v. (1959), McGee, 361 Mo. 234 587 it was 309, S.W.2d held unnecessary writing, in that a similar statement be noting court were not instructions on the these law required writing. such as are the case be in To the Lammers, same effect is State v. 171 Kan. 237 P.2d (1951). plaintiff Counsel for in error case of Black cites being (1956), Tenn. controlling disposition make in must the case we clearly distinguishable at bar. That case is from the in stant case. returned to There the courtroom to ask “malice” did oral define which he ly. importance definition of malice of utmost in any case; law we think authors that the clearly supple of T.C.A. sec. 40-2516 intended such writing. mental instruction to be Court in correctly case so found and the conviction. reversed any assignments we find no Therefore, merit plaintiff error, error’s conviction must be affirmed. and DteR, Chattin and Cee-
Buenett, Justice, Chiee concur. Justices, son,
On Petition Rehear Mb. Justice White. petition reading
Prom our we rehear, opinion authority nor that it no new it does cites *12 point any original by in to facts overlooked the Court its opinion. of Therefore, under Rule 32 of Rules the petition a Court, However, not well taken. number the is petition of in four cases are referred to the such of upon specifically in onr cases commented cited original opinion. questions appeal presented main in this
One by judge question the answer trial relates to the by jury pertaining possibility of asked the foreman to the original parole opinion, In we the our defendant. acknowledged jurisdictions are the which allow there judge fully possibility on the of comment pointed jurisdictions and also out that are other there not allow Three which would to comment at all. the by plaintiff petition in cited error in the cases the the examples posi- are of either one other rehear or the just to, tions referred cases not determina- these presented opinion. issues in this tive of the guilty It misconduct contended was length first determined the which because it of time plaintiff serve then determined error should degree guilty. The of homicide for which was he found Wright, plantiff Brinkley ex rel. in error relies on State (1950), as new material Tenn. points jury in to the error the case made below. corpus pro- Brinkley case was habeas
However, County, brought Shelby ceeding Circuit Court against judgment petitioner, attacking in which crime committed determined the imprisonment degree for a term would be second petitioner years. insisted under ten language 39-2404, now sec. Section T.C.A. Code impris- the term of determine was authorized Brinkley only. that the trial contended onment prison degree crime, his based on to determine *13 imposed jury. by term The section involved follows: jury before whom the offender is as- tried, shall
certain in their verdict whether it is murder degree; first or second and if the confess his accused guilt, proceed degree the court shall to determine by jury, upon of crime the verdict of a the examination testimony, give accordingly. and sentence any relationship "We not see do whatsoever be Brinkley tween the facts case those in the present nothing suggest case. There is in the record to any improper that the acted manner. Petitioner by does conclude from the result it reached incorrectly improperly peti the sentence determined degree tioner should receive before it determined the argument the crime. We find this without merit. permitted speculate Even if we were about what trans pired in the confines of or in room, minds system jurors, rectify our trial does not us allow faulty sequence especially jury, of consideration where once been the correct instructed sequence. petition great
We have read with able rehear nothing justify interest but we find therein that would original opinion. changing the Court in petition is, to rehear therefore, denied. Burnett, Justice, Dyeb, Chief Chattin Ceeson, Justices, concur.